Lowell Corrugated Container Corp.

LOWELL CORRUGATED CONTAINER CORP. Lowell Corrugated Container Corporation and United Papermakers and Paperworkers, AFL-CIO. Case 1-CA-6339 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On November 18, 1968, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner 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 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 Relations Board adopts as its Order, the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Lowell Corrugated Container Corporation, Lowell, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. In its answer to the complaint, at the hearing , and in its brief, the Respondent challenges the validity of the Union's certification by asserting that the Regional Director's findings in the representation proceeding were arbitrary or capricious, or based on determinations not in conformity with Board policies or provisions of the Act . Respondent further states that its refusal to bargain was, inter alia, for the purpose of securing Board review of the Regional Director's findings and certification . We note, however, that Respondent did not, in the representation proceedings, file with the Board exceptions or a request for review of the Regional Director 's Report on Objections and Certification of Representative, but has waited until this proceeding to challenge the certification on the grounds recited above. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 169 JAMES V CONSTANTINE, Trial Examiner: This case is an unfair labor practice case commenced pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. 29 U.S.C. 160(b). It was initiated by a charge against Respondent, Lowell Corrugated Container Corporation, filed on May 21, 1968, by United Papermakers and Paperworkers, AFL-CIO, the Charging Party herein. A complaint based on said charge was issued against the Respondent on July 1, 1968, by the General Counsel of the National Labor Relations Board, through the Regional Director for Region 7 (Boston, Massachusetts). Said complaint alleges that Respondent has engaged in conduct violating Section 8(a)(1), (2), (3), and (5), and that said conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondent has answered admitting some facts but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, on August 19 and 20, 1968, at Boston, Massachusetts. All parties were represented at and participated in the hearing, and had full opportunity to adduce evidence, examine, and cross-examine witnesses, file briefs, and offer oral argument. Briefs have been received from Respondent and the General Counsel. Respondent's motion to dismiss the complaint was denied at the hearing. This case presents the issues of whether Respondent: (1) Lawfully refused to recognize and bargain with United Papermakers and Paperworkers, AFL-CIO, herein called Papermakers. This, in turn, depends on whether the certification of the Papermakers by the Regional Director is valid; (2) Unlawfully assisted the Cleghorn Independent Employees' Union by deducting sums of money, including dues, from the wages of its employees on behalf of said Independent, a minority union, during the time that Papermakers was certified as the exclusive representative of said employees; (3) By deducting the monies described in (2), above, discouraged membership in Papermakers and encouraged membership in the Cleghorn Union. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS rO JURISDICTION Respondent, a Massachusetts Corporation, is engaged at Lowell, Massachusetts, in manufacturing, selling, and distributing cardboard cartons and related products. Annually it receives paper products, machinery, and other materials valued in excess of $50,000, directly from, and ships cardboard cartons and related products valued in excess of $50,000 directly to, points located outside the Commonwealth of Massachusetts. I find that the Respondent is an employer as defined in Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over the Respondent in this proceeding. 177 NLRB No. 44 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Papermakers and Cleghorn Independent Employees' Union, herein called the Independent, each is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Refusal to Recognize and Bargain with Papermakers On December 21, 1967, Papermakers filed a Petition for Certification of Representative in Case 1-RC-9871 for employees in a unit described as: All production and maintenance employees employed by the [Respondent] at its Bolt Street, Lowell, Massachusetts, plant, excluding office clerical employees, plant clerical employees, designers, artists, truckdrivers, professional employees, guards, and supervisors as defined in the Act. The Independent intervened in said representation proceeding, as it represented the employees involved and was a party to a collective-bargaining contract covering said employees. Said contract was due to expire on March 7, 1968. See General Counsel's Exhibit 5. Thereafter, on January 15, 1968, Respondent, Papermakers, and the Independent executed an Agreement for Consent Election, which was approved by the Regional Director on the next day. On the basis thereof, an election was conducted on February 8, 1968. Papermakers received a majority of the votes cast therein; i.e., 30 out of 58 ballots counted . See General Counsel's Exhibit 2(b). Subsequently, on February 15, 1968, Respondent and Independent each filed objections to conduct affecting results of this election . Following an investigation, the Regional Director on April 3, 1968, issued his Report overruling the objections as being unmeritorious, and, in the same document, certified Papermakers as the collective bargaining representative of the employees in said unit . See General Counsel's Exhibits 2(c) and 2(d). The Respondent's objections allege that 1. The notices of election as separately posted were in Spanish and English, the sample ballot thereon and the actual ballot being bilingual (English/Spanish) with the exception that the three voting choices on the ballot were in English only. A substantial majority of the voting.employees are Puerto Ricans who do not read or speak English or who do not read Spanish or English and speak only Spanish. A number of employees are Portuguese who do not read, write or speak Spanish or English. The ballots were thus totally unintelligible to the Portuguese employees and to the Puerto Ricans who do not read Spanish or English and only partially intelligible to those employees who read Spanish. Accordingly, the election could not have reflected the free choice of the employees. 2. Employees before and after voting continued to mill about within the immediate polling area and engaged in conversation in Spanish with employees standing in line to vote. Some employees were delayed in casting their ballots until these conversations were completed. By these and similar acts the election was conducted in an atmosphere of confusion and under circumstances that interfered with the laboratory atmosphere required for the conducting of Board elections. 3. United Papermakers and Paperworkers, AFL-CIO by its agents and representatives did engage in electioneering in the polling area. 4. United Papermakers and Paperworkers, AFL-CIO by its agents and representatives did offer to pay employees for unscheduled work time on the date of the election so as to interfere with their free choice in the election. 5. By these and other acts the free choice of the employees was interfered with and the election should be set aside and a new election conducted. Independent's objections assert that: 1. The changing of the General Manager prior to election. 2. The voting of an employee who had been terminated and then rehired after the deadline. 3. Officers of the Cleghorn Independent Employees' Union sitting in as observers for the United Papermakers and Paperworkers, AFL-CIO. 4. Area of observers hampered by employees. 5. Observers for the United Papermakers and Paperworkers, AFL-CIO being paid by the United Papermakers and Paperworkers, AFL-CIO without loss of time on the job. 6. Confusion and misunderstanding of ballot by foreign speaking employees. About April 24, 1968, Papermakers requested Respondent to bargain collectively with it as exclusive representative of the employees in said unit, and also asked Respondent to supply Papermakers with information containing: (1.) the names and dates of hire of all employees in said unit; and (2.) the job classifications and hourly rates of pay for said employees. Said information was necessary and relevant for Papermakers to bargain intelligently. Respondent on May 1, 1968, and since, has denied said request to bargain and refused to supply said information, claiming that the Certification of Papermakers was invalid and of no legal effect because the Regional Director, in overruling Respondent's and Independent's objections, acted arbitrarily or capriciously and not in conformity with Board policies or the provisions of the Act. B. The Checkoff of Dues for Independent After the Certification of Papermakers On March 7, 1966, Respondent and Independent executed a collective bargaining contract, expiring on March 7, 1968, which covers the employees in the unit involved herein. See General Counsel's Exhibit 5. It has not been renewed or extended . Among other provisions this contract contains a "Union Shop" clause (art. 17) and a "Dues Collection-Checkoff' clause (art. 18). The latter provides for a deduction of Independent's dues from wages of employees who authorize such withholding in writing and remitting the same to Independent by Respondent. From March 7, 1968, to July 1, 1968, dues were deducted by Respondent on behalf of the Independent from the wages of "on the average of nine" employees (out of 35 to 60 employees in the unit) who had executed dues authorization forms in March or April, 1967. An example of such form is in evidence as General Counsel's Exhibit 4. These dues were transmitted by Respondent to the Independent each month during such period of time. No evidence is in the record that any such checkoff has been revoked or terminated by any signer LOWELL CORRUGATED CONTAINER CORP. 171 thereof. During the "contract period" Respondent has complied with the terms of the Union Shop (art. 17) and Checkoff (art. 18 ) clauses of the contract between it and Independent. IV. CONCLUDING FINDINGS AND DISCUSSION A. As to the Refusal to Recognize and Bargain with Papermakers The parties signed an agreement for a consent election. At the election held on February 8, 1968, Papermakers received a majority of the valid ballots counted . Hence, it was entitled to be certified as exclusive representative of all employees in the unit involved unless merit was found in the Respondent's or the Independent's objections. Citation of authority on this aspect of the case would be supererogatory. However, since objections were filed it became incumbent upon the Regional Director to pass upon them; and his decision thereon , including the preliminary questions as to the nature of the investigation to be pursued and whether a hearing should be held on the objections, is final, subject to a limited review. This is the rule on consent elections. N. L. R. B. Rules and Regulations, Series 8, Section 102.62(a); Sumner Sand & Gravel Company, 128 NLRB 1368, 1370, enfg. 293 F.2d 754, 755 (C.A. 9); N.L.R.B. v. Carlton Wood Products, 201 F.2d 863, 866-867 (C.A. 9). Nevertheless, the finality of the Regional Director's decision is not absolute . It may be reviewed by the Board in specified, but narrow , instances. Thus, the Board has expressly held that it will not overturn a Regional Director' s determinations in consent election cases unless it can be affirmatively established that he was arbitrary, capricious, or acted not in conformity with Board policies or the provisions of the Act. Delta Drilling Company, 169 NLRB No. 93 . On this branch of the case the question, therefore, is whether the Regional Director's conclusions as disclosed in his Report on Objections (G. C. Exh. 2(c)) demonstrate that he acted arbitrarily, capriciously, or not consonant with Board policy or the statutory design as expressed in the Act. Preliminarily, it is desirable to point out that Respondent's contentions before me are based on the evidence previously submitted by the parties to the Regional Director. No additional evidence was offered by Respondent at the trial before me. It is true that Respondent sought unsuccessfully to reintroduce before me the very same evidence which it had previously offered to the Regional Director . But this was excluded on the ground that the objections case could not be relitigated de novo before me. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 158, 162; N.L.R.B. v. Air Control Products, 335 F.2d 245, 249 (C.A. 5); Sheridan-Peter Pan Studios, Inc., 173 NLRB No. 11; Valley Manor Convalescent Center, 172 NLRB No. 174; Cap Sante Vue, Inc., 172 NLRB No. 176. I proceed to consider Respondent's arguments attacking the certification of Papermakers. Respondent first contends that the "Regional Director's conclusion at page 4 of his Report on Objections that `the Spanish-speaking employees were afforded a full opportunity to be aware of the choices on the ballot and to make an effective and informed expression of their true desires' is a conclusion totally contrary to the evidence in this case." At most, this alleges error on the part of the Regional Director in analyzing evidence. But his determination in this respect will not be reversed "unless he acts arbitrarily or capriciously, or out of line with Board policy or the Act's requirements; and mere assertions of error are not sufficient ." Manning, Maxwell, & Moore, Inc. v. N.L.R.B., 324 F.2d 857, 858 (C.A. 5). Accord: N.L.R.B. v. J. H. Matthews & Co., 342 F.2d 129, 131-132 (C.A. 3), cert. denied 382 U.S. 832. In any event, I find that the Regional Director did not act arbitrarily or capriciously, or out of line with Board policy or the Act's requirements, in disposing of this objection, i.e., Employer Objection 1 and Independent Objection 6. Delta Drilling Company, 169 NLRB No. 93, cited by Respondent, does not compel a different result. Then, again, Respondent maintains that the "Regional Director's conclusion at page 5 [of his Report on Objections] that `the absence of Portuguese language notices was not detrimental to the two Portuguese speaking employees and in all the circumstances, as related, further finds that these employees were able to make an effective and informed expression of their true desires,' is not supported by any evidence in the Report of Objections and is totally contrary to the record testimony of the two employees themselves." This relates to Employer Objection 1 and Independent Objection 6. I find this argument amounts to no more than an assertion that error in assessing evidence was committed, and that such assertion is not sufficient to require that the Regional Director be reversed. N.L.R.B. v. J. H. Matthews & Co., 342 F.2d 129, 131-132 (C.A. 3), cert. denied 382 U.S. 832. And I further find that such Director did not resolve this issue arbitrarily, capriciously, or not in conformity with Board policy or the provisions of the Act. Laars Engineers, Inc., 173 NLRB No. 90. Another contention of Respondent attacks the Director's conclusion that he "found no merit in Respondent's objection that the Papermakers engaged in electioneering in the polling area ." This relates to Respondent's Objection 3. But this objection merely insists that the Regional Director erroneously assessed the evidence. Such a ground, i.e., an erroneous evaluation of the record by a Director, will not cause the Board to reverse his determination, even though the Board would arrive at another conclusion . And I further find that this alleged error does not amount to arbitrary or capricious conduct, or constitutes action inconsistent with Board policies or statutory objectives. McMullen Leavens Company, 83 NLRB 948, 952-953, 955. Hence I find no merit in this objection. Respondent's next objection assails the Director because he "found no merit to Respondent's objection that '. . . the election was conducted in an atmosphere of confusion and under circumstances that interfered with the laboratory atmosphere required of Board elections'." This is Respondent's Objection 2 and Independent's Objection 4. These arguments at most demonstrate that the Director incorrectly assessed the evidence before him on these issues, but they fail to disclose action which is arbitrary, capricious, or not consonant with Board policies or the mandates of the Act. Respondent's Objection 4 and Independent's Objection 5 claim that the Papermakers unlawfully paid or offered to pay employees and observers for loss of time at the election. Although he found that the observers were paid, the Regional Director concluded this was sanctioned by Board decisions. Shoreline Enterprises, 114 NLRB 716. Teletype Corporation, 122 NLRB 1594, is distinguishable, for there the unions there involved in effect were buying 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the votes of employees who were eligible to vote in an election. But the Regional Director found as a fact that the remaining part of the objections lacked merit because unfounded on the evidence before him. Accordingly, I find no merit in attacking his conclusions thereon simply because his evaluation of the evidence may not be relitigated before the Board. N.L.R.B. v. Hollywood Brands, Inc., 398 F.2d 294 (C.A. 7); N.L.R.B. v. Continental Nut Co., 395 F.2d 830 (C.A. 9); Neuhoff Bros. Packers, Inc. v. N.L.R.B., 362 F.2d 611, 613 (C.A. 5), cert. denied 386 U.S. 956; Adams Drug Co., Inc., 171 NLRB No. 13; Rod-Ric Corporation, 171 NLRB No. 134. Issues which were or could have been raised in the prior representative proceeding may not be relitigated in a subsequent related refusal to bargain proceeding absent newly discovered or previously unavailable evidence or special circumstances. Hevi-Duly Electric Company, 172 NLRB No. 98; Bausch & Lomb, Incorporated, 171 NLRB No. 114. And I find nothing unlawful per se in compensating observers at elections. N.L.R.B. v. Huntsville Mfg. Co., 203 F.2d 430, 434 (C.A. 5); Dallas City Packing Co., 110 NLRB 8, 9-10. Respondent also attacks the Regional Director's disposition of its challenges alleging that Papermakers engaged in electioneering in the polling area (Objection 3) and that the "election was conducted in an atmosphere of confusion and under circumstances that interfered with the laboratory atmosphere required of Board elections" (Objection 5). See Respondent's Brief, pp. 19-20. But I find that essentially these two objections are directed to the correctness of the Director's resolving an issue of fact. And I expressly rule that it is not within my province to pass upon the Director's evaluation of the record before him on questions of fact. In any event, I find that it has not been shown or established that the Director 's decision on these two objections is arbitrary , capricious, or obnoxious to Board policies or the provisions of the Act. General Armature, 89 NLRB 654, 657. Accordingly, I find that Respondent's attack upon the Director's conclusions in this respect is not well taken. Independent also filed three additional objections, numbered 1, 2, and 3, which related to issues not raised in any of Respondent's objections. Their text is set forth above, and need not be restated here. All three were found by the Regional Director to lack merit. Number I was found to be unmeritorious as a "purely speculative contention" that Respondent' s General Manager was replaced by Respondent to convince employees that they did not need a union. This finding is not arbitrary or capricious, and is based upon an evaluation of the record. Hence, this objection is not well taken and I so find. Independent's Objection 2 was found by the Director to constitute a postelection challenge. As such it cannot now be used as a vehicle to invalidate the election. N.L.R.B. v. A. J. Tower Co., 329 U.S. 324. Finally, Objection 3 complains that Independent's officers acted as observers for Papermakers at the election. Although he found this to be a fact, the Regional Director found that they did not conduct themselves improperly or otherwise improperly influenced the course of the election, and that the mere fact that they acted as observers for another union was proper under Shoreline Enterprises of America, 114 NLRB 716, 718-719, enforcement denied 262 F.2d 933 (C.A. 5). Accordingly, he overruled this objection . I find that the Regional Director' s finding is neither arbitrary nor capricious, that it is consonant with Board policies, and that it is not obnoxious to statutory enactments. N.L.R.B. v. Huntsville Mfg. Co., 203 F.2d 430, 434 (C.A. 5). Cf. General Electric Company, 173 NLRB No. 46, where the Board held that a union may lawfully select representatives of other unions (recognized by the same employer ) to sit at the bargaining table during negotiations with the Employer. Since I have found that the certificate issued to Papermakers is valid, it follows , and I find, that Respondent was thereby placed under a statutory onus to recognize and bargain with that labor organization. Included in the legislative duty imposed on Respondent is the obligation to furnish Papermakers, as majority representative of the employees in the unit involved, all relevant information requested by such union. It is not disputed , and I find , that on April 24, 1968, Papermakers requested Respondent to supply the former with information necessary and relevant for it to bargain intelligently. This information consists of (a) the names and dates of hire of all employees in the unit herein found to be appropriate, and (b) job classifications and hourly rates of pay for these employees . Respondent did not furnish this information. However, Papermakers was entitled to the same ; and I find that Respondent's failing to render it amounts to a refusal by Respondent to bargain collectively within the meaning of Section 8(a)(5) of the Act. F. W. Woolworth Co., 109 NLRB 196, enfd. 352 U.S. 938 ; Boston Herald-Traveler Corporation v. N.L.R.B., 223 F.2d 58 (C.A. 1). Finally, upon this branch of the case , I find that the following is an appropriate unit for the purposes of collective bargaining under Section 9 of the Act: All production and maintenance employees employed by Respondent at its Bolt Street, Lowell, Massachusetts, plant, excluding office clerical employees, plant clerical employees, designers, artists, truckdrivers, professional employees, guards, and supervisors as defined in the Act. B. As to the Checkoff of Dues on Behalf of the Independent Respondent and Independent executed on March 7, 1966, a contract covering the employees in the unit found above to be appropriate . In the absence of evidence or contention that it is invalid , I find that it is a valid contract. Shamrock Dairy, 119 NLRB 998, 1000-02; modified on other grounds, 124 NLRB 494; enfd. 280 F.2d 665 (C.A.D.C.); cert. denied 364 U.S. 892. This contract, which expired on March 7 , 1968, contained a union shop clause and a clause providing for checkoff of dues for those employees voluntarily authorizing the same. Nine employees signed such authorization cards in March or April 1967, for a period of 1 year . Each such authorization card contains a statement that it shall be automatically renewed and shall be irrevocable for successive periods of one (1) year each, or for the period of each succeeding applicable collective agreement between the employer and the [Independent], whichever shall be shorter , unless written notice to terminate is given not more than 20 and not less than 10 days prior to the end of one year or each applicable contract, whichever occurs sooner. None of the nine employees gave such notice. As a result Respondent deducted their dues and transmitted them to the Independent from, among other periods, March 7, 1968, to July 1, 1968. It is my opinion, and I find, that this action by Respondent does not contravene LOWELL CORRUGATED CONTAINER CORP. the Act, even though the contract between Respondent and the Independent expired on March 7, 1968. Initially it is well to mention that checkoff authorizations may be valid notwithstanding the absence of a union-security clause. See N.L.R.B. v. Penn Cork & Closures, Inc., 376 F.2d 52 (C.A. 2), cert. denied 389 U.S. 843. That case also holds that an employee's revocation of such authorization after a contract has expired, or a union-security clause has been rescinded under Section 9(e) (1) of the Act, must be honored by the Employer, and the failure to do so constitutes an unfair labor practice. To the same effect are Bedford Can Mfg. Corp., 162 NLRB No. 133, and Merchants Fast Motor Lines, 171 NLRB No. 177. But the foregoing cases stress the element of an employer's refusing to abide by a termination or revocation of a checkoff authorization executed by an employee as the necessary ingredient of an unfair labor practice. No cases have been cited, and I have been unable to find any, where the Board has held that it is improper for an employer to continue to honor an uncanceled, unabrogated, or unrevoked checkoff after the contract providing for it has expired but before the checkoff has terminated by its own terms. At least one court treats a checkoff as "a voluntary arrangement, in the nature of an assignment." In re Westmoreland Metal Mfg. Co., 69 LRRM 2536 (E.D. Pa.). Since no Board decisions have been cited to the contrary, it would seem that I am justified in expecting that the Board will approve a finding that a checkoff authorization which has not been revoked, abrogated, terminated, or canceled may be honored during its term by the Employer involved notwithstanding that the contract sanctioning the authorization has expired. At least three reasons favor this view: 1. Because the employee has not withdrawn his consent to withhold dues from his wages , no element of coercion or restraint on the employee is discernible whereby his wish or desire is frustrated. Thus the cases cited by the General Counsel are inapposite, for they find an element of compulsion on the employee in the Employer's refusal to honor a revocation of the employee's authorization to pay dues to a union to which he need not belong. Patently this is not the situation here. 2. The Employer is not unlawfully assisting the Union to which the dues are transmitted, for the dues are not extracted against the wishes of the employee. Cf. The Boeing Company, 173 NLRB No. 71. In such situations the employee, and not the Employer, has decided that he will continue to contribute financial support to a labor organization of his own choosing . I use the phrase "of his own choosing" because the employee is free to repudiate or revoke his authorization at any time after the contract expired. See N.L.R.B. v. Penn Cork & Closures, supra; Bedford Can, supra; and Merchants Fast Motor Lines, supra. It is therefore proper to find - and I do - that the Employer is serving as a conduit for the employee in transmitting the latter's dues to the Union involved. In re Westmoreland Metal Mfg. Co., 69 LRRM 2536 (E.D. Pa.). Hence the Employer is acting pursuant to the employee's instruction. Therefore, I find no assistance has been conducted by the employer to the union receiving the dues, for such union is a passive beneficiary thereof. 3. This result permits multiple or, in any event, dual unionism . Nothing in the Act frowns upon or interdicts membership in more than one union . In fact, it would seem that to some extent national policy permits membership in a union other than the one which an 173 employer must recognize. At least this is expressly endorsed by the Railway Labor Act. Since membership in the Independent does not affect the rights of Papermakers, which latter union the Employer here must recognize, even if Papermakers should succeed in obtaining a union shop clause requiring membership in it, I find that it is not incongruous to maintain membership in both of said unions simultaneously. Indeed it may well be an unfair labor practice for Respondent to fail to turn over dues to the Independent if such dues are voluntarily paid by the employee involved, for this would seem to be discouraging membership in the Independent. Upon this segment of the case the final question is whether the checkoffs under consideration survived the contract between the Independent and Respondent. It is my opinion, and I find, that said checkoffs continued in full force and effect at all times material, even though the contract between the Independent and Respondent ended on March 7, 1968. This is because the text of the authorization expressly provides that it "shall be automatically renewed . . . unless written notice to terminate is given" at a specified time. No such notice was given as far as the record reveals. Hence, these authorizations were automatically renewed. The period of renewal, according to the language of the authorization, is for 1 year "or for the period of each succeeding applicable collective agreement between [Respondent] and the [Independent], whichever shall be shorter." After March 7, 1968, however, no "succeeding applicable collective agreement" was in existence. Therefore, this limiting alternative did not become operative. Consequently, the other designated alternative determined the length of time for which the checkoff continued when it was automatically renewed, i.e., 1 year from March or April, 1968. The March or April, 1968, date represents the end of the year of the authorizations signed in March or April, 1967, and in evidence as General Counsel's Exhibit 4. Accordingly, I find that since the dues were validly deducted and lawfully transmitted to the Independent after February 8, 1968, Respondent has not violated the Act by such conduct. Hence, I shall recommend that paragraphs 13, 14, 16, 17, and the applicable portions of 18 of the complaint be dismissed. Nevertheless, as alleged in paragraph 14 of the complaint, I find that since February 8, 1968, Independent has had "minority status" and Papermakers has been the exclusive representative of Respondent's employees in the unit herein found to be appropriate. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent found to constitute unfair labor practices, as set forth in section IV, above, occurring in connection with the operations of the Respondent described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY As the Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that the National Labor Relations Board order it to cease and desist therefrom and that the Respondent take specific 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affirmative action, as set forth below , designed to effectuate the policies of the Act. Thus I shall recommend that the Respondent, upon request by the Papermakers, be required to bargain collectively with the latter and furnish to the latter certain necessary and relevant information if it is sought by Papermakers. I shall also recommend that the Board's Order provide that the Respondent shall post an appropriate notice , the text of which is recited in the attached Appendix. Respondent' s action in my opinion does not portray hostility to the Act. In fact the only way it can test the validity of the certification issued to Papermakers is by refusing to recognize or bargain with said union. Such right to question a certification is not only vouchsafed to the Respondent by Section 9(d) of the Act, but also by the due process clause of the Constitution . Patently the mere exercise of a statutory or constitutional right to defend against a claim prosecuted under the Act cannot be thought to be inimical to the policies of the Act, and I so find. It follows that, absent any evidence that the Respondent's conduct evinces a desire to thwart or impede the purposes of the Act, an Order is proper which is limited to enjoining only the specific activities found to contravene the Act. See N.L.R.B. v. Simplex Time Recorder Company, 401 F.2d 546 (C.A. 1). In other words, the remedy adopted should be commensurate with the violations found; and relief broader in scope is not warranted on the record unfolded in this case. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Papermakers and the Independent each is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. A unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act consists of: All production and maintenance employees employed by the Respondent at its Bolt Street, Lowell, Massachusetts, plant, excluding office clerical employees, plant clerical employees , designers, artists, truckdrivers, professional employees, guards, and supervisors as defined in the Act. 4. On or about April 3, 1968, and at all material times thereafter, Papermakers represented a majority, and has been the exclusive bargaining representative , of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act; and the Respondent was on that date, and has been since, legally obligated to recognize and bargain with Papermakers as such. 5. The Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, by (a) Refusing to recognize and bargain collectively with Papermakers on and after May 1, 1968, with regard to the employees in said appropriate unit; and (b) Refusing on and since May 1, 1968, to supply Papermakers with information , necessary and relevant for it to bargain intelligently for all the employees in said appropriate unit, concerning job classifications, rates of pay, and names and dates of hire of said employees. 6. The foregoing unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. 7. The Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Board issue an Order requiring that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to recognize and bargain with Papermakers as the exclusive bargaining representative of all the employees in the above-described appropriate unit. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, recognize and bargain with Papermakers as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such an understanding in a written, signed agreement. (b) Upon request, supply to Papermakers information necessary and relevant for it to bargain intelligently, including names and dates of hire of all employees in said appropriate unit, and job classifications and hourly rates of pay for said employees. (c) Post at its plant at Lowell, Massachusetts, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 1 , after being signed by a duly authorized representative of Respondent, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.' IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. '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 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." '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 , of the steps which 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 NOT refuse to bargain collectively with LOWELL CORRUGATED CONTAINER CORP. United Papermakers and Paperworkers , AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a written , signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our Bolt Street, Lowell, Massachusetts, plant, excluding office clerical employees, plant clerical employees, designers, artists, truckdrivers, professional employees, guards, and supervisors as defined in the Act. WE WILL, upon request, furnish to the above-named 175 Union information necessary and relevant for it to bargain intelligently. Dated By LOWELL CORRUGATED CONTAINER CORPORATION (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 20th Floor, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3353.