Dietz Forge Co. of Tennessee

DIETZ FORGE CO. 19 Dietz Forge Company of Tennessee and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Local 263 Dietz Forge Company of Tennessee and W. David Stinson, Jr., Attorney, Petitioner and Inter- national Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL- CIO Dietz Forge Company of Tennessee , Petitioner and International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths , Forgers and Helpers, AFL-CIO. Cases 26-CA-2752, 26-CA-2992, 26-RD-153, and 26-RM-230 September 27, 1968 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On July 10, 1968, Trial Examiner Lowell Goerlich issued his Decision in the above 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. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal thereof. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examin- er's Decision, and briefs in support of their excep- tions. 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 these cases 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 these cases, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner, only to the extent consistent here- with. The Trial Examiner concluded that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the incumbent Union. This conclusion was based on his finding that employee Mills was the Respondent's agent, and that, by virtue of Mills' solicitation of employee signatures to union disaffection petitions and promises of benefits to employees, the Respondent engaged in conduct which negated any good-faith doubt as to the Union's majority status. We find merit in the Respondent's exceptions to these findings. The record discloses that, although prior to July 18, 1966, when Ralph Goldworthy was made shop foreman, Mills may have exercised a supervisor's powers, he had no supervisory authority at any time material herein.2 In addition, there is no evidence that the Respondent knew of or authorized the circulation of the petitions by Mills3 or that em- ployees might reasonably believe the Respondent condoned or had authorized Mills' activities. Nor does the fact that Manager Dietz solicited an employee signature after the petition had been turned over to him to show that he had prior knowledge of the petition or that he had fostered it. In these circum- stances, the acceptance of a disaffection petition by the Respondent does not retroactively constitute Mills an agent. It is clear from the evidence that no grievances were ever filed by the Union during the life of the collective-bargaining agreement. Furthermore, the Union had failed to avail itself of an opportunity given to it by the Respondent to visit the plant once a month to collect dues. In fact, no Union represent- ative or Union steward ever attempted to meet or did meet with the Respondent at the plant during the life of the contract to discuss the agreement or any terms or conditions of employment of the Respondent's employees. In addition, the two Union stewards in the plant had signed an earlier decertification petition and told Manager Dietz in April and November 1967, that they did not want the Union anymore. Moreover, the Union's margin of victory in the election had been extremely close. We find that these facts establish that the Respondent had a reasonable basis for doubting the Union's continuing majority when it filed the RM petition on November 13, 1967. Accordingly, we overrule the Union's objections to the election conducted in Cases 26-RD-153 and 26-RM-230 on January 11 and 12, 1968, and shall dismiss the consolidated complaint in Cases 26-CA-2752 and 26-CA-2992 in its entirety. As the Union failed to receive a majority of the valid I In view of the decision herein we do not deem it necessary to consider the General Counsel 's exception to the remedy recommended by the Trial Examiner. 2 In fact, the record shows that the employees did not consider Mills to be a supervisor 173 NLRB No. 5 3 The "small shop " theory is insufficient to support a finding of agency of a rank and file employee absent some direct evidence of the Respondent 's awareness of the conduct , such as testimony that the Respondent 's supervisors had knowledge of the activities of the alleged agent. Cf. Birmingham Publishing Company, 118 NLRB 1380 , affil. 262 F.2d 2 (C.A. 5). 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballots cast, we shall certify the results of the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots cast in the election conducted in Cases 26-RD-153 and 26-RM-230 has not been cast for International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and that the said labor organization is not the exclusive bargaining representative of the em- ployees in the unit found appropriate, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner. On November 13, 1967, the Dietz Forge Company of Tennessee, herein some- times called the Respondent or the Employer, filed a timely petition for an election in Case 26-RM-230 and on Novem- ber 21, 1967, a decertification petition was filed in Case 26-RD-153. Based upon these petitions and pursuant to a stipulation for certification upon consent election approved by the Regional Director for Region 26 of the National Labor Relations Board (herein referred to as the Board) on December 8, 1967, a secret-ballot election was conducted on January 11 and 12, 1968, among certain employees` of the employer at its Memphis, Tennessee, plant The tally of ballots showed that there were approximately 27 eligible voters and that 27 ballots were cast, of which 11 were for the Union, 14 were against the Union, and 2 were challenged. On January 18, 1968, the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, filed timely objections to the conduct affecting the results of the election. The Regional Director caused an investigation of the objec- tions to be made and thereafter, on March 8, 1968, issued and served on the parties his report on objections. In his report the Regional Director recommended to the Board that objections 1, 2, 4, 7, and 8 be overruled. He further recommended that Cases 26-RD-153 and 26-RM-230 be consolidated with Case 26-CA-2992 in which a complaint was to be issued, for the purpose of resolving the issues raised by objections 3, 5, and 6, and additional alleged interference which were the same as certain conduct alleged in Case 26-CA-2992 involving the same employer. No exceptions to the Regional Director's report were filed by any of the parties within the time provided therefor On March 26, 1968, the Board adopted the Regional Director's recommendations as contained in his report. The Board ordered that a hearing be held for the purpose of receiving evidence to resolve the issues raised by the Union's objections 3, 5, and 6 and the additional alleged interference 2 and that such hearing be consolidated with any hearing on the complaint to be issued in Case 26-CA-2992 and held before a Trial Examiner to be designated by the Chief Trial Examiner The matter was referred to the Regional Director for Region 26 for the purpose of arranging such hearing Thereafter, on March 29, 1968, the Regional Director issued an order consolidating cases, consolidated complaint, and notice of hearing in Cases 26-CA-2752, 26-CA-2992, 26-RM-230, and 26-RD-153. The charges in consolidated Cases 26-CA-27523 and 26-CA-2992 were filed by the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO and its Local 263 herein referred to as the Union on April 26, 1967, and January 31, 1968, respectively. In the consolidated complaint it was alleged that the Re- spondent, Dietz Forge Company of Tennessee, had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act The Respondent filed timely answer denying that it had engaged in or was engaging in the unfair labor practices alleged. The cases came on to be heard on May 15 and 16, 1968, at Memphis, Tennessee Each party was afforded a full opportu- nity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions of law, and to file briefs All briefs have been reviewed and considered by the Trial Examin er.4 Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the following FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent Dietz Forge Company of Tennessee is now and has been at all times material herein, a Tennessee corporation with its principal plant and place of business in Memphis, Tennessee, where it is engaged in the manufacture, sale, and distribution of forge metal products. During the past 12 months Respondent, in the course and conduct of its business operations, shipped goods valued in excess of $50,000 from its 1 All production and maintenance employees including inspectors at the Employer 's Memphis , Tennessee , plant, excluding all office clerical employees , guards , professional employees and supervisors as defined in the Act 2 Objections 3, 5, and 6 were as follows The petition to decertify the Union was solicited by an employee who the employees know to be a supervisory employee or a Company agent Employees were told by the Company if the Union was voted out they would get a substantial raise and the piece work prices would be straightened out Some employees were told if the Union was voted out the Negro employees would be fired 3 A settlement agreement in Case 26-CA-2752 was vacated and set aside by the Regional Director. 4 W David Stinson, Jr , attorney, petitioner in Case 26-RD-153, although served with notice of the proceedings , did not appear at the hearing. DIETZ FORGE CO. 21 Memphis, Tennessee, plant, directly to points outside the State of Tennessee and during the same period Respondent pur- chased goods and materials valued in excess of $50,000 directly from points outside the State of Tennessee. The Trial Examiner finds, as is admitted by the Respondent, that at all times material herein the Respondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Local 263,5 are now and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES First On or about June 10, 1966, a majority of the employees of the employer in an appropriate unit, by a secret-ballot election6 conducted under the supervision of the Regional Director for Region 26 designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent, and on or about June 20, 1966, the Regional Director certified the Union as the exclusive bargaining representative of the employees in said unit. Thereafter the Respondent and the Union commenced negotiations Sometime "around January 21st" the agreement reached was ratified by the union membership The agreement was "put in effect [by the Respondent] approximately the first week in February of 1967, made retroactive to January the 23rd of '67." Nevertheless, the Respondent, rejecting the advice of its attorney, refused to sign the agreement, asserting that if it signed the agreement its employees would strike. The Union filed unfair labor practice charges on April 26, 1967, in Case 26-CA-2752 On or about April 27 employee Floyd Mills circulated a union disaffection petition which was used in support of the petition filed in Case 26-RD-153.7 Both Stewards Willie Davidson and Robert Pounders signed the petition 8 Pursuant to a settlement agreement approved by the Regional Director on or about June 7, 1967, the Respondent signed the contract which by its terms was to expire at midnight January 22, 1968. While the Respondent refused to give the Union a "check- off" clause in the agreement the Respondent agreed that the Ur'lon be allowed to use its offices once a month for the collection of dues. During the life of the agreement the Union did not exercise this privilege. After the Union became the bargaining representative the record reveals that none of the union representatives ever filed a grievance with the Respondent on behalf of any employee from the date of the election through the life of the collective-bargaining agreement 9 During the year of 1967 International Union Representative Joseph Talarico visited the Respondent's plant on only one occasion. The purpose of this visit by Talarico was to ascertain whether the Respondent was fully complying with the settlement agreement it had signed in Case 26-CA-2752. The Respondent, nevertheless, received a request dated November 6, 1967, from the Union to negotiate a new collective-bargaining agreement. By letter dated November 9 1967, the Employer's attorney responded in part Naturally, it is our client's desire to meet with you at any mutually convenient time if you do, in fact, represent a majority of the production and maintenance employees at Dietz Forge Company. It is our sincere belief that you do not represent a majority of the said employees and, accordingly, we have filed a petition with the National Labor Relations Board this date. A copy of this petition is enclosed for your convenience.' 0 The Employer's petition was filed on November 13, 1967. By letter dated November 16, 1967, the Respondent was advised that, in that the Respondent had not submitted in support of its petition sufficient evidence "to establish that the Employer had some reasonable grounds for believing that the union has lost its majority status since certification, in accordance with the principles established in United States Gypsum Company, 157 NLRB 652... if the Petition is not withdrawn by 5 00 p.m. on Monday, November 20, 1967, it will be dismissed." In response to the suggestion of dismissal on November 20, 1967, the Employer filed with the Board a petition of union disaffection signed by 15 employees which the parties stipu- lated had been circulated by employee Floyd Mills on November 17, 1967.11 On or about November 21, 1)67, employee Mills circulated another union disaffection petition which was used in support of the decertification petition filed with the Board on November 21, 1967, in Case 26-RD-153.12 Second The General Counsel claims that the Respondent is saddled with employee Mills' solicitations and other alleged unlawful activities either because Mills was a supervisorl3 or an agent within the meaning of the Act. 5 Local 263 together with the International was a party 'o the contract executed on or about June 7, 1967 It is named as a party to these proceedings 6 The election results were 15 for the Union and 13 against the Union. 7 The parties so stipulated. 8 Plant Manager Billy C Dietz testified without contradiction that he "had been told by the union stewards , Willie Davidson and Robert Pounders , that they didn 't want anymore to do with the union." 9 Evidence establishes that no dues were collected by the Union after February 1967. This evidence was excluded by the Trial Examiner during the hearing However , the Respondent has since moved to make it a part of the record . There being no opposition filed thereto the motion is granted 10 The record is barren of any credible evidence that the Respond- ent at any time thereafter assumed any obligations imposed by Section 8(a)(5) of the Act to bargain collectively 11 The petition contained the following language Bill [Billy C Dietz , Manager of the Respondent] As you know we have told you time & time again we do not want the union in the shop. 1 2 The parties so stipulated 13 The Trial Examiner at the hearing considered whether or not the General Counsel had established a prima facie case supporting a finding that Mills was a supervisor within the meaning of the statute at the time the alleged unfair labor practices were alleged to have been committed. The Trial Examiner found that the General Counsel had not established a prima facie case and dismissed those portions of the complaint which referred to Mills as an alleged supervisor of the Respondent However the record discloses that prior to July 18 , 1966, when Ralph Goldworthy was made shop foreman, Mills may have exercised a supervisor 's powers 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Act provides in Section 2(13) "In determining whether any person is acting as an agent of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually author- ized or subsequently ratified shall not be controlling." The Supreme Court teaches in International Association of Ma- chinists, Lodge 35 [Sernck Corp.] v N.L R.B., 311 U.S 72, 80, that an employer may be held accountable "even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of Respondent superior." The Supreme Court opined further "We are dealing here not with private rights nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domi- nation, or influence The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. Thus, where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unham- pered freedom of choice which the Act contemplates." Facts touching upon the alleged agency of Mills are as follows Mills openly circulated the petitions referred to above on the Employer's time and property under circumstances in which management representatives were, by their presence, m a position where they could have observed Mills' activities. The Respondent's shop was small with an employee complement of approximately 27 employees Manager Billy C. Dietz admitted that he had seen the two petitions. On "a Friday evening" he testified that he saw the petition circulated on or about November 17, 1967, and that on the "next Monday of the following week" he viewed a petition of similar character There is no dispute in the record that Mills delivered the petition circulated around November 17, 1967, to Manager Dietz on Friday, November 17, 1967. In soliciting signatures for the petitions, Mills made certain representations to the employees contacted To Steward Willie Davidson he said (when Davidson indicated that he was not going to sign the petition circulated around November 17), "Well, these names on here, Bill Dietz will see them and he'll remember them for a long time." Mills also told Davidson that "if the employees voted the union out he'd guarantee [them] a good raise " About 2 weeks before the election Davidson conversed further with Mills at which time Mills told him, at his place of employment, that "if [the employees] get rid of this union [they would] get more money, he'd guarantee [them] more money, and [they would] get rid of all the Niggers and anything else they wanted like that." Mills said 14 During the Christmas holidays the employer had engaged an integrated party for its employees A substantial number of the Respondent's employees were Negroes. 15 Dietz admitted that the petition had been given to him by Mills In certain aspects his testimony , however, differed from that of Davidson Under the circumstances the Trial Examiner views Dietz' that he would talk to "Bill Dietz and see that [the employees] got the raise." Mills commented further that "if we'd get rid of the Union we'd get rid of the Niggers, we could have parties"4 like we wanted them, and we could get more money, and it would be a better place to work." During this conversation employees Ball and Myles were present. Mills asked Henry Roane to sign a union disaffection petition sometime in the fall. After he indicated a reluctance, Mills said "Well, if you get the union out you'll get more pay." Mills also talked to employee Roane "in November or December " The subject of money came up. Mills said " ... if the union was voted out, if the union wasn't in [Roane would] get more money, if they put the union out." When Mills solicited employee Paul Taylor he said to him, "Sign this piece of paper and we'll get rid of the Union, get it out of the shop." Mills commented to several employees during the "general time period" of the election that "he couldn't get no raises there, that the Union and the Labor Board, and everything, had the wages all tied up, and that if everybody would just get together and get rid of the union [the employees would] all be better off, and get more money." On the evening of Friday, November 17, 1967, at quitting time, Mills approached Steward Davidson again about signing the petition. Davidson refused to sign and told Mills that he did not believe his signature was "necessary." Mills left and proceeded to the office with the petition Shortly thereafter Davidson went to the office to pick up a check. Mills, Manager Dietz, and Elston S. Vaughn were present Davidson said, "Bill, I didn't sign that petition, I didn't think you needed my signature " Dietz responded, "I need all the signatures I can get " To which Davidson replied, "Well, let me have it and I'll sign it." Dietz went to a safe, procured the petition and handed it to Davidson. Davidson signed the petition and Dietz returned it to the safe. Davidson's signature is the last one appearing on the petition.' 5 Some time later Davidson asked Mills for a copy of the petition, commenting that he had heard that the signers were going to have to pay $50 each "to a lawyer." Mills responded that he would get him a copy. Later he advised Davidson that "Bill says there wasn't no copy " Mills said that he (Mills) was paying for "this lawyer" and that "the employees don't have to pay one penny." The petition, which was handed to Davidson by Dietz and signed in Dietz' presence, was the same petition which was presented to the National Labor Relations Board in support of the Company's petition filed in Case 26-RM-230. On December 22, 1967, while some of the employees were "eating dinner", Mills commented to Davidson, "Looks like he would give us a half day off ... for our shopping for Christmas." "[0] ne word brought on another" and Mills said, "I'll see if I can't get it off for ybu " Mills returned to the die room where several employees were eating lunch and according to Davidson said, `Bill said that we could have the half a day testimony as less plausible and is convinced that the incident occurred as described by Davidson In this respect Dietz is discredited. Neither Mills nor Vaughn were called for testimony Vaughn was one of the persons designated by the Respondent to remain in the hearing room pursuant to the sequestration of witnesses rule DIETZ FORGE CO. off " According to employee Myles, he heard Mills say, "Well, we got the half a day off."' 6 Mills also was quoted as saying, "I got it for you fellows." The employees received the half day off. "[A] round two weeks before the election" Mills said to Davidson, " . . if we get rid of this union ... we'd get rid of all the Niggers and everything else we wanted like that " Dietz, after the election had been held, informed the employees that such "rumor" was "hogwash."" The Trial Examiner is convinced and finds that Mills was an agent of the Respondent within the meaning of the Act. Controlling factors in this respect are (1) Mills openly solicited and obtained employee signatures to union disaffection petitions on company time and property in the presence of management representatives and thereby the Respondent's knowledge of Mills' activities is clearly implied (2) By Manager Dietz' statement to Union Steward David- son, to wit, "I need all the signatures I can get," the Respondent acknowledged that the union disaffection petition was its project. (3) By holding the union disaffection petition in its custody, and soliciting an employee's signature in the presence of employee Mills, the Respondent created the clear impres- sion that Mills was soliciting employee signatures for it and that it was fostering the petition (4) The Respondent utilized the union disaffection petition which it knew had been circulated by Mills and to which, by its own solicitation, it had added at least one employee's signature, as objective consideration to support its petition for an election which the Regional Director was about to dismiss for lack of evidence sufficient to support "that the Employer had some reasonable grounds for believing that the union has lost its majority status since the certification," and thereby the Respondent manifested an interest and purpose in Mills' activities. (5) While the Respondent was aware of Mills' activities in soliciting signatures, the Respondent did not disavow its connection or approval of such solicitation but rather allowed employees to believe that the Employer condoned and had authorized Mills' activities. (6) The Respondent's shop was so small that knowledge by the Respondent of Mills' activity in making promises in return for signatures must be implied. Appropos is the decision of the Board in Birmingham Publishing Co, 118 NLRB 1380, affd. 262 F.2d 2 (C.A. 5), and the following language at 1382 The failure of the Respondent to deny Johnson's authority to make such promises of reward and the failure to order him to desist from this activity, in the light of all the foregoing establishes clearly that Johnson was the Respond- ent's agent in these decertification activities. 16 Dietz testified that about 10 or 10 30 in the morning Mills came to him and said, "I think the boys want to see you during the lunch hour." Dietz replied, "Floyd, what's this all about," and Mills replied, `I think they want the rest of the day off with pay." Dietz said, "All nght I'll be over there during the lunch period ." (Emphasis supplied ) Dietz said that he went to the die shop and several of the men said to him, "How about the rest of the day off with pay9" Included among these employees were Willie Davidson , Carl Duffield, and Bill Cain, and "possibly Floyd Mills " Dietz replied, "okay, shut the furnaces off and take off " While it may have been that Dietz did appear in the die shop, nevertheless , the Trial Examiner is convinced that Mills did announce to 23 Thus, the Trial Examiner concludes that the Respondent's employees "would have just cause to believe" that Mills was a solicitor for the Respondent and that they were deprived of "the complete and unhampered freedom of choice which the Act contemplates." See International Association of Machin- ists v. N.L R.B, supra, 80. Moreover, the record does not bear out a conclusion that the increase of no-union votes from 13 in the first election to 14 in the second election was not the result of either the Employer's refusal to sign the agreement until June 7, 1967, the unlawful activities of its agent Mills, or both. Indigenous in these kinds of unfair labor practices are the natural and foreseeable consequences that such unfair labor practices will cause union disaffection. In that Mills was an agent of the Employer, the Respondent is guilty of a violation of Section 8(a)(1) of the Act by reason of Mills' solicitation of employee signatures to the union disaffection petitions used in support of the petitions filed in Cases 26-RD-153 and 26-RM-230 and is likewise guilty of a violation of Section 8(a)(1) of the Act in respect to Manager Dietz' activities in this regard. Moreover, the promises of benefits made by Mills to employees interfered with, coerced, and restrained employees in the exercise of rights guaranteed in Section 7 of the Act and were in violation of Section 8(a)(1) of the Act 1 8 Since the stipulated facts establish that Mills, on November 17, 1967, "circulated a petition which was used in support of the petition filed with the Board in Case 26-RM-230" and on or about November 21, 1967, Mills "circulated a petition which was used in support of the petition filed with the Board in Case 26-RD-153," it follows that the petitions "cannot be said to raise a question concerning representation," and it is recommended that each petition be dismissed. Birmingham Publishing Co , supra, 1383 Third: The question is presented, in view of the disclosures in the record, whether the Respondent, by its refusal to recognize and bargain with the Union as the exclusive representative of the Respondent's employees in an appropri- ate unit on November 9, 1967, and thereafter violated Section 8(a)(5) of the Act. As noted above the Employer's petition was filed on November 13, 1967. Not until November 20, 1967, did the Board's agents advise the Respondent that the petition presented sufficient obiective consideration to warrant pro- cessing and that its claim could have merit. Thus until November 20, 1967, the Respondent was under the obligation to bargain with the Union as required by Section 8(a)(5) of the Act. "If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. " Ray Brooks v. N.L R.B., 348 U.S. 96, 103. (Emphasis the employees that they were to be given the half day off The fact that Dietz said "all right " to Mills convinces the Trial Examiner that Mills carried such response to the employees and in this respect their testimony is credited. 17 Dietz, when asked where he had heard the rumor , was unable to point to a specific employee as the source. It is of significance that Dietz did not belie the rumor until after the election , all of which adds weight to the inference that Mills' statements were condoned 18 "Interference is no less interference because it is accomplished through allurements rather than coercion ." N L R.B v. Bailey Com- pany, 180 F.2d 278, 279 (C.A. 6) 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supplied.) Nevertheless, by reason of the Respondent's unlaw- ful acts, its alleged petition for relief, as well as the decertification petition filed a few days later, was not available as a means for testing the validity of the Respondent's doubts, for such petitions, tainted as they were by the Respondent's unfair labor practices, could not raise a question concerning representation. It is only when "a question of representation exists" that the Board is empowered to direct an election at which an employer's doubt may be resolved. (See Section 9(c) of the Act.) Thus, in that no question of representation was lawfully pending before the Board, whether the Employer questioned the Union's continued majonty status in good faith must be tested by the prevailing criteria. In Celanese Corpora- tion of America, 95 NLRB 664,19 the Board has said. By its very nature, the issue of whether an employer has questioned a union's majonty in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a particular case. But among such circumstances, two factors would seem to be essential prerequisites to any finding that the employer raised the majority issue in good faith in cases in which a union had been certified. There must, first of all, have been some reasonable grounds for believing that the union had lost its majority status since its certification. And, secondly, the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union. [Emphasis supplied.] Thus in order to avail itself of a valid claim that it raised the majonty issue in good faith the Employer, where the Union has been certified as a statutory bargaining agent, must not have raised the majority issue "in a context of illegal antiunion activities, or other conduct aimed at causing disaffection from the union." But the Respondent did just that when it fostered and participated in the solicitation of union disaffection petitions, for such conduct was clearly in violation of Section 8(a)(1) of the Act. Birmingham Publishing Co., supra It must ineluctably follow, therefore, that the certification continued unabated and the Respondent's obligation to bargain remained intact. Thus by the Respondent's refusal to bargain on November 9, 1967, and at all times thereafter the Respondent violated Section 8(a)(1) and (5) of the Act. To permit the Respondent to continue its refusal to recognize and bargain with the Union after its participation in the solicitation of union disaffection in support of petitions to test the Union's majority status is to allow the Employer to profit by its own wrong, a result incompatible with equity and justice and the Act's high purposes. Fourth- The General Counsel alleges in the complaint in substance that the grant of the half holiday on December 22, 1967, was a violation of Section 8(a)(5) of the Act in that the Union was not afforded an opportunity to negotiate in respect thereto. This allegation must be dismissed since it is clear that Mills, an agent of the Respondent, discussed the matter with Davidson, a union representative, before action was taken and that Davidson indicated concurrence in the action taken. That part of the complaint alleging that the Respondent violated Section 8(a)(5) of the Act by the grant of the half holiday on December 22, 1967, is dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE RECOMMENDED REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, the Trial Examiner recommends that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. It is palpable that months from now, when this matter shall finally reach repose, a bare order to bargain will only acknowledge the formalities of the law since the Union may be without any bargaining power while the employer may retain the full possession of the fruits of its violation which contributed to the Union's loss of bargaining power. Cf. Montgomery Ward & Co. v NL.R.B., 339 F 2d 889, 894 (C.A 6) At such time not only will the Union's bargaining power have been lessened by reason of the Employer's past unfair labor practices but the growth of union affection will have been stifled by the inability of the Union to fulfill its function as the exclusive bargaining agent. For the employee to continue to adhere to a seemingly torpid Union whose effectiveness is blocked by an Employer's unfair tactics is indeed an exercise in futility. Moreover , it is likewise an exercise in futility for a union to participate in collective bargaining without employee support Under these circum- stances the balance of bargaining power tilts toward the employer and the employer enjoys a status not unlike the absence of a union. These, then, are the fruits of its unfair labor practices Thus where by unfair labor practices an employer has contributed to the loss of a union's bargaining power, it seems just and within the aspirations of the Act to afford the Union an opportunity to relate itself to the Employer's employees Such opportunity is justified to an even greater degree where, as here, the Employer has used its time and property for personal employee contacts by which it has created an atmosphere in which employees' complete and unhampered freedom of choice was frustrated and employee defection from the Union was encouraged and abetted. 19 Celanese has been recently cited for the proposition The Board has frequently stated the applicable rule That after the certification is 1 year old , an employer can refuse to bargain with the union on the ground that it doubts the union 's majority, provided that this doubt is a good-faith doubt predicated on objective considerations that establish reasonable grounds for believ- ing that the union has lost its majority status since its certification. Lloyd McKee Motors, Inc, 170 NLRB No. 140. DIETZ FORGE CO. It has been stated by Justice Harlan in a concurring opinion in Local 60, United Brotherhood of Carpenters, 365 U.S. 651, 657 The primary purpose of the provision for other affirma- tive relief has been held to be to enable the Board to take measures designed to recreate the condition and relation- ship that would have been had there been no unfair labor practice. In Jack G. Buncher d/b/a The Buncher Company, 164 NLRB No. 31, the Board has lately said It is Respondent's violation of the Act which requires the Board to apply a remedy that in its judgment offers a reasonable basis for remedying the violation found. In H W. Elson Bottling Company, 155 NLRB 714, 715, the Board said- .. the Board must "take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice." Bargaining power and union adherence is what has been lost to the Union. A remedy which aims at the recovery of lost bargaining power and union adherence and the restoration of the status quo ante will best effectuate the policies of the Act and will tend toward the extirpation of the evils flowing from the Respondent's unfair labor practices. Hence the Trial Examiner recommends that for a period of 60 days after the Respondent has posted the notice marked "Appendix" and has assumed its obligation to bargain as herein recommended, Respondent shall permit the Union and its representatives, upon reasonable request, freely to solicit union authorizations and conduct union organizational meetings of the Respond- ent's employees in the appropriate unit in the employer's Memphis, Tennessee, plant, during the employees' nonworking time if such activity does not interfere with the normal operations of Respondent's business. If at the end of the 60-day period the Union is unable to present convincing evidence that it has in its possession valid authorization cards or other indicia designating it as the bargaining representative for a majority of the employees in the appropriate unit and the Union does not in fact represent an uncoerced majority of the Respondent's employees in the appropriate unit, it is recommended that the obligations to bargain imposed upon the Respondent by Section 8(a)(5) of the Act cease and the Respondent be released therefrom but, of course, the Respondent must adhere to the requirements of the Recommended Order in full. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged m commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act for jurisdiction to be exercised herein. 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 20 In that as a part of the Recommended Order the Trial Examiner is recommending that the Respondent bargain collectively with the Union and embody in a signed agreement any understanding reached, any remedy in respect to matters composed in the settlement agreement 25 in the exercise of their rights guaranteed them by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4 By reason of the Respondent's unfair labor practices the representation election conducted on January 11 and 12, 1968, is void and of no effect and the petitions in Cases 26-RD-153 and 23-RM-230 must be dismissed. 5. All production and maintenance employees including inspectors of the Dietz Forge Company of Tennessee at its Memphis, Tennessee, plant, excluding all office clerical em- ployees, 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, as amended 6. By refusing on and since November 9, 1967, to bargain with the Union as the exclusive bargaining agent of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act 7 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 this case, it is recommended that Respondent, Dietz Forge Company of Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting and assisting employees to withdraw adher- ence to the Union (b) Unlawfully promising employees benefits if they with- draw their adherence to the Union. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in their rights to join, form, or assist International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Local 263, or any other labor organization to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. (d) Refusing to recognize and bargain collectively with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, in the above- described unit. 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the above- described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and embody in a signed agreement any understanding reached.' 0 would be merely cumulative For this reason no useful purpose appears for passing upon the issues presented by the vacating of the settlement agreement 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Memphis, Tennessee, plant, copies of the attached notice marked "Appendix."2 1 Copies of said notice, on forms provided by the Regional Director for Region 26, shall, after being duly signed by the Respondent's representa- tive, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Decision, what steps the Respondent has taken to comply herewith.22 IT IS FURTHER RECOMMENDED that the election con- ducted on January 11 and 12, 1968, be vacated, set aside, and held for naught and that the petitions in Cases 26-RD- 153 and 26-RM-230, be dismissed. It is further recommended that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 21 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." 22 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 Relations Act, as amended, we hereby notify our employees that WE WILL, upon request, bargain collectively with Inter- national Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Local 263, and if an understanding is reached, we will sign a contract with the Union The bargaining unit is All production and maintenance employees, including inspectors, but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act WE WILL NOT ask or encourage you to sign petitions against the Union WE WILL NOT promise our employees any benefits, the purpose of which is to induce them to forego their adherence to or membership in the Union WE WILL NOT m any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to join, form, or assist International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Local 263, or any other labor organization to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection or to refrain from any and all such activities. You are all free to become or remain members, or not to become and remain members, of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, and its Local 263, or any other labor organization and we will not punish you if you do DIETZ FORGE COMPANY OF TENNESSEE (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 direct- ly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161