Burkley Envelope Co.

BURKLEY ENVELOPE CO. Burkley Envelope Company and Printing Specialties and Paper Products Union Local No. 412 , International Printing Pressmen and Assistants' Union of North America, AFL-CIO. Case 17-CA-2878. May 31,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 28, 1966, Trial Examiner Harry H. Kuskin issued his Decision 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 Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision together with supporting briefs. The Respondent also filed a brief in answer to the General Counsel's exceptions and brief. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER 43 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Burkley Envelope Company, Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This proceeding was heard at Omaha, Nebraska, on October 4 and 5, 1966. It stemmed from the efforts of Printing Specialties and Paper Products Union Local No. 412, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, herein called the Union, to become the exclusive bargaining representative of employees of Burkley Envelope Company, herein called Respondent. The complaint herein, as amended at the hearing, issued on June 14, 1966.' The questions presented are (1) whether Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the National Labor Relations Act, as amended, and (2) whether Respondent, in violation of Section 8(a)(1), interfered with, restrained, and coerced its employees by offering and granting them wage increases and other benefits for the purpose of discouraging their union activities. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the General Counsel and Respondent,2 I make the following: ' The General Counsel filed a motion to strike the Respondent 's answering brief on the grounds that Respondent's counsel had engaged in unwarranted name calling and improper argument . Respondent filed a motion in opposition to the request We find that there is considerable merit in the General Counsel's position The Respondent 's answering brief is scurrilous in nature and makes attacks on the Trial Examiner's and General Counsel's integrity and competence which we find are wholly unwarranted and unfounded Nevertheless, as this brief is addressed in part to the issues of the case , the General Counsel 's motion is denied Further, we find no merit in the Respondent 's motion in opposition which, inter alta , moves that the complaint be dismissed because the General Counsel has raised improper, inflammatory matter Clearly, the only improper, inflammatory matter in the General Counsel's motion is that quoted from the Respondent 's answering brief The Respondent's motion to dismiss is denied P The General Counsel requests extensive revisions of the "Notice To All Employees" recommended by the Trial Examiner. We do not agree with his proposals except to the extent that the first full paragraph of the "Notice" is modified to read as follows WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by granting them economic benefits, or by changing the terms or conditions of their employment, for the purpose of discouraging their union or other protected concerted activity, provided, however, that nothing herein requires us to rescind, abandon, or vary any term or condition of employment heretofore established ' All dates mentioned hereinafter are in 1966, unless otherwise indicated 2 About the time of the filing of Respondent's brief, counsel for Respondent advised me by letter, dated November 3, that, although counsel for the General Counsel undertook at the hearing to furnish him copies of 14 exhibits which were withdrawn by them with my permission for the purpose of making copies, in duplicate, thereof and substituting same for the originals , no such copies had been furnished to him He contended further that counsel for the General Counsel "have deprived the party respondent of the full and complete due process to which he is entitled under the law by withholding" such copies and that appropriate action should be taken by me in the premises Subsequently, I received a copy of correspondence, dated November 8, from counsel for the General Counsel to counsel for Respondent which acknowledged the failure to furnish copies of the exhibits as "an unfortunate oversight", indicated that the copies were being enclosed with the letter, and stated that they would not oppose any motion by Respondent requesting additional time to submit a brief covering any matters prejudicially affected by the oversight Thereafter, on November 14, Respondent requested permission to submit an addendum brief, which I granted by telegraphic order, on November 16 Although the due date of the addendum was fixed as November 28, no addendum has been filed with me In all the circumstances, I find that Respondent has not been prejudiced by the fact that counsel for the General Counsel did not furnish copies of the withdrawn exhibits until on or about November 8 165 NLRB No. 17 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, and Respondent admits, that it is a Nebraska corporation engaged in the manufacture and sale of printed business forms at its principal place of business in Omaha, Nebraska; that, during the preceding 12-month period, it made sales to customers outside Nebraska of products valued in excess of $50,000; and that during the same period it purchased directly from outside Nebraska goods valued in excess of $50,000. I find, upon the foregoing, as Respondent further admits, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Glenn Buell, the International representative of the International Printing, Pressmen and Assistants' Union, testified credibly that the Union organizes employees, negotiates wages, rates of pay, hours, and other conditions of employment with employers and that "committees from the rank-and-file take part in the meetings or contract negotiations." I find, therefore, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-Sequence of Events Organizational activity among Respondent's employees began early in January as the result of a discussion at a bowling alley in Omaha, between Kenneth Morehouse, chairman of the Union's organizing committee, and Robert Willis, an employee of Respondent. Also present were a few of Respondent's employees. Morehouse told Willis and the others "about the fine points of the Union," and responded to questions by Willis as to what the Union had done in the role of bargaining representative for the employees at Federal Envelope Company, a competitor of Respondent, herein also called Federal or Federal Envelope. Lou Nath, Respondent's plant superintendent, was in the bowling alley at the time. Early in February, Morehouse obtained from Willis, during a visit to Willis' home, a list of Respondent's employees. After contacting employees whose names appeared on this list, the Union's organizing committee arranged for, and held, a meeting on March 8 at McCoy's Cafe in Omaha. Eight of Respondent's employees attended this meeting; i.e., Betty Hulsebus, Judy Renshaw, James W. Renshaw, Shirley E. Haith, Ida Poole, Arlyn R. Peterson, Anna I. Brannen, and Robert Willis. Present on behalf of the Union were Morehouse, Glenn Buell, International representative, and a Mr. Sullivan, a vice president of the Union and an employee at Federal Envelope. Buell was the chief 5 Buell accompanied Morehouse to Katzenstem 's home. 4 Employee Poole testified that the meeting occurred after the union meeting and she thought it was March 10. Burkley recalled such a meeting on March 9 or 10, and Lou Nath, plant superintendent, placed this incident "around the first of March." In the light of the entire record and the fact that Poole's testimony that the meeting with Burkley followed the union meeting in point of time is, in substance , corroborated by Burkley. I credit Poole, who impressed me as a reliable witness, and find that the meeting took place on March 10 5 Nath, at first, said that he suggested the meeting but quickly added, "let me rephrase that. I won't swear I suggested , but in the spokesman and explained the benefits of representation by the Union in matters of wages, and working conditions, while Sullivan explained what the Union had accomplished for the employees at Federal Envelope. All the above-named employees signed union authorization cards during the meeting. Two more employees, Sherman Paul Katzenstein and Joyce E. Henry signed authorization cards later that evening in the course of a visit to their respective homes by Morehouse.3 The following day, at the plant, employees Phyllis Fitch, Dennis Ray Petry, her son, and John Chambers also signed authorization cards. Phyllis Fitch testified credibly that "near 5[o'clock]" on March 9, after she had signed the authorization card, employee Richard Saul told her that the employees were going to get a raise. In fact, a 10-cent-per-hour across-the- board raise and retroactive to January 1 was put into effect on March 11, 2 days thereafter. It was the first retroactive wage increase at the plant; and the paycheck of each employee for the payroll period ending March 10 included the total amount of the retroactive pay. Thereafter, on March 10, four women employees met with Burkley in his office under the following circumstances:4 Lou Nath was approached by one or two female employees with a complaint about their restroom facilities in the plant, namely, that they were inadequate and dirty. To remedy the inadequacies, these employees asked for a sink, "some closets and things to keep their clothes in." Nath suggested during this discussion that they see Alfred Vincent Burkley, Respondent's president and treasurer, and that three or four of the female employees should accompany him at the time.5 Nath appears to have arranged such a meeting for that very day with Burkley. Thereupon, four female employees, including Poole, and Nath met with Burkley in his office and voiced their complaints to him. According to employee Poole, in addition to the above-mentioned inadequacies, complaint was voiced about the need for tables and chairs in the lunchroom. She testified that Buikley agreed that the complaints "were logical and that he would do something about them," and that, in fact, Respondent began a few days later "working on [their] complaints by putting in a washbasin, remodeling the restroom, got us tables and chairs." It is also Poole's testimony that during this session with Burkley, the latter "told them that they were going to get this raise because Federal Envelope had given a raise to their employees and he did this in accordance [sic]." About this time, too, according to the uncontradicted testimony of employee Chambers,6 Nath came to him in the plant and told him that he was going to get a raise of 10 cents an hour and that it would be retroactive to January 1.7 The first overture to Respondent on the matter of recognition of the Union occurred about this time. However, the actual date thereof is sharply controverted, with Buell placing the event on March 10 and Respondent matter of discussing it with these girls it was decided that three or four of the girls should accompany me to see Burkley ..." I am persuaded from my observation of Nath on the witness stand and the inherent probabilities of the situation that Nath suggested the meeting 5 Chambers fixed the time as a couple of days after March 9, and as about a day after he signed the union authorization card, the latter occurring on March 9. ' Burkley testified he issued instructions to his secretary to change the pay scale and to make it retroactive and told Nath to "tell the people." BURKLEY ENVELOPE CO. 45 placing it several days later; i.e., on March 14. Thus, Buell testified that he attempted to get in touch personally with Burkley on March 10, that it proved abortive, and that he renewed the attempt on March 15, again without success. More particularly, his testimony was as follows: When he arrived at Respondent's office on March 10, he found a lady in the office other than Koons, Burkley's secretary- receptionist. He handed her his calling card and she, in turn, brought the card to Koons. Whereupon, Koons appeared at a "sort of a counter" in the office. He asked for Burkley, and Koons replied that Burkley was not in. He then gave her a handwritten, undated, note with the following message addressed to Burkley from him: Please be advised that our organization represents a majority of the production and maintenance employees of your firm as defined by the National Labor Relations Act. I had hoped to contact you personally to assist you in avoiding unnecessary cost and inevitable problems. If you to [sic] contact me personally. Please telephone number on calling card." Thereafter, he visited Respondent's office on March 15 in a second attempt to contact Burkley. He was again told that Burkley was not in, and left with Koons a second note, also undated, which said "about the same thing" as the first note. During the second visit, he made no reference to, or inquiry about, the card and note he had left there on March 10. The following day, March 16, he telephoned Burkley's office and was informed by an unidentified female that Respondent was represented by a Mr. Reynolds of Midwest Employers Council, Inc., herein called Midwest. He tried, within 15 minutes thereafter, to reach Reynolds on the telephone but to no avail. Koons, testifying on behalf of Respondent in respect to the foregoing, controverted Buell's testimony in that, according to her, Buell appeared at the office on March 14, only. She testified that, although she was at work on March 10, she did not see Buell that day, and that "it is not likely" that he was there on that day, as the second girl" in the office would have brought this to her attention in line with the girl's routine of "[giving her] all calling cards, all information coming into the office so [she could] look at it and then give it to Mr. Burkley, so [she could] tell Mr. Burkley what has transpired." According to Koons, however, on March 14, "between 8 and 8:30 and 10 o'clock" the second girl in the office came to her while she was under pressure "figuring a price" for one of Respondent's salesmen to take to a customer, and handed her Buell's calling card, which bore the legend that he was an organizer of International Printing Pressmen and Assistants' Union of North America. The second girl reported to her that the visitor, Buell, "had asked for Burkley and he wasn't there so he wanted to talk to somebody so she came to [her]. .. " Whereupon, Koons told the second girl that she would not be able to come out right now but to tell Buell that if he could come back later she, Koons, would have a chance to talk to him. She saw Buell for the first time later that day, although she was not sure as to the time, thinking that it was right after lunch. On this occasion, she "was at [her] desk and [she] was the first one Buell had to talk to because [she] was sitting there." At that time, Buell asked her for Burkley but Burkley was not in. Buell thereupon left with her the note, which is in evidence as General Counsel's Exhibit 13. While Koons did not have an independent recollection of the day of the week on which Buell's visit occurred, she based her testimony as to date (1) on the fact that, in her office files, Buell's calling card and note were stapled to a letter, dated March 15, hereinafter discussed, which Burkley sent to Buell in response to Buell's note, and (2) her asserted knowledge that Burkley "took care of it the very following day" and wrote the letter. However, Koons' testimony as to the date is in direct conflict with Buell's credible testimony, based on his independent recollection and reinforced by a reference to his diary that he was in San Antonio, Texas, during that entire day and that he went from there to Omaha, Nebraska, where Respondent's plant is located, arriving at 11:34 a.m. on March 15. I am persuaded that the truth lies somewhere in between the versions given by Koons and Buell, as set forth above. Thus, I am satisfied that Buell testified credibly that he was not in Omaha on March 14, as Koons would have it, but in San Antonio, Texas. On the other hand, I am unable to find that Buell appeared at Respondent's office both on March 10 and March 15. I find Buell's testimony in this respect unconvincing. Buell has held the position of International representative "going on 15 years." He impressed me as intelligent and knowledgeable in the labor relations field. Yet, if believed, Buell's actions on the important issue to Respondent's employees and to the Union, of recognition, belie such intelligence and experience. Thus, according to Buell, not only did Buell leave an undated note with Respondent's office help on March 10, but he apparently kept no copy thereof, and, when his note evoked no reply from Burkley after several days, he went through the same routine, a second time, on March 15, again leaving an undated note saying "about the same thing" and again keeping no copy thereof, and he did not, during his second visit, make any reference to, or inquiry about, the card and note he had left there before. I find it difficult to believe that one so versed and experienced in labor relations would not, on the second go around, have put himself on record as to a hitherto unanswered recognition demand in a more definitive way than by a repeat performance with an undated handwritten note of which he had no copy, and would not have, at least, inquired as to why he had not had an answer to his prior note. Further, with respect to some of the details of these two claimed visits, I note that, while Buell appeared definite about the dates of his visits to Respondent's office and was sure that there were two female employees in the office, he was not sure, at one point during cross-examination, whether he contacted the same person on each occasion and, at another point, stated that he left the card and the note again with the same lady. In all these circumstances, I am persuaded that, as Koons testified, Buell appeared at Respondent's office concerning the matter of recognition of the Union by Respondent on only one day and that rather than making visits on two separate days to that office, Buell appeared two times on the same day. And while I find nothing in the record which would allow me to fix the date to a certainty, I find that to do so is not a decisional imperative here. For, I am persuaded, under all the circumstances, that whether the visit occurred on March 10 or 15, the dates testified to by Buell; on March 14, as Koons testified; or during the interval between March 10 and 14; no adequate basis exists in this record for finding that, as of March 10, when 8 This note was produced by Respondent, under subpena, and is in evidence as G C Exh 13 8 This individual did not testify and her name does not appear in the record 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent met with four women employees concerning their grievances and agreed to remedy them and when Respondent made known to some employees that they were receiving a retroactive wage increase,10 Respondent was aware of a request by the Union for recognition as the majority representative of its production and maintenance employees. By letter to Buell, dated March 15, Burkley acknowledged learning from the receptionist that Buell had given her a "handwritten note stating that [Buell] represent[s] [Respondent's] employees." He added, inter alia, that he "doubted seriously" such representative status, but that, if Buell felt that he had such status, "the proper procedure would be to determine this once and for all through the democratic process of a secret ballot vote conducted by the National Labor Relations Board," and also that further correspondence in the matter should be directed to Respondent's labor relations counsel, Mr. James Reynolds of the Midwest Employer's Council in Omaha." This letter, got a belated, undated, response several pages long, by mail, from Buell.12 In his letter, Buell commented, inter alta, that it was unfortunate that his "several informal attempts to contact [Burkley] have been unavailing to date," manifested his displeasure that Respondent had retained Midwest and indicated that the Union "had no choice but to file charges with the National Labor Relations Board when the Midwest Employers outfit entered the picture," and asserted that (1) the Union was again stating "formally this time" that it has been designated by over 70 percent of Respondent's employees in an appropriate unit of production and maintenance employees to act as their collective-bargaining representative; (2) the Union was making this "second request" to prove its majority by a card check through a mutually agreeable disinterested party;13 (3) it was also requesting of Respondent that it furnish the Union with a list of names of employees in the aforesaid unit, along with their addresses, classifications, rates of pay, and most recent date of hire; and (4) it was requesting that an early conference be arranged for discussion of recognition and contract negotiation. In the middle of April, Buell called Reynolds' office on the long distance telephone and was informed that "Reynolds was no longer handling Burkley Envelope" and that Buell should talk to Mr. Rasmussen. Rasmussen returned the call in response to Buell's request, within 12 hours. During the ensuing conversation, Buell insisted that there was no doubt of the Union's majority among Respondent's production and maintenance employees and asked that information be furnished, as heretofore described, which Buell said was necessary in order to enter into collective bargaining. According to Buell, during this conversation, Rasmussen did not question the Union's majority status but told Buell that he was not prepared to 10 As appears hereinafter, the decision to grant the aforesaid wage increase occurred on March 8 or 9 " Reynolds is not a lawyer Dayton Rasmussen, Jr , as already noted, serves as general counsel to Midwest Burkley testified at one point that "when [he] found out an attempt to organize [Respondent's] employees was being made, [he] retained Midwest Employers Council to handle the matter because [he] felt [he, himself] would not know how to handle this thing properly " it There is an apparent propensity on the part of Buell not to date his written communications. With respect to fixing the date of this letter, Buell testified that it was either the latter part of give the information to Buell and that "he earned his living by stamping on lice like [Buell]" and, before hanging up the phone, Rasmussen added that Buell could go ... himself. "14 Respondent contends, in effect, that this testimony as to "stamping on lice like [Buell]" and as to the obscene language is impugned and disparaged by Buell's own testimony, and further that the above testimony refers "not to the agent's antiunion animus but animus towards Buell personally." Since it is sufficient for purpose of this decision to find, as I do, that Buell's effort to bring about collective bargaining at this time was unsuccessful, I find it unnecessary to make findings as to the exact content of the interchange between Buell and Rasmussen. The next communication between Buell and Rasmussen was in the form of a letter, dated July 5, from Rasmussen. In the letter, Rasmussen accused Buell of bad-faith bargaining tactics by reason of his "continued attempts to by-pass counsel and bargaining agent of the employer in spite of repeated notification which has been acknowledged by [Buell]"; he also put Buell on notice that, if more of the same occurs, an 8(b)(1)(B) charge would be filed against the Union.is With respect to the prior request for information by Buell, Rasmussen indicated that "pertinent information that you request is available for your inspection at any reasonable time in the office of the company negotiator. You may have opportunity to make a copy of such data if you wish." And with respect to a mutually convenient time and place to initiate bargaining, Rasmussen added, "The employer's representative stands ready to bargain and will expect your further conduct to be in good faith and on a civil plane." By letter, dated July 14, from Buell to Rasmussen, the Union made its "second request" that the aforementioned information, be forwarded by mail, explaining that because of lack of familiarity with company records, it would be very time consuming to go through each employee's personnel docket for the necessary information and would require an unnecessary and time consuming trip of several thousand miles by Buell into Omaha (Buell's office is located in Los Angeles, California);16 the Union also indicated its readiness to meet and suggested meeting at 10 a.m. on any day, Monday through Friday, in the week of July 25, at a neutral meeting area to be arranged by Respondent. So far as appears, the next and last development was another letter from Rasmussen to Buell, dated July 18. The text of the letter was as follows: First and foremost, the third party-the NLRB-involved in the situation is badly remiss in approval of a stipulation which is of the essence to settling your complaint of March 16, 1966. We understood there was a meeting of the minds on March or the early part of April but he cannot give a definite date 13 The record does not disclose any communication to Respondent by the Union which referred to a designation of the Union by "70 percent" of Respondent's employees, nor does it reveal any prior request for a card check. '" An obscenity 15 Respondent adduced no evidence bearing upon these asserted references to objectionable conduct by Buell i° The subsequent developments on July 18 preclude a determination of whether Respondent was taking an adamant position as to the manner in which the requested information would be furnished. Accordingly, I make no finding thereon. BURKLEY ENVELOPE CO. 47 June 29, 1966, when the NLRB sent two field attorneys here to negotiate a settlement with us, but though they represented that we had reached an approved agreement, we have not received an approved stipulation agreement as promised. We do not entertain to advise our client to recognize you or bargain with you until the stipulation is effected and further action is legally directed by the National Labor Board. As soon as we are advised of the legal status of the parties in the present situation, we will proceed accordingly. It is thus apparent that there was a change by Respondent from a position of "stand[ing] ready to bargain" with the Union, as set forth in the letter of July 5, to that of not recognizing or bargaining with the Union "until the stipulation is effected and further action is legally directed by the Board," as set forth in the July 18 letter. In this connection, the parties stipulated that, on or about June 24, the attorneys for the parties, excluding the charging party, met and discussed settlement of this case; that, as a result of those discussions they tentatively agreed to an informal settlement agreement but that the requisite approval of the Regional Director of the Seventeenth Region was never given; and that, on or about June 29, the same individuals met again and held further settlement discussions which resulted in a tentative agreement to enter into a formal settlement stipulation providing for a Board order and Court decree, but the requisite approval of the General Counsel was denied and, consequently, the formal settlement stipulation was never submitted to the Board. B. Interference, Restratnt, and Coercion The complaint alleges, in substance, that Respondent interfered with, restrained, and coerced its employees by offering and granting them wage increases and other benefits or improvements in their terms and conditions of employment for the purpose of discouraging their union activities. More particularly, the reference is to (1) the hitherto discussed wage increase of 10 cents an hour which Respondent granted on March 11, retroactive to January 1, and paid to the employees in full on March 11 and (2) the promise to four female employees, at a meeting on March 10 called by Burkley to discuss their grievances, to remedy these grievances, and the remedying soon thereafter of the conditions in the women's restroom and the lunchroom complained about. It is true that it is not per se violative of the Act for an employer to announce or grant economic benefits during a union's organizational campaign or during the pendency of a Board election. What is unlawful under the Act is an employer's granting or announcing such benefits for the purpose of causing employees to accept or reject a representative for collective bargaining.17 An employer's motive in doing so is, however, often difficult to ascertain, for seldom is motive established by admissions. In each case, the motive must be ascertained from the total picture consisting of preceding and subsequent, as well as concurrent, circumstances, 18 and the test which is applicable is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of rights under the Act.19 I shall, accordingly, proceed to consider the conduct in its total context. 1. The extent of the Union's activity and Respondent's knowledge thereof As already found, organizational activity began early in January and reached its culmination on March 8 and 9 with the signing of 13 authorization cards, as follows: Eight employees signed cards at the union meeting at McCoy's Cafe on March 8, two signed cards later that evening at their homes, and three employees signed cards while in the plant the next day. While, so far as appears, the signing of the three cards in the plant was not observed by any representative of management, Koons testified credibly, on cross-examination, that the union activity was general knowledge around the plant at that time.20 As Koons explained, other people told her about it and it was "scuttlebut." Yet, Burkley insisted that he had no knowledge of the union activity as of the time of the retroactive wage increase.21 However, in view of Koons' credited testimony, together with the small size of the plant, the fact that Plant Superintendent Nath had, in January, been present in the bowling alley when a union organizer spoke to some of Respondent's employees about organizing the plant, the further fact that Burkley was admittedly aware, at the time he gave thought to giving a raise, of the successful organization by the same union of Federal Envelope Company in Omaha, a competitor of Respondent, and the likelihood that Koons, who was Burkley's secretary-receptionist would, in due course, report to him what came to her attention concerning union activity, lead me to infer, and find, notwithstanding Burkley's denial thereof, that, at all relevant times, he had knowledge of the union activity in progress at Respondent's plant. 2. Respondent's past practice as to granting raises Burkley testified that raises were given upon his instructions and that Respondent had never given a retroactive wage increase before, that he could recall. And insofar as across-the-board increases are concerned, like the one in March, he testified further that, in the past, such increases have been granted only to the women in the plant, and, in those instances, the women had, themselves, initiated the action by making a demand upon a management representative for a raise. Additionally, according to Burkley, "as a general rule [the women] would have a very definite notice of [the raise] but not from him personally," as he would "delegate it down"; and the raise would be included in the next paycheck. With respect to the raises for the male employees in the past, there is also testimony by Burkley that they "were all more or less kind of on an individual basis," and, as to raises for employees in training, as in the case of Chambers who was "Hudson Hosiery Company, 72 NLRB 1434, 1437 , see also N L R B v Exchange Parts Company, 375 U S 405,409 18 N L R B v. Harbison-Fischer Manufacturing Co , 304 F 2d 738, 739-740 (C A 5), Champion Pneumatic Machinery Co , 152 11 N.L R B v Illinois Tool Works, 153 F 2d 811, 814 (C A 7) 10 Koons testified that she first learned about union activities, "maybe two weeks [before Buell's visit], I don't know " 21 Burkley, when asked whether Respondent granted a wage increase in March in order to forestall interest in the Union replied. "I was more interested in them going out to Federal Envelope and getting a job that was what I was afraid of I didn't know anything about a union " 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being trained as a machine adjustor , they were automatic every 3 months.22 3. The wage situation at Federal Envelope Company and Respondent's alleged reaction thereto The record discloses, as already noted, that Federal Envelope Company is one of Respondent's competitors and has a plant in Omaha, Nebraska. The Union herein is the bargaining representative of Federal's production and maintenance employees. Sometime in February, Federal and the Union entered into a collective-bargaining agreement for a 3-year period, which provided, inter alga, for an across-the-board hourly wage increase for Federal's production and maintenance employees, effective as of February 12 and retroactive to January 2, as well as subsequent hourly wage increases effective as of January 2, 1967, and January 2, 1968. According to Burkley, "when [Respondent] found out Federal Envelope had given these across-the-board increases we felt we had better get our skirts clean and get in line so we started thinking about it, we knew we were going to have to sooner or later."23 Burkley, when asked to pinpoint when he first decided to grant the raise, replied, somewhat evasively, "I can't pinpoint it exactly at all, no. It had to be some time in advance, didn't it, two, three, four days, I don't know." At another point, Burkley testified, in effect, that he told Superintendent Nath the week prior to the pay raise to tell the employees about the raise, and, that at that same time, he issued instructions to Koons who was also, present to make the necessary payroll changes. But Koons was more specific about the date in her testimony, saying, "the payroll period ended on the tenth and the payroll figures had to be in on that date. It was quite a job to figure this. I know he [Burkley] came out either the eighth or the ninth and gave me the figures to figure this back. I had to have that much time." Since Burkley's testimony was evasive as to the date of his decision to grant the raise, whereas Koons' testimony on this aspect of the case was forthright and finds corroboration in one of the several dates mentioned in Burkley's evasive testimony, I am persuaded, and find that Koons testified credibly that she was directed by Burkley on March 8 or 9 to make the payroll changes so that an across-the-board wage increase retroactive to January 1 could be granted to Respondent's employees on March 11 and paid on March 11, in full, up to and including the week ending March 10. And I find further that Burkley's decision as to the aforesaid wage increase was reached contemporaneously therewith; i.e., March 8 or 9. In this connection, it is clear that those who did hear of the raise from Burkley or Nath did so on or about March 10.24 Thus, Burkley testified that if March 10 was not a payday (and it was not), "that's the day we discussed [the wage raise]" with the employees. Indeed, employee Chambers was told about it by Nath subsequent to March 9, while at work in the plant, and the four women were told about it by Burkley at their meeting with him on March 10 concerning their grievances. The General Counsel contends that the granting of the retroactive across-the-board wage increase, as well as the promise to remedy, and the actual remedying of, employees' grievances was motivated and timed by a desire to undermine the Union' s organizational drive and defeat its entry into the plant. Respondent insists that its action was prompted solely by legitimate considerations, namely, the wage increase was given so as to get in line with its competitors, particularly Federal Envelope, and the handling of the grievances was in keeping with general practice in the plant. On the basis of the whole record, I must conclude that Respondent's action was in substantial part motivated by the union activities of its employees.25 The timing of economic benefits is, under well- established law, a significant factor in determining whether an employer is making use of them to defeat or thwart union organization.2' For the following reasons, I am persuaded that the retroactive wage increase was so timed by Respondent as to forestall the union activity of its employees. The wage increase was an atypical one in many respects. It was not, like prior increases, initiated by employee wage requests; it was the first retroactive wage increase ever granted by Respondent; it was an across- the-board wage increase for male, as well as female employees, departing from the usual practice of considering raises for male employees on an individual basis; it followed a prior wage increase to many of Respondent's employees in January by a shorter interval than ever before; and it disregarded Respondent' s general rule of giving employees "a very definite notice" of an impending raise. The haste, apparent in the foregoing, to put the wage increase into effect is further evidenced by the fact that Koons was told on March 8 or 9 to get the payroll figures ready for March 11. And this haste is not explained away by the evidence relating to Respondent's contention that the raise was given in order to meet 22The record shows that Chambers received an automatic increase of 10 cents per hour in January at the same time as some male and female employees received a raise, and another automatic wage increase of 10 cents on April 7 He also participated in the March retroactive wage increase, receiving 8 cents an hour retroactive to January 1. 23 At one point, Burkley testified that Respondent had been out of line with Federal Envelope's wage scale in January, and gave the wage increase then, in part, in order to get a little closer to the wage level at Federal Envelope. He testified further that, "in March, they [meaning Federal Envelope] did it again , we found out Federal Envelope had granted across-the-board wage increases and we were out of line. I thought we were closer than we were." Further, although Burkley testified that Respondent's objective was to be competitive, the record shows, in the case of Phyllis Fitch, that she was making $172 an hour under Respondent's new wage scale for the week ending March 10, as against $1 92 an hour for a similarly situated employee at Federal Envelope during that period And when Burkley's attention was directed thereto, he replied, "It depends on what you mean by competitive We were more competitive than we were [sic]" 24 Burkley testified that "they were told by either Nath or some other representative of management Maybe I even mentioned it to some of the gals myself I'm not sure I can't remember the exact conversations but they were told." 25 Cf N.L R B v Whittn Machine Works, 204 F 2d 883, 885 (C.A. 1), holding that , "In order to supply a basis for inferring discrimination , it is necessary to show that one reason for the [action] is that the employee was engaging in protected activity. It need not be the only reason but it is sufficient if it is a substantial motivating reason, despite the fact that other reasons may exist " 26 N.L R B v Albuquerque Phoenix Express, 368 F.2d 451 (C.A 10), enfg. 153 NLRB 430, Greenfield Components Corporation, 135 NLRB 479, 487, Cf Revere Camera Co v NLRB , 304 F.2d 162,166 (C.A 7) BURKLEY ENVELOPE CO. competition. While testifying at one time that he granted the raise to be "right in line" with Federal, and, again, that he was "always trying to stay basically in line with the competition," Burkley later conceded that he did not interpret the word to be competitive as meaning to pay wages on a par with Federal. Indeed, it is apparent from Burkley's testimony that Respondent had, in the past, lagged behind Federal in its wage scale. Nor is there any indication in the record that pressures from employees for a wage increase were extant. In fact, Respondent had just granted many of its employees a wage increase in January. And while Burkley testified to his concern over the effect on the stability of his work force of the February wage increase at Federal, the record is devoid of evidence that he had any intimation of such an effect from any of Respondent's employees. In all these circumstances, as well as the fact that the organizational activity had reached its culmination at the time of the grant of the wage increase and the further fact, as I have already found, that Respondent was aware of the union activity, I infer, and find, that Respondent's precipitate action in granting this retroactive wage increase was, at least in substantial part, calculated to discourage membership in or activity on behalf of the Union, by its employees. It follows therefrom, and I find further, that Respondent thereby violated Section 8(a)(1) of the Act. I also find significant the fact that the hitherto discussed meeting between Burkley and Nath and four women employees concerning the conditions in the restroom and in the lunchroom occurred on March 10. Here, too, the evidence demonstrates` sense of urgency on the part of Respondent. Thus, it is clear that Nath lost no time in reacting to the voicing of these grievances, some of which related to deficiencies that had apparently existed ever since Respondent had moved into these premises in 1960. Indeed, according to Nath, he arranged a meeting with Burkley "probably that very day if [Burkley] wasn't busy." Further, it is apparent from the record that to hold -a meeting with Burkley on grievances was not in conformity with past practice S.27 Also, according to Nath, he acted with dispatch after Burkley agreed at the meeting to remedy these grievances, his testimony being: "I believe I had the secretary call a plumber and a carpenter, possibly that very afternoon or the next day at the latest I would say, and they got to work on it. It took about a week, I would say, before it was completed." Here again, I infer, and find, that Respondent's precipitate action in promising to remedy and in remedying the grievances voiced by these four women was, like the wage increase which occurred contemporaneously therewith, calculated to interfere with the organizational activity of its employees and, as in the case of the wage increase, it was violative of Section 8(a)(1) of the Act. C. The Refusal to Bargain It is admitted , and I find , that all production and maintenance employees of Respondent at its Omaha, 27 Although Nath testified, on direct, that this was the "normal routine," he could not, during cross-examination, recall any specific meetings, "to bung out as such " And while Nath did, on redirect, recall an incident involving a request by employees for rubber gloves to prevent ink stain on their hands, he explained that he took care of this without a meeting. Furthermore, employee Poole could not recall any other meeting with management to remedy grievances, although she had been an 49 Nebraska , facility excluding office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 1. The majority issue As already noted, a claim of majority status and request for recognition were made by the Union upon Respondent via Buell's handwritten note which came to the attention of Burkley, Respondent's president, at the latest, by March 15. Thereafter, by letter dated March 15 to Buell, Burkley indicated that he "doubts seriously" Buell's claim of representation and that the proper procedure, if Buell felt the Union did represent a majority, would be to determine this "once and for all" through a Board election. This letter also requested that further correspondence be directed to Midwest Employers Council, the labor relations counsel of Respondent. Thereafter, Buell sent an undated letter to Burkley during March or early April. In it , Buell indicated the Union's displeasure at the fact that Respondent had retained Midwest and that the Union "had no choice but to file charges with the NLRB when the Midwest Employers outfit entered the picture";28 made a request to prove its majority by a card check through a mutually agreeable disinterested party; and requested certain information needed for bargaining purposes, and the arrangement of a conference for discussion of recognition and contract negotiations. All subsequent communication was between Buell and Rasmussen, the general counsel for Midwest. Rasmussen took no action with respect to Buell's offer of a card check. He did, however, offer the information requested by the Union, offering to make it available at his office, for copying, should the Union desire, and indicating that he stood ready, as Respondent's representative, to bargain. No bargaining has ever taken place. For, on July 18, by letter to Buell, assertedly in consequence of abortive attempts first at an informal settlement and then at a formal settlement of this case,29 Rasmussen advised Buell that he was advising Respondent not to recognize, or bargain with, the Union "until the stipulation [for formal settlement] is effected and further action is legally directed by the National Labor Board." There has been no further communication between the parties. In its brief before me, Respondent contends that the Union lacked majority status. The payroll for the periods of March 7 to 11 and March 14 to 18 furnished by Respondent, in evidence as General Counsel's Exhibit 23, lists 21 employees. Burkley, albeit reluctantly, testified that the exhibit included all Respondent's production and maintenance employees.30 The Union, accordingly needs the authorization of 11 employees to establish its majority status. The General Counsel introduced 13 signed authorization cards which "designate the Union as [the signatory's] exclusive representative for the purpose of collective bargaining for employee of Respondent for 8 or 9 years 28 The charge had already been filed on March 16. 29 In the first instance , the proposed settlement failed to get the approval of the Regional Director, and in the second instance, the General Counsel refused approval and the settlement was not submitted to the Board for its approval ao Thus, after prodding by the General Counsel, he answered, "I would assume it is correct." 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours, wages, working conditions and union shop." All these cards, except that of Phyllis Fitch, bore names of employees who were clearly in the unit at the time of the Union's bargaining request and thereafter, and they were dated either March 8 or 9. The language on the cards was unequivocal. However, in its brief, Respondent questions the authenticity of the signatures on the cards and contends that the effect of the cards was misunderstood by the signatories and that the signing was coerced. I find Respondent's position in all respects to be lacking in merit for the following reasons: As to the authentication of the signatures, Morehouse, the chairman of the Union's organizing committee, testified credibly that all eight employees at the March 8 meeting signed the cards in his presence and that employees Katzenstein and Henry signed the cards in their respective homes, also in his presence.31 Further, employee Poole, who was present at the March 8 meeting and signed a card, also testified that all the employees signed in her presence. And employees Chambers and Fitch, who signed on March 9, identified their own signatures on their respective authorization card S.32 Also, Fitch, who is the mother of Dennis Ray Petry and who handed him the card which he signed in the men's room and returned to her shortly thereafter, testified that she knows Dennis' signature and that the signature on the card is his. It is thus clear, and I find, that the signatures on these 13 cards were properly authenticated.'i•t With respect to the contention that the effect of the cards was misunderstood by the signatories Respondent urges, in its brief, that Poole testified that the organizer (1) told the employees that if they signed cards, he could tell Burkley that they were interested in a union; (2) said that a percentage of cards would have to be signed "before they could have an election"; and (3) promised an election. However, the record supports the first two items, but not the third. Poole did not testify that the organizer promised an election. Her testimony in this respect was that, "he lust told us it could be done. `34 In addition, Respondent contends, in its brief, that during the meeting at which the cards were signed, International Representative Buell admittedly made "coercive statements of sufficient import to cloud the minds of the eight employees as to the reason for their signing cards." It points to Buell's testimony that he told the employees at the meeting that there are two alternative approaches the Union may use in trying to get recognition from a company; i.e , "going through the National Labor Relations Board and an election," or "direct recognition in which if enough people are in favor of it, if the employer does not recognize the union, we then 31 I note, in this connection, that Burkley testified that he had no reason to doubt that his employees signed the authorization cards, in evidence, although he did not know their signatures 32 Fitch quit her employment on March 11 33 Vinylex Corporation and Everwarm Corporation, 160 NLRB 1883, Gordon Manufacturing Company, 158 NLRB 1303. The Colson Corporation, 148 NLRB 827, 840, and cases cited therein 34 Respondent asserts in its brief that, "when asked on cross- examination if the organizer had promised the eight card signers an election [Poole's] response [was] `Yes, if I recall "' However, the testimony is as follows, and speaks for itself Q (By Mr. Rasmussen) I will rephrase my question, Mrs Poole. Did Mr. Buell promise you an election of the employees to see if the Union would get in or not ^ Mn UHI.tc Objection No foundation laid for that TRIAL EXAMINER You may answer the question I will overrule the objection A I don't think he promised this He just told us it could take a strike vote to force recognition." In Respondent's view, the coercion consisted in not fairly representing to the employees that, if enough people signed cards to create a majority, there would be no election and the Union would demand recognition and the privilege of bargaining without an election. However, I perceive no warrant for finding on the basis of Buell's testimony that he did not fairly represent that, as one alternative, recognition and bargaining could occur without having an election, if enough employees favored the Union. Leaving aside the question of whether Buell's language stated this alternative directly, I find that the implication thereof was clear and that his remarks were free of coercion. In view of all the foregoing, including the fact that the authorization cards were unambiguous in their authorization of union representation, and the further fact that there is no testimony by any employees that he was told that the election was the only purpose of the card, I conclude, and find, that the purpose of the cards was not misrepresented to the signatories and that they, in turn, did not misunderstand the effect of the cards.35 It therefore follows, and I conclude further, and find, that, as of March 9 and at all times thereafter which are material herein, the Union validly represented a majority of employees in the appropriate unit.36 2. Contentions and conclusions as to the refusal-to- bargain issue The General Counsel contends that the Union represented a majority as of March 9 and thereafter and that Respondent's expressed doubt as to the Union's majority in its March 15 letter from Burkley to Buell was not based on a good-faith doubt in view of (1) its conduct seeking to undermine the Union's majority within 2 days of the Union's meeting of March 8 and (2) its admission thereof subsequently by indicating on July 5 that it stood ready to bargain. As to the former, the General Counsel points to Burkley's meeting with the four women on March 10 and there considering, and taking action to remedy, grievances voiced by them, and to the granting and putting into effect on March 11 of the wage increase which was made retroactive to January 1. And as to the latter, the General Counsel relies on the July 5 letter sent to the Union by Midwest, in behalf of Respondent, in which it stated that it stood ready to bargain, and also on the related testimony of Burkley, on cross-examination, that he had been informed by his counsel, meaning Rasmussen, at the time of the letter that "eventually we are going to have to bargain with the Union because of this he done Q. (By Mr Rasmussen) That it could be done 9 A Yes, if I recall as See N L R B v Cumberland Shoe Corporation, 351 F 2d 917, enfg. 144 NLRB 1268, Hopcon, Inc , 161 NLRB 31 36 While the record discloses that Fitch quit her employment on March 11, it is apparent that, without counting her card, the Union still had 12 cards, sufficient to constitute a majority of the 21 employees in the unit . And insofar as the card of her son, Dennis Ray Petry, is concerned, the record discloses only that at the time of the hearing he was in the Armed Forces, and not, as Respondent urges in its brief, that May 31 was his last day at the plant In any event, mere turnover does not indicate that the Union's previously established majority has been impaired. On the contrary, the reasonable presumption is that throughout the changes of personnel in the unit, the Union maintained the same proportion of adherents. Schill Steel Products, Inc , 161 NLRB 939, National Plastic Products Company, 78 NLRB 699 BURKLEY ENVELOPE CO. unfair labor practice charge that has been filed against us. We cannot have an election anymore or anything like that." Respondent contends, in effect, that the Union never had a majority and that, in any event, it had a good- faith doubt of such majority, which good-faith doubt is not impaired either by what transpired in connection with the March 10 meeting between Burkley and the four women, or by the grant of the retroactive wage increase, as in neither instance was there a violation of the Act. And with respect to the statement in the letter of July 5 that "the employer's representative stands ready to bargain," Respondent contends, in substance, in its brief, that it means no more than "being prepared," i.e., Midwest had "advised [Burkley] that due relative costs and the total circumstance [sic], given a fair settlement agreement by the Board along with the Board's finding that the Union did represent a majority that the Employer would be required to bargain," but that it did not bargain thereafter because various settlement agreements arrived at with Board personnel failed to get "Board Director" approval, and further that "at no time has Employer or Employer Counsel ever admitted an unfair labor practice." On the issue of whether the Union had majority status on March 9 and at all times thereafter, I have heretofore so found, rejecting Respondent's contentions to the contrary. There thus remains for disposition Respondent's contention that its refusal to recognize and bargain with the Union was based on a good-faith doubt of majority. It is clear that where, as here, the General Counsel has alleged a violation of Section 8(a)(5) on the basis of a card showing, he has the burden of proving not only that valid authorizations have been executed by a majority but also that the employer has refused recognition in bad faith.37 And, with respect to the latter, a basis must exist in the record for imputing to the employer a rejection of the collective-bargaining principle or an effort to undermine the union by gaining time in which to dissipate the union's claimed majority. Furthermore, in determining whether the employer's action was taken to achieve either of said invalid purposes, the Board considers all the surrounding circumstances, as well as the direct evidence of motivation. Absent such direct evidence, where extensive violations of the Act accompany the refusal to grant recognition, they evidence the employer's unlawful motive and an inference of bad faith is justified.38 Here, as I have heretofore found, Respondent took precipitate action at the time the Union's organizational activity had reached its culmination and both granted a retroactive across-the- board wage increase and promised four female employees, at a meeting convened by it, to remedy, and did soon thereafter remedy, their grievances concerning conditions in their restroom and in the lunchroom by making the improvements sought, all with the intent to forestall the union activity of the employees in violation of Section 8(a)(1) of the Act. This conduct was, in all the circumstances, flagrant and sufficiently extensive so as to evidence Respondent's unlawful motive to undermine the Union rather than a good-faith desire to determine the 37 See N.L R B v. Boot-Ster Manufacturing Company, 361 F 2d 325, 326 (C A 6), Strydel Incorporated, 156 NLRB 1185, and John P Serpa, Inc , 155 NLRB 99 38 Hammond & Irving, Incorporated, 154 NLRB 1071 ae International Ladies' Garment Workers' Union, AFL-CIO (Bernhard-Altmann Texas Corp) v N L R.B., 366 U S. 731 40 There is nothing in the July 5 letter to indicate that, in Respondent's view, majority status was an open question between the parties at the time In these circumstances , I reject 51 majority status of the Union in a Board election, and so as to warrant the conclusion, which I reach here, that Respondent refused on March 15 to recognize the Union in bad faith. Moreover, the record contains additional evidence supportive of such bad-faith refusal. Thus, Midwest, in behalf of Respondent, by letter of July 5 to the Union, asserted, as already found, that it stood ready to bargain with the Union. Indeed, it underscored its readiness at that very time by offering therein to make available "at the office of the company negotiator" information requested for bargaining purposes by the Union. It is reasonable to assume that Respondent, assisted as it was by Midwest, an organization specializing in representing employers in dealings with unions, was aware (1) that a union must, for purposes of collective bargaining under the Act, be the majority representative of its employees in an appropriate unit, and (2) conversely, that to bargain collectively in an appropriate unit with a minority union contravenes the Act,34 and further that in standing ready to bargain, Respondent sought to act lawfully. It follows, therefore, that Respondent or Midwest, in its behalf, made manifest in the July 5 letter that it had reason to believe that the Union was the majority representative,40 and thereby impugned its prior questioning of the Union's majority on March 15. Further, independently of whether Respondent refused to bargain in violation of the Act on March 15, I find that Respondent unlawfully refused to bargain on and after July 18, when it reversed, by letter, its earlier position of July 5 of standing ready to bargain, and refused to recognize or bargain with the Union "until the stipulation is effected and further action is legally directed by the Board. "a' The record reveals, in this connection, that this development occurred in a context of tentative settlement agreements which failed to get the requisite approval. Thus, on or about June 24, the attorneys for the parties, excluding the Charging Party, met and discussed settlement of this case. While those discussions resulted in a tentative agreement for an informal settlement, the requisite approval of the Regional Director for Region 17 was never given. Subsequently, on or about June 29, the same individuals met again and had further settlement discussions which resulted in a tentative agreement to enter into a formal settlement providing for a Board order and court decree. It appears that at this point, Midwest, in behalf of Respondent, sent the letter of July 5 stating that it stood ready to bargain. It appears further that the requisite approval of the General Counsel was denied and the formal settlement stipulation was never submitted to the Board for its approval. On July 18, counsel for Midwest, on behalf of Respondent, dispatched a letter to the Union in which it asserted, in part, that: We understood there was a meeting of the minds on June 29, 1966, when the NLRB sent two field attorneys here to negotiate a settlement with us, but though they represented that we had reached an approved agreement, we have not received an Respondent's apparent contention , in its brief, that Midwest's representation that it stood ready to bargain in Respondent's behalf was tied in with, or conditioned upon, a Board finding that the Union did represent a majority. No such finding by the Board had then been made, nor was such a finding then under consideration, in any Board proceeding "' When Burkley's attention was directed to the contents of the letter,dunng cross-examination , he commented , "it looks to me like he [Rasmussen ] changed his mind I don 't know " 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approved stipulation agreement as promised. We do not entertain to advise our client to recognize you or bargain with you until the stipulation is effected and further action is legally directed by the National Labor Board. As already noted, this was the last communication between the parties and no bargaining has ever taken place. Respondent has thus conditioned any bargaining with the Union on the prior approval of the stipulation for formal settlement and the entry of a Board order. It is patent that Respondent has no vested interest in a tentative settlement of a Board proceeding which fails to get the approval necessary to make it effective. To hold otherwise would be to oust the Regional Director, the General Counsel, and the Board, as the case may be, of their duties and responsibilities in the administration of the Act.42 Therefore, by adamantly maintaining that it will not bargain until the proposed formal settlement of June 29 is approved and the Board has ordered it to do so, Respondent has acted inconsistently with, and in derogation of, its obligation under the Act to bargain collectively with the majority representative of its employees in an appropriate unit.43 I conclude and find, therefore, that on and after July 18, 1966, Respondent has refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent at its Omaha, Nebraska, facility excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. 5. The Union at all times material has been and is the exclusive representative of the employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 6. By refusing on and since March 15, 1966, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid bargaining unit, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent cease and desist therefrom and from interfering in any like or related manner with the efforts of the Union to bargain collectively with Respondent. I shall also recommend, affirmatively, that Respondent bargain with the Union, upon request, and post appropriate notices. The General Counsel contends that "it appears that Respondent completely abandoned its duties" in regard to bargaining collectively with the Union to Midwest and that it refused to bargain "on advice and instruction" from Midwest. In these circumstances, the General Counsel urges, an order against Midwest and Respondent is clearly appropriate. In this connection, Respondent's president, Burkley, testified, "I didn't know anything about collective bargaining or bargaining collectively. We retained them, as I said, pure and simple, to represent us to counsel and guide us ... in the matter of negotiations." At another point, when asked why Midwest was ready to bargain with the Union on July 5 but refused to bargain on July 18, Burkley replied, as already found, "It looks to me like he [Rasmussen] changed his mind. I don't know." In view of the foregoing and on the basis of the entire record, I am persuaded, and find, that Midwest, from the time of its retention by Respondent, dictated the conduct of Respondent in refusing to bargain herein. Although the Board's usual order includes a general reference to agents of a respondent, I am persuaded, under all the circumstances herein, that the purposes and policies of the Act will be better effectuated by specifically referring in the order herein to Midwest Employers Council, Inc., as the agent of Respondent, and shall so recommend. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, I recommend that Respondent, its officers, agents, including Midwest Employers Council, Inc., successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act by announcing or granting them economic benefits or by changing the terms and conditions of their employment; provided, however, that nothing herein shall be construed as requiring Respondent to rescind, abandon, or vary any economic benefit or any term or condition of employment heretofore established. (b) Refusing to bargain collectively in good faith concerning rates of pay, wages, hours of employment, or other conditions of employment with Printing Specialties and Paper Products Union Local No. 412, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: 42 See Section 102.51 , Board Rules and Regulations , Series 8, as amended, revised January 1, 1965, and Sections 101.7, 101 8, and 101.9 of the companion Statements of Procedure See also N L R B. v. Lasko Metal Products, Inc., 363 F.2d 529 (C.A 6), enfg. 148 NLRB 976, N.L R.B v Lake Superior Lumber Corporation, 167 F.2d 147,150 (C A 6); Campbell Soup Company, 152 NLRB 1645,1648. 43 See Old King Cole, Inc v N.L.R B , 260 F.2d 530, 532 (C A. 6), enfg 119 NLRB 837, holding that, "good faith is not available as a defense to a charge of refusal to bargain where the refusal is based upon an erroneous view of the law"; see also H & W Construction Company, Inc., 161 NLRB 852. BURKLEY ENVELOPE CO. All production and maintenance employees at its Omaha, Nebraska, facility excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to join or assist a union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. 3. Post at its facility in Omaha, Nebraska, copies of the attached notice marked "Appendix."44 Copies of said notice, to be furnished by the Regional Director for Region 17, after being duly signed by an authorized representative of Respondent, shall be posted by it 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. Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.45 " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 'S In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor 53 Relations Act, as amended , we hereby notify our employees that: WE WILL NOT interfere with , restrain , or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by granting them economic benefits , or by changing the terms or conditions of their employment ; provided , however, that nothing herein requires us to rescind , abandon, or vary any term or condition of employment heretofore established. WE WILL NOT refuse to bargain collectively in good faith with Printing Specialties and Paper Products Union Local No. 412, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below. WE WILL, upon request , bargain with Printing Specialties and Paper Products Union Local No. 412, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment , and, if an understanding is reached , embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of our Omaha, Nebraska , facility excluding office clerical employees, guards, professional employees , and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to join or assist a union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for mutual aid or protection. BURKLEY ENVELOPE COMPANY (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri, Telephone FR 4-7000. 299-352 0-70-5