Peter Paul, Inc.

PETER PAUL, INC Peter Paul, Inc. and International Longshoremen's and Warehousemen's Union, Local No. 6 and Industrial Candy Workers Union, Intervenor. Case 20-CA-5000 August 27, 1970 DECISION AND ORDER On May 27, 1969, Trial Examiner Louis S. Penfield issued his decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the Respondent and the Intervenor filed exceptions to the Decision and supporting briefs, and the General Counsel filed an answering brief. 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Peter Paul, Inc., Salinas, California, its officers, agents, successors, and assigns, shall take the action as set forth in the Trial Examiner's Recom- mended Order. ' The Respondent has requested oral argument This request is hereby denied, as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Trial Examiner. This proceeding, with all parties represented, was heard before me in Monte- rey, California, on November 25, 26, and 27, 1968, upon a complaint of the General Counsel and answer of Peter 281 Paul Inc., herein called Respondent.' The issues litigated were whether Respondent violated Section 8(a)(1) and (2) of the National Labor Relations Act, as amended, herein called the Act A motion to intervene made by Industrial Candy Workers Union, herein called ICW, was granted at the opening of the hearing. Following the close of the hearing, Counsel for Respond- ent filed a motion to correct the transcript in certain respects. No opposition to such motion was received from representatives of any of the other parties. I have considered the specific corrections urged by counsel for Respondent, and find that they are in accord with my own recollection. Accordingly the motion is granted, and each of the specific corrections noted in counsel's motion to correct the tran- script is hereby directed It may be further noted that counsel for Respondent has asserted the transcript to be garbled in certain respects Counsel does not urge specific changes to clarify it however. I have considered those garbled portions which counsel notes, and agree that they show evidence of distortion. I am of the opinion, however, that in no instance are there distortions of such magnitude that specific correction is needed in order to resolve the issues before us. Accordingly, while I regret the inelegant, and sometimes unintelligible, statements attributed to vari- ous persons including the Trial Examiner, I am of the opinion that it will serve no significantly useful purpose to undertake further corrections. Upon the entire record, including consideration of briefs filed by the General Counsel, Respondent, and the Interve- nor, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is a corporation with a place of business located at Salinas, California, where it is engaged in the manufacture and sale of candy. Respondent during the past year in the course and conduct of such business sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of California. I find the Respondent to be engaged in a business affecting commerce within the meaning of the Act, and assertion of jurisdiction in this proceeding to be warranted. II. THE LABOR ORGANIZATIONS INVOLVED The Charging Party, International Longshoremen's and Warehousemen's Union, Local No. 6, herein called ILWU, and the Intervenor, Industrial Candy Workers Union, herein called ICW, are each labor organizations within the meaning of Section 2(5) of the Act ' The complaint issued on September 17, 1968 The complaint is based on an original charge filed on May 16, 1968, and an amended charge filed on June 20, 1968 Copies of the complaint, the charge, and the amended charge have been duly served on Respondent 185 NLRB No. 64 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IIi. THE ALLEGED UNFAIR LABOR PRACTICES The central issue concerns the allegation that Respondent has violated Section 8(a)(1) and (2) of the Act by continuing to recognize and bargain with ICW as the exclusive bargain- ing representative of its employees at a time when ILWU had raised a real question concerning the representation of such employees. Subsidiary issues concern alleged threats, interrogations, promises of benefit, and the promulgation of an unlawful no-solicitation rule claimed to be violative of Section 8(a)(1) of the Act Respondent denies that a real question of representation existed, and insists that it was lawfully entitled to continue to recognize and bargain with ICW. Respondent also denies that it engaged in the alleged unlawful conduct claimed by the General Counsel to be violative of Section 8(a)(1). A. The Alleged Unlawful Bargaining With ICW The facts concerning the bargaining history and the circumstances surrounding Respondent's continued recogni- tion and bargaining with ICW are substantially undisputed and may be summarized as follows: (1) Respondent first recognized and bargained with a predecessor of ICW in 1952. The predecessor of ICW was first certified as the statutory representative of Respond- ent's employees in 1952. The predecessor was recertified in 1960, and in 1962 the certification was amended to change the original name to its present designation as Industrial Candy Workers Union. (2) Respondent has been party to an unbroken series of collective-bargaining agreements between ICW, or its predecessor, since 1952. Originally the certification and the collective-bargaining agreements covered employees at a plant then located in Oakland, California. In 1966 the plant was moved from Oakland to Salinas. This move occurred while a collective-bargaining agreement was still in effect and resulted in no interruption in the bargaining situation. The most recent collective-bargaining agreement with ICW prior to the filing of the charges herein covered a period from July 1, 1966, to June 30, 1968. It purported to cover a bargaining unit of "all production and mainte- nance employees including cafeteria employees, warehouse employees and on-call employees, excluding office clerical employees, nurses, professional employees and guards and supervisors as defined by the Act." (3) ICW served written notice on Respondent that it desired to negotiate a new contract on March 19, 1968, and four negotiation meetings had been held by Respondent and ICW prior to May 1, 1968. (4) On April 29, 1968, ILWU filed a petition purporting to cover Respondent's employees in a proceeding numbered case 20-RC-8126. A copy of this petition and a letter signed by the Regional Director for Region 20 was served on Respondent on May 1, 1968. The petition set forth the name of the employer, the location of the plant, the nature of the business, described the bargaining unit as "all employees covered by current agreement," asserted the unit to be comprised of 141 employees, asserted that the petition was supported by 30 percent or more employees in the unit, and represented ICW to be the current represent- ative of these employees with a contract which was to expire on June 30, 1968. The petitioner was named as "Warehouse, Processing and Allied Workers, Local 6 ILWU." The petition was signed by an International repre- sentative of ILWU. The accompanying letter from the Regional Director requested that Respondent furnish to the Regional Office jurisdictional data, and in order to establish if the petition were supported by 30 percent of the employees that Respondent "submit as soon as possible a list of the names of all employees within the described unit with their respective job classifications, prepared from your most recent payroll." Section 7(a) of the petition, dealing with the petitioner's request for recognition and the employer's response, was left blank. It has not been shown that at any time either prior to the filing of the petition, or thereafter, ILWU ever requested recognition of Respondent as the statutory representative of its employ- ees. Nor has it been shown that at any time relevant to this proceeding have a majority of Respondent's employ- ees in the contract unit purported to designate ILWU as their representative. (5) ILWU Representative Fagerhaugh testified that he personally delivered the petition to the Regional Office on April 29, and at the same time delivered 45 authorization cards purporting to have been signed by employees of Respondent A blank card identified as similar to those submitted sets forth that the signer was petitioning the Board to conduct a secret ballot election, and that he was designating ILWU as his bargaining agent. Fagerhaugh further testified that approximately a week later he delivered five additional cards to the Regional Office. Respondent and ICW demanded production of the signed cards so the sufficiency of the showing could be litigated. The General Counsel declined to produce the cards, stating that interest showing was a nonlitigable issue, and that the Regional Director's allegation in the complaint that ILWU had made a "showing of interest sufficient to warrant processing the petition" was a sufficient administrative determination as to any sufficiency if showing issue. The Trial Examiner did not direct production of the cards. The General Counsel, however, did offer to submit the cards to the Trial Examiner for examination in camera. The Trial Examiner declined to make an in camera inspection. (6) On May 3, 1968, counsel for Respondent sent a letter to the Regional Office acknowledging receipt of copies of the petition, and a covering letter furnishing information concerning Respondent's bargaining history with ICW. Respondent represented that a majority of the present employees were members of ICW, and requested information as to the sufficiency of the showing made by the ILWU in support of its petition. (7) On May 8, 1968, the Board's field examiner replied to counsel's letter stating, among other things, that Respond- ent had been asked to furnish a payroll list, and representing that "until I receive this list, it is unfortunately impossible to check whether the petitioner has a sufficient showing of interest. However, from the information I now have at hand, it does appear that the showing of interest is sufficient." PETER PAUL, INC (8) At no time prior to the hearing in the instant case did Respondent submit a payroll as requested by the Region- al Director in the representation case. (9) The collective-bargaining agreement with ICW con- tained a checkoff authorization provision reading as follows: The Company agrees to deduct from the earnings of the employees the monthly membership dues, and upon written authorization irrevocable for the period of one year or the anniversary date of this agreement, whichever is sooner, and remit the same to the financial secretary of the Union. It has been established that at the time the petition in Case 20-RC-8126 was filed Respondent had on its files 121 unrevoked checkoff authorization forms signed by employees then in the bargaining unit and that such authori- zations had come from over 80 percent of the unit employees. These authorization forms purported to authorize Respond- ent to deduct initiation fee and monthly ICW dues and to be irrevocable for one year or the date of the expiration of the ICW contract, whichever date came sooner. (10) On May 3, 1968, ICW sent Respondent a letter enclosing 134 new checkoff authorization forms regarding present employees of Respondent. It has been further estab- lished that these newly signed authorizations came from nearly 85 percent of the unit employees. In the same letter ICW requested that negotiations for a new collective- bargaining agreement be expedited and completed as soon as possible. (11) On or about May 5, Respondent met with ICW representatives, announced that it felt that ICW still repre- sented a majority of its employees, that it would continue to negotiate with ICW, and that it "would do everything [it] could legally to help [it] keep any other union out." It was further announced that ICW could continue to use bulletin boards and have meetings on the premises as in the past. (12) Throughout the month of May, Respondent contin- ued to meet and negotiate with ICW, and by May 31 Respondent and ICW had reached agreement as to the terms of a new contract On May 31, members of ICW meeting in Respondent's cafeteria voted to ratify the agree- ment, and thereafter Respondent and ICW executed a written memorandum agreement to be effective for 3 years commencing July 1, 1968. A formal integrated written document was executed on June 28, 1968. (13) On May 16, 1968, ILWU filed the charge upon which the instant proceeding is based, claiming that Respondent was continuing to recognize and negotiate with ICW after a question concerning representation of employees had been raised by the filing of the petition in Case 20- RC-8126 and that Respondent was therefore engaging in conduct violative of Section 8(a)(2) of the Act. (14) Although hearing dates were discussed, no notice of hearing issued in Case 20-RC-8126, no hearing was held, and no formal findings or determination of representa- tive was ever made by the Board or Regional Director in the representation case. On May 20, 1968, Respondent was advised by the Regional Office that because of the filing of the charge in the instant proceeding "further processing of the petition will await disposition of the unfair labor practice charge " 283 B. The Conduct of Respondent Alleged to be Violative of Section 8(a)(1) The General Counsel contends that during the month of May following the filing of the ILWU petition Respondent on various occasions engaged in acts and conduct which interfered with employee rights. This unlawful conduct is alleged to include threats, promises of benefit, interroga- tions, and the promulgation and enforcement of an unlawful rule prohibiting union activities on company premises. It was stipulated that Robert S. Gray is the plant manager, Thomas J. Tatoian, assistant to the plant manager, and that Jane H. Cedarwall, Stanley Korzuch, Donald E. Gen- dreau, and Luey Frary are plant supervisors. It is agreed that at all times material to this proceeding each was a supervisor within the meaning of the Act Employee Morris O'Bnant testified that on an occasion in early May when he and some other employees were seated at a table in the plant lunchroom, Supervisor Jane Cedarwall directed a conversation to union activities then going on at the plant. According to O'Briant, Cedarwall stated "She didn't exactly understand what the people wanted or what they were trying to do in the union activities that were going on." Cedarwall followed this by saying that "Should another union get in Peter Paul, that the company should-not state the company would, but stated that they should close the plant in the Salinas area, or possibly sell it out to the Green Giant, and possibly pull all the higher seniority personnel back into some of the other plants, i e. Dallas area and other areas, possibly move our operation into Canada." O'Briant then commented that should the operation be moved into Canada "who would work for the company up there, the draft dodgers that were hiding in Canada?" According to O'Briant, this brought the discussion to a close. Cedarwall specifically denies making the statements which O'Briant attributes to her, although she acknowledges that on occasion she sat at the same table with O'Briant during the lunch hour. None of the employees alleged to have been present at the time were identified or called upon to testify. It is not claimed that Cedarwall made statements of a similar nature to any other employees at any other time. As indicated above on May 31, Respondent and ICW reached an accord on the terms of a new collective-bargain- ing agreement On that same day a meeting was scheduled on company premises after working hours, during the course of which ICW members voted to ratify the agreement Prior to this meeting, according to employee O'Briant, Supervisor Korzuch, who had formerly been O'Briant's immediate supervisor but on this date was not, engaged O'Bnant in a converstaion. During the course of this conver- sation, Korzuch questioned O'Briant as to his feelings about the agreement just negotiated. O'Briant states that following this Korzuch commented on O'Briant's ability to work without close supervision, and indicated that new jobs were due for a posting in the near future, and that O'Briant might be interested in bidding for them. After this, O'Briant states that Korzuch brought up the contract ratification meeting and said "Use your head, Morrie. Get yourself out of the debit section, get on the right side of the ledger. Give this thing your 100 percent support, and 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stop all this nonsense that is going around." Following this, O'Bnant attended the ratification meeting, but it is not shown to what extent, if any, he participated therein. Korzuch did not attend the ratification meeting. According to O'Bnant, following the conclusion of this meeting he overheard Korzuch talking to Supervisor Gendreau and one or two unidentified employees. O'Briant states he heard Korzuch say "I guess 0. B shaped up . . " and "used his head as well as diplomacy in bowing down . giving 100 percent push on the ratification of the contract." Kor- zuch denies having had any converstaions with O'Briant either before or after the ratification meeting in the course of which he made the remarks which O'Briant attributes to him. No one else was called to testify on the subject of the conversation which O'Bnant claims to have overheard after the meeting. Employee H. T. Blain testified about a conversation he had with Supervisor Gendreau which occurred in mid- July. The General Counsel alleges that during the course of this conversation Gendreau not only admitted having engaged in unlawfully enforcing a rule prohibiting union activity on company premises, but voiced a threat suggesting that employees might well lose retirement or other benefits because of ILWU support or other protected concerted activities Blain, a mechanic, had been working with another mechanic named Alan Larkin. Following Larkin's vacation in July, Blain inquired of Gendreau when Larkin was expected to return to work. According to Blain, Gendreau appeared disturbed at the time of this inquiry and told Blain that "there was a girl from the NLRB in to see him on some charges Alan had filed against him." Blain states that Gendreau then volunteered that these so-called charges arose because one of the girls had complained to him that Larkin had been talking to her about unions. In response to such complaint, Gendreau then called Larkin into his office and asked him if he had "been talking about different unions on company time." Larkin told Gen- dreau "no, he had not." This appears to comprise the entire incident. Neither Alan Larkin, the girl who com- plained, nor Gendreau himself testified. Following this recit- al of the "charges," which Larkin allegedly had made, according to Blain, Gendreau remarked that if he had known that charges would be made against him "he wouldn't have gone to bat for Larkin to get his retirement" The latter reference concerns an attempt which was indirectly made by Larkin to enlist Gendreau's aid in helping Larkin attain early retirement benefits. Carol Larkin, Alan Larkin's wife, testified that following the July vacation she had called Gendreau to inform him that her husband would not be returning to work for Respondent in the future for personal reasons. Mrs. Larkin states that she sought Gendreau's aid in getting some special consideration with respect to obtaining early retirement benefits for her hus- band, and that Gendreau had indicated that he would do what he could. It is neither shown, nor claimed, that Larkin was deprived of any benefits to which he might have been entitled for reasons relating to union activities or for any other reason. Three subdivisions of paragraph 9 of the complaint relate to the alleged unlawful promulgation or enforcement by Respondent of a rule prohibiting union activities on company premises at any time Respondent has had no written or published rule regard- ing restrictions on union activity whether on company time or premises. Plant Manager Gray testified, however, that for many years his supervisors had been instructed that it was Respondent's policy not only to refrain from interrogating employees concerning union organization and to maintain strict neutrality in union matters, but to enforce a rule which would forbid union activities in work areas during work time, but permit them in nonwork time in nonwork areas. It was developed that there were numerous nonwork areas at the plant such as the parking lot, the cafeteria, the employees' lounge, the locker rooms, and the restroom, and it is claimed that in such areas employees were free to discuss union matters. Gray specifically denies this to be a newly promulgated or newly invoked policy, or in any way for it to be related to the advent of organiza- tional activities by ILWU. Gray states that following the filing of the ILWU petition he had considered the desirability of embodying this longstanding policy in writing and posting it on the employee bulletin board. Gray even went so far as to draft a proposed notice to employees Such draft recited in substance that working time was for work, and that while employees might engage in activities for and against a union on company premises, such activity was not permitted in work areas during worktime Gray decided, however, not to post such notice. He states that he refrained from doing so because no evidence had come to his attention that with the ILWU campaign the employees were actually engaging in union activity during working hours, and he felt that the posting of such a rule might have an upsetting effect. Thus, it appears that the employees themselves were not directly apprised in connection with this particular organizational compaign of what Respondent contends was its longstanding policy The General Counsel further asserts that Respondent, during the course of the ILWU campaign, invoked and enforced a rule contrary to the one which it claims represent- ed its actual policy Carol Larkin, a member of the ICW negotiation committee, testified that at a negotiation meeting taking place early in May, Plant Manager Gray told the committee that there would be "no union talk ... near as I remember on company premises " Gray denies that on that occasion or at any other time had he ever told members of the ICW negotiation committee, or anyone else, that union activities would be restricted except during working time. He is corroborated in this denial by Assistant Plant Manager Tatoian. Employee O'Briant testified that on May 22 he attended a meeting of Respondent's employees conducted by ILWU. The following morning, O'Briant states, Supervisor Frary approached him and told him that he understood that O'Briant had attended the ILWU meeting and had exhibited considerable interest in ILWU. O'Briant made no comment, after which he claims Frary warned him that he was not to talk to other employees about union activity whether it pertained to ICW or "to any other damn union." O'Briant makes it clear, however, that Frary's admonition applied to activity on worktime in working areas. O'Briant acknowledges that Frary told him to restrict "any of my conversation as to union activities PETER PAUL, INC to the break areas, such as authorized smoke areas, i.e , such as company cafeteria or the lobby, the employees' lobby or in the company cafeteria " Frary was not called to testify. The alleged unlawful enforcement of the rule by Supervisor Gendreau pertains to the admission he made to Blain during the course of which Blain states Gendreau told him that acting on the complaint of an employee Gendreau had called in Alan Larkin and asked him if he had been talking to the employee on company time As set forth above, Larkin denied that he had done so and the matter was dropped. No other incidents pertaining to the alleged invocation or enforcement of a company rule restricting union activity on company premises were developed. C. Discussion of the Issues and Conclusions The central issue in this proceeding is the alleged unlawful assistance which Respondent extended to ICW by continuing to bargain with it after learning that ILWU had filed a petition. The independent 8(a)(1) allegations represent a subsidiary issue which is premised on the claim that Respondent, after learning of the petition, not only unlawful- ly favored ICW by continuing to bargain with it, but concurrently embarked upon a series of independent unlaw- ful acts designed to denigrate ILWU and perpetuate the incumbency of ICW I shall first treat with the latter issue, which is primarily factual, and thereafter consider the legal questions raised by the undisputed facts concerning Respondent's continued bargaining with ICW.z I The alleged 8(a)(1) violations Contrary to the contention of the General Counsel, I am not convinced that it has been established by a prepon- derance of evidence that Respondent concurrently with its decision to continue bargaining with ICW also embarked ' Respondent argues that I should not even consider the 8(a)(1) allega- tions of the complaint because it cannot be shown that they are supported by the allegations of any charge pending, and thus are barred by Sec 10(b) of the Act Respondent points out that neither the original nor the amended charge recite independent 8(a)(1) allegations Respondent contends that the 8(a)(1) allegations of par 9 of the complaint do not concern matters sufficiently closely related to the 8(a)(2) aspects of the charge so that they may be construed to support both I disagree it is well established that a charge is not a pleading, and that a complaint may allege violations of sections of the Act not mentioned in the charge, provided they bear some relationship to the general controversy In the instant case the general controversy concerns alleged unlawful assist- ance of one sort or another given by Respondent to the incumbent ICW This alleged to be evidenced both by continued bargaining and by various independent acts, an effect of which is to give additional assistance to ICW Contrary to Respondent I regard these independent 8(a)(1) allegations as fully meeting the so-called "closely related" test which Respondent claims must be present to support a complaint contain- ing allegations not set forth in a charge I regard the underlying rationale of the cases which Respondent cites as supporting the conclusion that the 8(a)(1) allegations in the complaint here are "closely related" to the 8(a)(2) allegations in the charge Accordingly, I find that Sec 10(b) does not proscribe consideration of the allegations in par 9 of the complaint See NLRB v Dinion Coil Co, 201 F 2d 484 (C A 2), N L. R B v Pecheur Lozenge Co, 209 F 2d 393 (C A 2), Casino Operations, Inc, 169 NLRB 328, Exber, Inc d/b/a El Cortez Hotel v NLRB, 390F2d127(CA 9) 285 upon a course of conduct designed to lend further, and independent, assistance to ICW The allegations that Respondent promulgated or invoked restrictive rules as to discussion of union matters on compa- ny premises will not withstand scrutiny. While Respondent failed directly to apprise its employees as to the precise limits of its rules restricting discussion of union matters, the General Counsel has adduced insufficient evidence to show that at any time Respondent either had, or had undertaken to enforce, a rule which did more than restrict discussions of union matters to working time. The incidents which the General Counsel urges as leading to a contrary conclusion are either isolated or inconsequential. Thus we find employee Larkin recalling that at an ICW negotiation meeting Plant Manager Gray had said there should be no union talk, and she thinks she remembers that this referred to company premises. Significantly, however, nei- ther Larkin, nor any other employee, testified that at any time he had been admonished for engaging in union activities on company premises as distinguished from working time. The General Counsel's witnesses Blain and O'Briant both testified to hearing statements of Gendreau and Frary, respectively, which did no more than suggest that restriction of union activities was limited to work areas and worktime. Under the circumstances I am convinced that Larkin was mistaken, and that, consistent with his own corroborated assertion, Gray only told the group at the negotiation meeting that there should be no union talk in work areas on worktime Accordingly, I find that it has not been established that Respondent promulgated any rule forbid- ding discussion of union matters on company property, or that its supervisors have been shown to have engaged in conduct designed to forbid employees to engage in union activity on company premises. Therefore the allegations of paragraph 9(b), (c), and (f) have not been sustained. Apparently the General Counsel relied on Blain's testimo- ny regarding his conversation with Gendreau to establish the interrogation allegation of paragraph 9(e) of the com- plaint. While it is true that this might be viewed as an admission by Gendreau that he had questioned Alan Larkin about his union activities, I do not see such interrogation as arising in a context that can be deemed unlawful. Blain states that Gendreau told him that he had questioned Larkin following the complaint of an employee that Larkin had talked to her about union matters on company time. Restriction of union talk on company time is, of course, lawful, and Gendreau did no more than inquire if Larkin had in fact engaged in such conduct. When apprised by Larkin that he had not, the matter was dropped Under the circumstances I see no unlawful interrogation as having taken place Even if we credit O'Briant's testimony as to Cedarwall's statements in the lunchroom, it conveys no more than a dubious threat. O'Briant insists that Cedarwall said that the plant should, not would, move if ILWU came in. This can be construed as a statement of opinion rather than a threat, and apparently O'Briant so construed it. However, not only does Cedarwall herself deny altogether the statements which O'Bnant attributes to her, but the General Counsel failed to call for corroborative purposes other witnesses who O'Briant said were present at the 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunch table when Cedarwall was speaking. I was not impressed with O'Briant as a witness He appeared overly impressed with his own self-importance and not unwilling to exaggerate to promote such an image. Accordingly, I credit Cedarwall's denial, and find that she did not threaten employees with removal of the plant should ILWU come in. Like Cedarwall, Supervisor Korzuch also emphatically denied having suggested to O'Briant that he might receive rewards if he would press for ratification of the contract at the ICW meeting. As heretofore indicated, I was not favorably impressed with O'Briant as a witness. Accordingly, I credit Korzuch's denial, and find that he did not make the statements which O'Briant attributes to him. In the absence of Frary's testimony I must assume that he did interrogate O'Briant about his attendance at the ILWU meeting This interrogation, however, stands out as an isolated incident. Moreover, as we have seen, when Frary subsequently warned O'Briant to refrain from union activities, he did not limit his admonition to ILWU activities alone, but referred to activities for either union, and by O'Briant's admission limited his warning to union activities in working areas on working time. Under the circumstances I deem the interrogation by Frary as an isolated incident of interference with employee rights and the subsequent warning as lawful, with neither sufficient to sustain a finding of violation of Section 8(a)(1) of the Act. Likewise I attach but scant significance to Blain's unde- nied testimony that Gendreau told him that he would not have gone to bat for Larkin regarding his retirement benefits had he known that Larkin had complained to a Board agent about Gendreau's interrogation. Gendreau was upset at the time, having just talked with the Board agent. The statement did not necessarily suggest that Blain too might face loss of retirement benefits should he engage in protected activities, nor does it appear that Blain con- strued it in this manner. Larkin himself did not testify, and this record is not entirely clear as to how his retirement problem was resolved. However, it has not been sufficiently developed that Blain, or anyone else, had reason to believe that union activities in any way affected the disposition of the matter. Under the circumstances I am not prepared to construe the remark by Gendreau to Blain as a threat violative of Section 8(a)(1) of the Act. In the light of the foregoing, I find that the General Counsel has not sustained the allegations of paragraph 9 of the complaint in sufficient measure to warrant the issuance of a remedial order. In certain instances I have not credited the witnesses called to support the allegations. To the extent that certain of the evidence stands undenied I regard the incidents as so isolated and insubstantial that they do not suffice to support the conclusion that Respond- ent concurrently with its continued bargaining also embarked upon an independent course of conduct designed to undermine the organizational activities of ILWU and furnish additional support to ICW. Accordingly I shall recommend that the allegations of paragraph 9 of the complaint be dismissed. 2. The bargaining with ICW Having found that Respondent has not engaged in inde- pendent violations of Section 8(a)(1) of the Act, the single remaining issue concerns the unlawful assistance, if any there be, which resulted when Respondent continued bar- gaining with ICW. This issue turns on the proper application of the Board's so-called Mid-West Piping doctrine.' Both Respondent and ICW strongly urge the doctrine to be inapplicable because it has not been established that a real question concerning representation existed when Respondent and ICW resumed their course of bargaining. We must first examine the rationale behind the Mid-West Piping doctrine itself, and then consider its applicability to the facts at hand The Mid- West Piping doctrine is well established, and has been followed by the Board in a variety of situations. Essentially it stands for the proposition that an employer, confronted with rival claims from two unions concerning the representation of its employees, interferes with basic employee rights when it undertakes to resolve the question concerning representation itself by voluntarily extending recognition to and bargaining with one of the two rival unions. The doctrine rests on the premise that to grant recognition and to bargain with a union as exclusive repre- sentative affects all employees within the unit. Bargaining of this nature may only lawfully take place with a representa- tive who is the free choice of a majority of the employees themselves. When an employer accords recognition to one of two rivals under circumstances where the choice of the employees has not been reliably established, it not only assists that union, but it acts in derogation of the rights of the employees to make their own free choice. Thus, while an employer may lawfully recognize a represent- ative in a one union situation if in fact that union represents a majority of its employees, when two unions claim represen- tation at the same time it has no way of knowing which one the employees actually wish to represent them.' The dilemma created by the rival claims may be resolved by use of the Board's Section 9 machinery. A basic purpose of Section 9 is to provide a means to insure that the employees themselves may freely choose their representative. The Mid- West Piping doctrine requires an employer to use the Section 9 machinery when truly confronted with rival claims. Should the employer fail to do so and choose one of the rivals itself, the remedy is to require abandonment of the choice, with further recognition of any representative to be withheld until the employees evidence their own choice in a Board election. Respondent would not necessarily quarrel with the forego- ing broad general statement of principles It urges, however, that the Board itself has noted that not all situations ' The doctrine takes its name from the lead case Mid-West Piping and Supply Co, Inc, 63 NLRB 1060 ' It may be noted that even in a one union situation, an employer acts at its peril, although not necessarily unlawfully, when it voluntarily extends recognition It is well established that for an employer to grant exclusive recognition to a union not in fact the majority representative of its employees is an unfair labor practice PETER PAUL, INC 287 where rival claims exist give rise to real questions concerning representation, which demand use of the Section 9 machin- ery. It insists that in the instant case circumstances show that no properly cognizable question concerning representa- tion had come into being when Respondent and ICW resumed their bargaining and thus Mid- West Piping is not applicable. Respondent's position suggests a further consideration of the meaning of the term "question concerning representa- tion," and its place in the statutory scheme. The statute undertakes to encourage the "practice and procedure of collective bargaining " To effectuate this end the statute directly confers rights on employees, not on employers or unions, and denotes as unfair labor practices various acts of employers and unions which abridge such rights One basic right of the employees is to "bargain collectively through representatives of their own choosing." When the employees have duly made their choice, the employer and the chosen representative have a mutual duty to bargain under terms defined by Section 8(d) of the Act. Section 9 makes the choice of the majority in an appropriate bargaining unit the exclusive representative of all employees in the unit, and sets up machinery for determining both the unit and selection of the representative. This machinery may be invoked whenever there is a "question concerning representation." In the broadest sense a question concerning representation may be said to arise, and possibly invoke use of Section 9 machinery, whenever a union or individual makes any sort of claim to represent a group of employees The Board recognized early in its history, however, that unlimited processing of casual or possibly specious claims could result in a waste of its resources and divert it from its basic objectives. Thus the Board early in its history held that it would only process representation claims of a union which appar- ently were supported by a substantial number of employees. This support would be most frequently evidenced by cards signed by employees in the bargaining unit purporting to authorize a particular union to represent them. The Board made it clear, however, that while it would require that cards or similar evidence be submitted, the purpose of such showing requirement was to guard its processes against being called upon when there was no reasonable likelihood that the employees seriously desired any repre- sentative. Thus the validity of the cards was never permitted to become a subject of litigation in the representation pro- ceeding It developed that where a Regional Director admin- istratively determined a representation petition to be sup- ported by 30 percent or more of the employees, it would be deemed a sufficient interest showing to warrant use of the election machinery, with the employee choice there- after certified by the agency Similarly the Board decreed that even a fully supported claim must be among employees who comprise an appropriate bargaining unit. The statute itself affords certain guidelines as to the type of units which may be appropriate, and the Board has elaborated on the subject in many unit determinations. Suffice it to say that the Board alone can determine the validity of employee groupings, and the Board will take no cognizance of a question concerning representation unless it arises in an appropriate unit. The Board likewise placed limitations on the timing of petitions before it would undertake determinations of the questions concerning representation they purported to raise. Thus the Board developed its so-called certification and contract-bar doctrines. These are both premised on the proposition that once employees have chosen a represent- ative, the effective collective bargaining which the statute envisages will only be possible if the chosen representative has reasonable time to bargain for a contract, or once having achieved a contract there is a reasonable period during which the contract terms may function. Thus to permit employees the opportunity to change representatives without limitation would frustrate the basic collective-bar- gaining goal of the Act. The certification and contract- bar doctrines hold, in effect, that following a certification or the execution of a contract no claim for representation by a rival will be considered or resolved by the Board until certain periods of time have elapsed. The doctrines and their applicability have their complexities, but no claim is made here that the ILWU petition is not timely, so it suffices merely to note their existence. The substantial interest requirement, the appropriate unit requirement, and the timing requirement are each set forth to illustrate that the existence of rival claims alone even as evidenced by the filing of a petition, do not necessarily suffice to invoke use of the Section 9 machinery to determine the choice. To put it another way, failure to meet any of these three requirements will not give rise to a real question of representation; i.e , one that the Board will resolve forthwith upon the filing of the petition. Only where we can find a so-called real question concerning representation will continued bargaining with an incumbent result in a Mid-West Piping violation. The presence or absence of such a question in the record thus becomes a central issue. Respondent insists that no real question is to be found here because (1) ILWU at no time made a claim or demand for recognition as the statutory representative of Respond- ent's employees, (2) the petition itself cannot be found supported by sufficient interest showing to meet Board requirements, (3) it has not been established that the unit alleged in the petition is appropriate; (4) Respondent not only had reasonable cause to believe that ICW represented a majority of its employees but Respondent proffered evi- dence which would support such a conclusion; (5) neither the Board nor the Regional Director acting for the Board has made a formal determination after hearing in the repre- sentation case that a real question concerning representation existed. It is asserted the law requires a formal finding of this nature before there can be a Mid- West Piping viola- tion. While conflicting claims by rival organizations may arise in a variety of ways either before, or in conjunction with, the representation petition, it is well established that where a petition is filed, the petitioner's failure to make an earlier demand for recognition will not preclude a finding that there is a real question concerning representation. In Advance Pattern, 80 NLRB 209, the Board found a question concerning representation even though there had been no demand made prior to the filing of the petition. This is tantamount to a holding that the filing of the petition 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in itself constitutes sufficient demand This is still the prevailing view of the Board. While it stands undisputed that ILWU made no prior recognition claim on Respondent I find, contrary to the contention of Respondent, that the filing of the petition in Case 20-RC-8126 suffices to support the existence of a question concerning representa- tion assuming other requirements have been met. Respondent's assertion that ILWU has not established a claim to represent the employees in an appropriate bargain- ing unit is without merit. ILWU in its petition describes the unit as "all employees covered by current agreement " This is clearly an attempt to seek representation of employees in the same unit represented by ICW. The contract unit is presumptively appropriate, and Respondent neither urges, nor does the record suggest, anything to point to another conclusion Respondent's argument appears to rest on noth- ing more substantial than an assertion that ILWU has not described the unit in the precise language that appears in the contract itself. I know of no requirement that petitions need be drafted with such technical nicety. The scope of the unit is adequately expressed in the petition in a manner which could not mislead either Respondent or ICW Accordingly, since the contract unit clearly appears appropriate, I so find, and reject Respondent' s assertion to the contrary. Respondent further urges that not only did it have reason- able cause to believe that ICW represented a majority, but that on the basis of evidence which Respondent proffered I should find that in fact ICW did represent a majority. The General Counsel acknowledges, and I have no hesitation in finding, that on the basis of the checkoff authorizations which were introduced in the record Respondent had reason- able cause to believe that ICW may have been the majority choice of its employees when it resumed bargaining At the hearing, however, and in its brief, Respondent urged that I receive the same checkoff authorizations as definitive proof of the majority designation of ICW at that time I refused to receive them for such purpose, and Respondent now urges that I reconsider my ruling and find the checkoff authorizations to be proof of actual majority status. Respondent's claim misconceives the nature of the litigation. We are not concerned with a majority issue, but with an assistance issue The gravamen of the charge here is that Respondent itself unlawfully determined the majority issue in the face of a representation claim by a rival union. If in fact there is a rival claim sufficient to establish a real question concerning representation the majority issue can only be resolved following the free choice of the employ- ees as expressed in an election The quantity or quality of other evidence available to Respondent becomes irrele- vant, since the existence of the rival claim shows its validity to be the very question at issue and not something that Respondent can determine on its own Accordingly, I reaf- firm my ruling, and reject Respondent's claim that the evidence proffered in fact establishes that ICW represented a majority. A more serious question centers on the claims of both Respondent and ICW that the General Counsel has not established that the interest showing of ILWU suffices to meet Board interest showing requirements, and that therefore no real question concerning representation which would foreclose lawful continued bargaining ever existed. It is insisted that the administrative determination asserted by the General Counsel does not suffice as a matter of law, and that evidence in this record shows that ILWU never did make a showing sufficient to meet Board require- ments Finally it is argued that even should the showing be deemed sufficient no Mid-West Piping violation can be found because an essential condition precedent has not been met. It is claimed that continued bargaining with the incumbent can only be found unlawful when it is established that the Board, following a hearing in the repre- sentation case, has formally found there to be a question concerning representation. Admittedly such a condition has not been fulfilled in the instant case. Let us consider the latter issue first, for if it represents the controlling law it is dispositive of the issue without further consideration of the sufficiency of the showing. Respondent and ICW urge the controlling law to be found in the rationale expressed by several different courts These court cases reversed contrary Board holdings and held there to be no Mid- West Piping violation absent an earlier formal finding by the Board in the representation case to the effect that a real question concerning representa- tion was raised by the rival union's claims N.L.R B v. Swift and Co., supra, is urged to express most clearly the rule of law alleged to be controlling. In Swift, as in the instant case, the employer had recognized and bar- gained with an incumbent certified union for many years. The employer and the incumbent were in the process of bargaining for a new contract to succeed one about to expire. A rival union filed a petition for an election. A notice of hearing was issued by the Regional Director. Pursuant thereto a hearing was completed. While the matter was still pending, but prior to any formal ruling, the employ- er and the incumbent union entered into a new agreement Thereafter the rival union filed charges of unlawful assist- ance to the incumbent. The Board found a Mid- West Piping violation holding "the timely filing of the petition supported by an administratively determined showing of interest raises a real question concerning representation." The court rev- ersed the Board, holding that under the circumstances no real question concerning representation existed. The court stressed the fact that no election was ever ordered or held, indicating that this signified at the most "the existence of a naked claim .. to majority representation." The court went on to state: Recognizing its tenuous position, the Board urges that we give weight to its disposition of the petition for election. Before proceeding to a hearing on the petition, the Board points out that it has a statutory duty to first find that there exists "reasonable cause to believe that a question of representation affecting com- ' NLRB v Swtft & Co, 294 F 2d 285 (CA 3), N L R B v Air Master Corp, 339 F 2d 553 (C A 3), NL R B v North Electric Co, 296 F 2d 137 (CA 6), St Louis Independent Packing Co v NLRB, 291 F 2d 703 (C A 7) Respondent does not claim that the Court of Appeals for the Ninth Circuit has ruled directly on the issue, but asserts expressions by it which, although possibly dicta, suggest that it too will follow the rationale of Swift and the other cases See Retail Clerks Local 770 v NL R B, 370 F 2d 205 (C A 9), and Flotill Products, 180F2d441 (CA 9) PETER PAUL, INC 289 merce exists." Its usual procedure in such cases is to check to see if the petitioning union has been designated by at least 30 percent of the employees. We are asked simply to assume that such occurred here, for there is no evidence in the record in this regard, and the Board is apparently satisfied with saying that such a showing "must have" occurred since it is required by the Board's administrative prac- tices. The showing of 30 percent interest however, has a limited purpose. It was devised as a means of facilitating the Board's decision as to whether the circumstances justified holding an election at all When used for this purpose, the Board has held that such a showing may not be subject to collateral attack. Sebastopol Cooperative Cannery Co., 111 NLRB 530, 35 LRRM 1510 (1955) Consistent therewith the Board has refused to permit attack on the procedure employed in establishing a showing of interest or to pass on allegations that cards supporting the petition are false or otherwise invalid. 24 Annual Report NLRB 14- 15 (1959). As is readily apparent, there is a great deal of difference between using the 30 percent showing to support a decision to hold an election and in using it as an evidentiary basis for an unfair labor practice finding. The Board itself has indicated, on at least two occasions, that membership cards are not reliable evidence of employee union allegiance where there are rival unions competing for membership. As the Brotherhood indicated in its brief here a third union, the United Packinghouse Workers of America, AFL- CIO, filed an election petition on June 29, 1959, which was withdrawn on August 7, 1959, only to be followed by the Meatcutters petition filed on August 13, 1959 There is one other evidentiary fact to round out the picture. At the time when the agreement was renewed it appears that approximately 95 percent of Respond- ent's employees at the Harrisburg plant were having dues for the Brotherhood deducted from their pay pursuant to voluntary authorization , and that during the so-called "escape period," which occurred prior to September 1, 1959, no employee revoked an authori- zation. In the absence of substantial evidence in the record to support the finding that the employer had a reasonable basis for believing that the Brotherhood no longer represented a majority of its employees, the Board's ultimate finding of an unfair labor practice must fall. Respondent and ICW correctly argue the factual situation in Swift to be strikingly similar to that in the instant case It may even be conceded that if Swift recites the needed legal prerequisites a Mid- West Piping violation can- not be found. Indeed the instant case is even stronger for, as we have seen, not even a notice of hearing issued. If Swift be followed it becomes irrelevant that a rival union may have initiated steps to perfect its representation claim, that an employer had become aware of such claim, or that a rival union had submitted a substantial interest showing. Absent the presence of other factors clearly signify- ing the validity of the rival claim or the presence of other independent acts of assistance to the incumbent, the employ- er would remain free to bargain with the incumbent until such time as the Board had made its formal determination that there was a question concerning representation. While to adopt the rationale of Swift would result in dismissal of the instant charge, I am not convinced that Swift represents existing Board policy , or that its application to the controversy before me is either appropriate or required It is well established that as Trial Examiner I am required to follow the rulings of the Board rather than those of courts which have differed with Board hold- ings.' Nowhere do I find Board acceptance of the rule as expressed in Swift or anything else which closely approaches it. The General Counsel relies on the Board 's view as expressed in Shea Chemical Corporation, 121 NLRB 1027 No case has been cited, or found, which suggests that the Board, as distinguished from the courts , has departed from the rationale which appears to underlie its decision in Shea. The Board makes the following statement in Shea: We now hold that upon presentation of a rival or conflicting claim which raises a real question concerning representation, an employer may not go so far as to bargain collectively with the incumbent (or any other) union unless and until the question concerning representation has been settled by the Board. This is not to say that the employer must give an undue advantage to the rival union by refusing to permit the incumbent union to continue administering its con- tract or processing grievances through its stewards. We further find that a real question concerning repre- sentation was raised here by the Oil Workers' petition, supported as it was by an adequate administrative showing of interest, and that no adverse implication can be drawn from the Oil Workers ' exercise of its statutory right to file an unfair labor practice charge. However, we wish to make it clear that the Mid- West Piping doctrine does not apply in situations where, because of contract bar or certification year or inappro- priate unit or any other established reason , the rival claim and petition do not raise a real representation question . [Emphasis supplied] Shea suggests it to be appropriate in furtherance of protecting employee rights of free choice to halt the course of continued bargaining at a far earlier point than would occur under Swift Swift would permit such bargaining without seeming limitation throughout the period needed to schedule and conduct a hearing, and for what additional time was needed for the Board to reach a final decision. During this entire time the incumbent would have invaluable assistance stemming from Respondent's recognition and bargaining , and, even though a question of representation be found and an election ordered , it would be conducted under conditions in which the employee choice in all likeli- hood would have been influenced by just such assistance. Shea on the other hand would demand a stop to continued bargaining at a point where it first became known to the employer that a supported petition had been filed. 6 Novak Logging Company, 119 NLRB 1573, Insurance Agents' Interna- tional Union AFL-CIO [The Prudential Insurance Compani of 4nierica]. 119 NLRB 768 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The court in Swift appears to misunderstand the nature of the administrative determination regarding the interest showing. The court holds that while it may be proper to use the Director's determination when deciding whether to conduct an election, the same determination must not be used as an "evidentiary basis for an unfair labor practice finding." This has a superficial appeal which will not with- stand scrutiny. The statute grants to the Board authority to process petitions "if it has reasonable cause to believe a question of representation" exists. The Act embodies no showing requirement and the Board has made use of such solely to protect its own processes. Showing has never been regarded as a jurisdictional requirement needed for the Board to find a question of representation. On the contrary, showing has uniformly been considered a nonlitiga- ble determination. The court, although characterizing the determination before a hearing as "evidentiary" and not sufficient to support a Mid- West Piping violation, inconsis- tently holds formal determination after full hearing to be sufficient. The court overlooks the fact that insofar as the showing issue is concerned, a determination at this point is based on no different considerations than the earlier one. Absent a right to litigate the issue in the representation case, this is necessarily so. Actually, the determination is not evidentiary at any point in the same sense as other factual issues. It is a matter which the statute leaves to the Board, and which absent any showing of administrative irregularity, the Board may resolve without litigating the question. The Board, not the courts, should determine what approach best effectuates the policies of the Act. We must next consider the Shea principles as applied to the controversy before us Respondent first learned of the rival claim of ILWU by official notice from the Board of the filing of a petition. While the notice alone does not establish the existence of a real question of representation, it suggests the possibility. However, the notice was accompanied by a request for a current payroll to enable the Board to determine if the claim was supported by the required showing. We may presume that had Respondent elected to send in the payroll, and a check had revealed that the showing did not meet Board standards, the petition would have been dismissed Respondent would then have been free to resume bargaining with ICW without risk of an unfair labor practice charge Respondent, however, by its own choice, failed to furnish the payroll thereby rendering an accurate check of interest showing impossible. It followed this by resuming bargaining with ICW. The bargaining precipitated the charge. At some point the Regional Director concluded that considering Respondent's failure to furnish a payroll, the number and presumed validity of the ILWU cards, and the ILWU estimate of unit size, it was reasonable to determine that a real question concerning representation existed. He thereupon alleged in his complaint that in view of such question Respondent's continued bargaining with ICW constituted an unfair labor practice. I see no significant factual basis for distinguishing this case from Shea. While it is true that notice of hearing did issue in Shea, this amounts to no more than an adminis- trative assertion that there existed a sufficient showing to support a question of representation It differs in no significant measure from the similar administrative assertion made here by the Regional Director in the complaint. In either event it relates to a nonlitigable issue. The Board held the administrative determination in Shea to establish the question and to suffice to support a Mid- West Piping ,violation. I would reach the same result here absent the existence of countervailing considerations or equities that would point in another direction. Contrary to Respondent and ICW I see few equities to support their positions Respondent deliberately refrained from putting the showing issue to a test in the one way appropriate. By its own choice it elected to resume bargain- ing with ICW and disdained cooperation with the govern- ment agency charged with resolving representation issues. Whatever reasonable cause Respondent may have had to believe ICW to represent a majority became subject to doubt upon notice of the ILWU petition. While it may have had no reason to believe ILWU to represent a majority, it ignored the only appropriate way to ascertaining if ILWU represented a sufficient number to meet Board interest standards. Instead it embarked upon a course of irreversible assistance to its own choice for employee representative. Now it would defend its action by claiming ILWU never had a sufficient showing, and now it offers the payroll and presses to litigate the validity of the cards. As has already been said repeatedly, the validity of the cards is nonlitigable. Respondent cannot now be heard to invoke a payroll check after having declined to do so earlier, and after having reaped the benefits of the assistance course which it voluntarily embraced Under the circumstances I deem it appropriate for the Regional Director to have acted on the information at hand, and to have determined that a real question concerning representation existed, and I so find. With all due respect to the contrary conclusions reached by the courts in Swift and other cases, I am satisfied they do not represent prevailing Board doctrine. For reasons set forth above I deem the rationale of Shea to be controlling, and find that Respondent here, as did the employer in Shea, acted unlawfully in the face of a real question concern- ing representation I deem it reasonable that the Board require an employer officially notified of a rival union petition to cooperate in a showing check or suffer the consequences. I find that Respondent by failing to test the sufficiency of the ILWU showing rendered it reasonable and appropriate for the Regional Director to make his determination, and that the Regional Director properly determined a real question concerning representation to exist at the time Respondent resumed the bargaining with ICW. I further find that Respondent's continued bargaining in the face of such question concerning representation consti- tuted unlawful assistance to ICW, and that thereby Respond- ent engaged in conduct violative of Section 8(a)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, PETER PAUL, INC 291 intimate, and substantial relation to trade, traffic, and com- merce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act Having found that Respondent has violated Section 3(a) (1) and (2) of the Act by continuing to bargain, and by executing a contract with ICW while there was a question concerning representation, I shall recommend that Respond- ent withdraw and withhold recognition from ICW, or any successor, and cease and desist from enforcing and maintain- ing its contract with ICW as the collective-bargaining repre- sentative of its employees unless and until ICW shall have been certified by the Board. I shall further recommend that the allegations of paragraph 9 of the complaint be dismissed. Because of the narrow scope of the unfair labor practices found herein, I shall recommend a narrow cease-and-desist order. Upon the basis of the foregoing findings and conclusions, and upon the entire record in the case, 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. ILWU and ICW are each labor organizations within the meaning of Section 2(5) of the Act 3. A question concerning representation existed among the employees of Respondent at all material times after May 1, 1968. 4. By continuing to bargain and entering into a contract with ICW while there was a question concerning representa- tion, and by enforcing and maintaining such contract, Respondent engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent, Peter Paul, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Continuing to recognize or bargain, or enforcing or maintaining its collective-bargaining agreement, with ICW, or any successor thereto, as the statutory representa- tive of its employees unless and until ICW shall have been certified by the Board. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from ICW, or any successor thereto, unless and until such organization shall have been certified by the Board as the statutory representative of Respondent's employees (b) Set aside its existing collective-bargaining agreement with ICW (c) Post at its plant in Salinas, California, copies of the attached notice marked "Appendix."' Copies of such notice to be furnished by the Regional Director for Region 20, shall, after being duly signed by an authorized representa- tive, be posted immediately upon receipt thereof and be maintained 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 such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' IT IS FURTHER RECOMMENDED that the allegations of paragraph 9 of the complaint relating to alleged acts of interference with employee rights be dismissed. ' In the event that this Recommended Order be 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 be enforced by a decree of the 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 " ' In the event that this Recommended Order he 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 the 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 Relations Act, as amended, we hereby notify our employees that. WE WILL cease recognizing and withhold recognition from Industrial Candy Workers Union, and will cease maintaining or enforcing our contract with the same union, unless and until such union be certified by the National Labor Relations Board as the exclusive representative of our employees. WE WILL NOT in any like or related manner interfere with the rights of our employees as guaranteed by Section 7 of the Act. PETER PAUL, INC. (Employer) Dated By (Representative) (Title) 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, 13050 Federal from the date of posting and must not be altered , defaced, Building, 450 Golden Gate Avenue, Box 36047 , San Francis- or covered by any other material . co, California 94102, Telephone 556-0335. If employees have any question concerning this notice or compliance with its provisions , they may communicate