Fremont Newspaper, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fremont Newspapers, Inc. and Omaha Typographical Union No. 190, AFL-CIO, and Stereotypers and Electrotypers Local No. 24, AFL-CIO.' Case 17-CA-3660 October 28, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On March 25, 1969, Trial Examiner Alvin Lieberman issued his Decision in this proceeding, finding that 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 He also found that Respondent had not engaged in certain other unfair labor practices and recommended that the allegations of the complaint pertaining thereto be dismissed Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting arguments. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and supporting arguments, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith The following facts are not in dispute. The Unions won an election in August 1967 by a vote of 16 to 1, and were jointly certified. The parties bargained until the following August, but reached no agreement. Apparently disenchanted because of the delay, 9 of 17 employees signed a petition indicating they desired a decertification election. The moving force behind the petition, employee Leckenby, informed Respondent that a majority supported the petition, and Respondent thereafter stated that it could not sign any binding agreement with the Unions, at least while this decertification proceeding was pending, as it alleged it believed the Unions had lost their majority. As the Trial Examiner found, before the decertification movement began, superintendent Sollenberger had told employee Sass that the Unions had had a year, and now Respondent's president had said he "would like the year to show what he could do." Sollenberger coupled this with the statement that journeymen could get $3 30 per 'Herein referred to as the Unions hour. Journeymen at the time were receiving only $2.25 per hour, and the parties had not negotiated as to wages. About a week later, Sollenberger asked employee Neilson why the employees "couldn't get out from under the Omaha local and ... form their own Union." He this time suggested $3 50 per hour "would be a fair wage." The Trial Examiner found these remarks violated Section 8(a)(1) of the Act, and we agree The Trial Examiner found, however, that Respondent did not unlawfully refuse to bargain because it had been informed that a majority of its employees supported the decertification petition, and, regardless of the unlawfulness of the remarks to employees Neilson and Saas, they testified that they neither told anyone of the remarks, nor were in fact influenced by them We do not agree. The Trial Examiner finds that, once a union has established its majority through certification, as here, its majority is presumed to continue unless rebutted, and that the presumption may be rebutted if an employer can show by objective facts that there is some reasonable ground for believing the Union no longer enjoys majority representative status He further finds that the filing of a decertification petition alone cannot establish such grounds, but a showing that the petition was supported by a majority of the unit may be enough. Finally, he correctly states that such a showing must be made in an atmosphere free of employer conduct aimed at causing disaffection We disagree with his finding that the showing here was made in such a free atmosphere. Contrary to the Trial Examiner, we find that in the circumstances of this case it is immaterial that employees Sass and Neilson did not relate to other employees the remarks made to them by Sollenberger, or that the remarks did not in fact cause their defection from the Union. Sollenberger is a supervisor, and Respondent is both responsible for, and charged with knowledge of, his unlawful remarks. At least the Sass incident took place before the decertification movement began, and before Respondent was told that a petition was being filed; When informed of the petition, Respondent was not told who had signed it. Respondent at that point could not assume that its own unlawful action, which was designed to, or at least would tend to discourage union adherence, had nothing to do with the petition, or that Sass had not been influenced, had not signed the petition, or had not related the unlawful remarks to anyone that had signed it. Indeed, if only one -employee had been improperly influenced to sign the petition, it would have been supported by less than an uncoerced !majority Respondent refused to bargain with the certified bargaining representatives of its employees,' while at the same time it was attempting to influence its 'While Respondent offered to conunue meeting with the Union, it 179 NLRB No. 63 FREMONT NEWSPAPERS, INC. employees to repudiate the Unions We find that Respondent here did not rebut the presumption flowing from the Unions' certification, and as it engaged in independent unfair labor practices aimed at causing disaffection, and tending to preclude the holding of a fair election, we find that its refusal to bargain violated Section 8(a)(5) of the Act, and that the policies of the Act will be effectuated by the imposition of a bargaining order as a remedy for such conduct.' 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, as modified below, and hereby orders that the Respondent, Fremont Newspapers, Inc., Fremont, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified I Add, as paragraph 1(b), the following, relettering present paragraph (b) as (c): (b) Refusing to bargain collectively with the above-named Unions as the exclusive representative of all the employees in the following appropriate unit. All mechanical employees at the Fremont, Nebraska, plant of Fremont Newspapers, Inc., including composing room and press room employees, but excluding office-clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. 2. Add, as paragraph 2(a), the following, sequentially relettering the subsequent paragraphs. "(a) Offer to, and, upon request, bargain collectively with Omaha Typographical Union No 190, AFL-CIO, and Stereotypers and Electrotypers Local No. 24, AFL-CIO, as the bargaining representatives of the employees in the appropriate unit 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 signed agreement." 3. In the second sentence of the second indented paragraph of the Notice, delete the words "or do anything else," 4. Add, immediately before the last indented paragraph in the Notice, the following two paragraphs: WE WILL NOT refuse to bargain collectively with the above-named Unions as the exclusive representatives of all the employees in the following appropriate unit: admittedly refused to reduce any understanding to writing 'While the Supreme Court, in N L R B v Gissel Packing Company, 395 U S 575, did not deal with loss of majority situations , we are satisfied that its rationale concerning the propriety of issuing a bargaining order supports our decision in this case 391 All mechanical employees at the Fremont, Nebraska, plant of Fremont Newspapers, Inc., including composing room and press room employees, but excluding office-clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. WE WILL offer to, and, upon request, will bargain collectively with the above-named Unions as the bargaining representatives of the employees in the appropriate unit 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 signed agreement. MEMBER ZAGORIA, dissenting: I would not find 8(a)(5) here. Respondent bargained with the Union for almost a year. Thirty bargaining sessions were held, and there is no allegation that Respondent failed to bargain in good faith. Thereafter, at the expiration of the certification year, 9 out of 17 employees in the unit signed a decertification petition, and Respondent was informed that "a majority" supported the petition. Respondent thereupon advised the Union it had reason to believe it had lost its majority and that, while Respondent was willing to meet, it would not make any binding agreements pending the outcome of the decertification proceeding. The majority finds 8(a)(5) on grounds that unlawful conversations held by the Respondent with two employees prior to the filing of the decertification petition demonstrate that Respondent's refusal to bargain was not "in good faith," and therefore justify the issuance of a bargaining order. I cannot agree. The situation would be otherwise if it could be said that Respondent's two violations of Section 8(a)(1) contributed to the filing of the decertification petition. Here, however, it is uncontroverted, and the Trial Examiner finds, that the two 8(a)(1) violations occurred in private talks, were not overheard, and were not communicated to other employees. The two union adherents who were the recipients of the 8(a)(1) statements were not among the nine who signed the decertification petition; nor did they, after the conversations, defect from the Union. In these circumstances, I do not believe Respondent's 8(a)(1) violations may be said to have tainted the substantial, objective evidence on which Respondent relied, and I see no justification for avoiding the question concerning representation raised by the decertification petition. Like the Trial Examiner, I would dismiss the Section 8(a)(5) portion of the complaint. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner: The trial in this proceeding, with all parties represented, was held before me in Fremont, Nebraska, on December 10 and 11, 1968, 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon a complaint of the General Counsel' dated October 22, 1968,2 and Respondent's answer. In general, the issues litigated were whether Respondent violated Section 8(a)(l) and (5) of the National Labor Relations Act, as amended (herein called the Act) Particularly, the questions for decision are as follows 1. Did Respondent engage in independent violations of Section 8(a)(1) of the Act by encouraging employees to repudiate Omaha Typographical Union No 190, AFL-CIO, and Stereotypers and Electrotypers Local No. 24, AFL-CIO (herein jointly called the Union and separately referred to as OTU and Stereotypers Union, respectively) and to form an independent labor organization`)' 2. Has Respondent, since the latter part of August 1968, violated Section 8(a)(5) and (1) of the Act by its unwillingness to enter into a collective agreement with the Union and by questioning the Union's majority notwithstanding its having been certified on August 7, 1967, as the exclusive bargaining representative of employees of Respondent9 Upon the entire record,' upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted by the parties, I make the following: FINDINGS OF FACTS 1. JURISDICTION Respondent , a Nebraska corporation whose principal place of business is located in Fremont , Nebraska, is engaged in the publication of a daily newspaper. Respondent holds membership in, and subscribes to, interstate news services , publishes nationally syndicated features , advertises nationally sold products, and its annual gross volume of business exceeds $200,000 Accordingly , I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (herein called the Board) is warranted . Belleville Employing Printers, 122 NLRB 350, 351-352 II. THE LABOR ORGANIZATION INVOLVED OTU and Stereotypers Union are labor organizations within the meaning of the Act 'The complaint was issued on a charge and an amended charge filed respectively on August 29 and October 8, 1968, by Omaha Typographical Union No 190, AFL-CIO, and Stereotypers and Electrotypers Local No 24, AFL-CIO, as joint Charging Parties 'Unless otherwise noted, all dates subsequently mentioned in this Decision without indicating their year fall within 1968 'On Respondent's motion, made at the conclusion of General Counsel's case-in-chief, par 7(a) of the complaint, which alleges that certain additional conduct engaged in by Respondent also violated Sec 8(a)(1) of the Act, was dismissed for the reason that the General Counsel offered no evidence to substantiate that paragraph 'Issued simultaneously is a separate order correcting the stenographic transcript of this proceeding in several respects 'Respondent's motion to dismiss the complaint made at the close of the trial, upon which decision was reserved , is disposed of in accordance with the findings and conclusions set forth in this Decision Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with events which occurred in August 1968 after Respondent had bargained with the Union for more than a year following its certification These include, the complaint alleges, Respondent's encouragement of employees to repudiate the Union, and to form an independent labor organization, Respondent's suspension of negotiations with the Union because of the pendency of a decertification petition; and its refusal for the same reason to "enter into any final . . or binding tentative agreements" with the Union The General Counsel and the Union contend' that by this conduct Respondent violated Section 8(a)(1) and (5) of the Act.7 Respondent, for its part, argues that it believed in good faith that the Union had lost its majority after the expiration of the certification year, that it had sufficient and innocent grounds for this belief, and that therefore it was justified in breaking off negotiations Insofar as the other allegations of the complaint are concerned, Respondent denies that it encouraged employees to repudiate the Union or to form an independent labor organization Alternatively, Respondent suggests, on brief, that if it be found that it did violate Section 8(a)(1) of the Act in this manner the conduct involved "had no effect on the [U]nion's majority status" and was "so minimal as not to justify Board action of any kind " B Preliminary Facts 1 The Union's certification On August 7, 1967, after an election at which the Union prevailed by a vote of 16 to 1, OTU and, Stereotypers Union were jointly certified as the exclusive collective-bargaining representative of Respondent's employees in a unit described in the certificate as: All mechanical employees . . . including composing room and press room employees, but EXCLUDING office-clerical employees; professional employees, guards, and supervisors as defined in the Act, and all other employees At all times relevant to this proceeding there were 17 people in this unit 'As the contentions of the General Counsel and the Union are in large part similar, unless otherwise indicated they will be referred to hereinafter as the General Counsel's contentions 'These secs provide Sec 81(a) It shall be an unfair labor practice for an employer - (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) Insofar as pertinent, Secs 7 and 9(a) are as follows Sec 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations , 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 or protection Sec 9 (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes , shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay , wages, hours of employment , or other conditions of employment FREMONT NEWSPAPERS, INC 393 From about October 1967 and continuing through July 1968 the Union and Respondent bargained with each other for a collective agreement Notwithstanding some 30 negotiating sessions during this period the parties did not arrive at a contract 8 At the last meeting in July Respondent and the Union agreed to meet again on August 27. 2. The defections from the Union Until August 20 Thomas Leckenby, a compositor in Respondent's employ, was OTU's chapel chairman' in Respondent's plant, having been elected to that position by the employees in the bargaining unit. By mid-August Leckenby, apparently, had become disenchanted with the Union because it had not been able to obtain a wage increase Accordingly, Leckenby spoke to several employees about getting "rid of the union," forming their "own union," and "dealing [themselves] with the company "10 To this end Leckenby invited employees represented by the Union to attend a meeting on August 20. At this meeting, which was not attended by any representative of Respondent, Leckenby discussed with the assembled employees the filing of a decertification petition and the formation of their own union . He also told them, as Carlson, who was in attendance, related, that he thought they "could get three thirty an hour if [they] dealt with the company [themselves] instead of the union "'1 Leckenby's proposals did not meet with unanimous approval. As Carlson further testified, a "big argument developed" and Leckenby resigned as chapel chairman Following this, Duane Neilson, who did not agree with the position taken by Leckenby, was elected to that office. On August 21, the day after the employees' meeting, Leckenby wrote a letter," addressed to the Board's Regional Director in Kansas City, Missouri, which, in relevant part, stated that its subscribers, members of "the bargaining unit, feel we no longer need representation of the union . . and desire a decertification of the former election " This letter was on the day of its preparation by Leckenby signed by 9 of the 17 employees in the bargaining unit Also on August 21, Leckenby mailed the signed letter, and telegraphed a conformed copy, to the Board's Regional Office in Kansas City On the same day or the following day, August 22, Leckenby showed Richard Schuster, Respondent's president and publisher, an unsigned copy of the informal decertification petition Upon Schuster's suggestion that Leckenby endorse on the document words to the effect that it had been shown to him and that the original had been sent to its addressee, Leckenby, in Schuster's presence, made the following notation at the foot of the paper 'The complaint does not allege , nor does the General Counsel contend, that Respondent did not bargain in good faith through July 1968 'Charles Gridley, president of OTU, described a chapel chairman as being a "sort of a shop steward " "The quotes in the text are taken from testimony on this point given by Karen Carlson and Duane Neilson, linotype operators employed by respondent "At the time the general wage rate was $2 25 an hour "This document, which is in evidence as G C Exh 13, has been variously referred to by witnesses and counsel as a petition and a decertification petition To distinguish it from the formal decertification petition , which, as will appear below, was later filed by Leckenby, I will refer to it, when necessary to do so in that manner , as an informal petition or informal decertification petition Presented to Pub Schuster Aug 21, 1968 4 00 P M. This is to certify that the original of this letter has been sent to the National Labor Relations Board in Kansas City, signed by a majority of the Bargaining Unit members Thomas Leckenby" Leckenby then, again, showed the informal petition to Schuster. While sending the telegraphic copy of the informal decertification petition to the Board's Kansas City Office Leckenby also sent a telegram to OTU announcing the resignation from that organization of five employees in the bargaining unit, all of whom had signed the informal petition Among those whose resignations were thus transmitted to OTU were Leckenby and Karen Carlson, a linotype operator in Respondent's employ." Several days later, on August 28, Carlson, Leckenby, and Ray Brown, a representative of OTU, conferred at Leckenby's house concerning the five resignations. At this meeting "facts" presented by Brown and a "statement" made by Leckenby caused Carlson to say that she had "changed [her] mind" about resigning from OTU.15 3. The formal decertification petition On August 27 the Board's Regional Office in Kansas City placed on file a formal decertification petition signed by Leckenby. This petition was dismissed on October 11, because of the issuance of the instant complaint. The dismissal of the petition was affirmed by the Board on November 21 C Facts Concerning Respondent 's Alleged Unfair Labor Practices 1 The alleged independent violations of Section 8(a)(1) of the Act As noted in the introductory portion of this Decision the complaint alleges that Respondent violated Section 8(a)(1) of the Act by encouraging employees to repudiate the Union and to form an independent labor organization The complaint also alleges that these violations were committed by respondent "acting by and through" its mechanical superintendent, Arlen Sollenberger, described in the complaint as one of Respondent's "supervisors and agents."16 "This copy of the informal decertification petition, endorsed as set forth in the text, is in evidence as Resp Exh 2 "Carlson testified that "a little while after [she] had signed" the informal decertification petition Leckenby talked to her about authorizing her "name to be on a telegram resigning from the union " Carlson further testified, in this connection , that Leckenby told her that "Schuster [Respondent's president] said we had to send [the resignation telegram] within the next hour " Upon Respondent's motion to strike this testimony as hearsay , the General Counsel and the Union agreed that it was, indeed, hearsay They argued, however, that it should be received, not for the truth of what Leckenby said, but "as a verbal act" on his part On this basis Respondent's motion to strike was denied "My findings concerning this conference , except with respect to its date, are based upon , and the quotations are taken from, testimony given by Carlson Leckenby also related that he , Brown, and Carlson met at his home A comparison of Leckenby's testimony with that given by Carlson shows that both were talking about the same meeting Although Carlson appeared uncertain as to its date , Leckenby readily accepted a suggestion that the conference occurred on August 28 Accordingly, Leckenby's testimony furnishes the basis for my finding that the meeting took place on that date "As mechanical superintendent Sollenberger is in charge of 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 15, following a staff meeting, Sollenberger and Loren Sass, employed by Respondent as a stereotyper and a member of the Stereotypers Union, had a lengthy talk During the course of this conversation Sollenberger told Sass that Schuster, Respondent's president, stated that the Union had had a year and "now [Schuster] would like the year to show what he could do " Sollenberger also told Sass that if the employees "backed out of the Union" anyone "who was a competent journeyman . would get three thirty an hour,"" and that Respondent "would be easier to deal with and go further if [it] was dealing with the employees " About a week later, Sollenberger, Respondent's mechanical superintendent, spoke with another employee, Duane Neilson, a linotype operator in Respondent's composing room.18 This conversation, like Sollenberger's earlier one with Sass, was also lengthy Sollenberger began by reprimanding Neilson for spending too much time in idle gossip. They then spoke about the Union and wages During this phase of their discussion Sollenberger "wanted to know" why the composing room employees, excluding the stereotypers "couldn't get out from under the Omaha local and . form [their] own Union." Having said that, Sollenberger asked "why we couldn't negotiate wages first and . get away from all that other stuff that was taking so long" This question was followed by Sollenberger's suggestion that $3 50 an hour "would be a fair wage."" Sollenberger's respective conversations with Sass and Neilson were had out of earshot of other employees Neither Sass nor Neilson disclosed the content of these conversations to anyone Neither withdrew his support from the Union as a result of what Sollenberger said to him, nor was Sass, whose conversation with Sollenberger preceded the preparation of the informal decertification Respondent's composing and press-stereo rooms , which , together comprise Respondent's mechanical department Notwithstanding Sollenberger's admitted supervisory status, Respondent argues that because, as the evidence shows, he had been expressly instructed by Respondent's president not to discuss wages , working conditions, or matters which were the subject of negotiation between Respondent and the Union, respondent is not responsible for any statement Sollenberger may have made in this area In view of the wide range of Sollenberger's authority in the mechanical department, as the evidence also demonstrates , and taking into account the principles of agency law set forth in Sunset Line and Twine Company, 79 NLRB 1487, 1508-09, and Perry Norvell Company, 80 NLRB 225, 243-244, this argument must be rejected Accordingly, Respondent will be held liable for Sollenberger's conduct in contravention of the Act "As stated in In II above, at this time the general wage rate in Respondent's plant was $2 25 an hour "During this conversation Neilson informed Sollenberger of his recent election as OTU's chapel chairman "My findings as to these conversations are based upon , and the quotations are taken from, testimony given by Sass and Neilson Sollenberger, in the main , did not deny the statements they attributed to him Instead, he repeatedly said that he did not recall making them Recognizing this, Respondent argues, on brief, that Sollenberger's "do not recall" answers should be construed as denials This argument , however, flies in the face of the fact that Sollenberger made similar answers to such innocuous questions as whether there was a staff meeting on August 15, the time of Neilson's coffee break, when, within the week immediately before the trial, he visited the office of Respondent's lawyer, and whether he signed a statement there Having listened to this answer time after time at the trial, I limited Sollenberger's cross-examination by the charging party for the purpose of " testing his recallability " In doing so, I observed that it had been sufficiently demonstrated that Sollenberger had "a dismally poor memory " After reading the record I am still of that opinion Accordingly , I cannot accept Respondent's contention that Sollenberger' s inability to remember should be equated to negative answers to questions to which Sollenberger made such a response petition, moved by it to sign the petition 2 The alleged violation of Section 8 (a)(5) of the Act As earlier set forth, at the last negotiating session in July 1968, Respondent and the Union agreed to meet again on August 27. In the interim, however, as already recounted, a majority of the employees in the bargaining unit signed the informal decertification petition prepared by Leckenby, who, until August 20, had been OTU's chapel chairman in Respondent's plant. As also earlier set forth, Leckenby brought this fact to the attention of Schuster, Respondent's president, on about August 22 The next day Schuster sent telegrams to OTU and the Stereotypers Union informing each of what he had learned from Leckenby Schuster further stated in these telegrams that "under the circumstances it is our belief that further meetings between the parties must be suspended until the situation has been clarified." Apparently, upon receipt of his telegram Chris Anderson, president of the Stereotypers Union, remonstrated with Schuster, Respondent's president, over the cancellation of the August 27 meeting and insisted that it be held as scheduled. Accordingly, Schuster agreed to meet but again stated, in additional telegrams to OTU and the Stereotypers Union, that he "still believe[d] that the question of [their] majority representation should be clarified." 2° The Union and Respondent met on August 27, but, as will be seen, they did not bargain. Instead, toward the beginning of the meeting the following letter, signed by Schuster, was handed to Gridley, president of OTU August 27, 1968 Omaha Typographical Union Local No. 190 c/o Charles Gridley, President 422 Keeline Building Omaha, Nebraska Omaha Sterotypers [sic] and Electrotypers Union Local No 24 c/o Chris Andersen 4502 Madison Street Omaha, Nebraska Gentlemen This will advise you that we have now been informed of the filing of a petition for decertification of your unions as representatives of the bargaining unit of the mechanical employees in the Fremont Tribune plant. We remain ready and willing to meet with your representatives but must advise that while the decertification petition is pending and until it is disposed of we consider that your majority status is in doubt and further consider that we have been presented with strong evidence that you do not have a majority status, and therefore we cannot during these meetings enter into any final agreements or binding tentative agreements. Yours very truly, FREMONT NEWSPAPERS INC. By Richard J. Schuster President The position set forth in its letter21 was maintained by "The telegrams mentioned in the text are in evidence as G C Exhs 7 and 8 "The decertification petition mentioned in Respondent's letter is the FREMONT NEWSPAPERS, INC. 395 Respondent throughout the meeting Because of this it was ultimately agreed by the participants that further negotiations would be fruitless The Union has not since August 27 requested that Respondent resume negotiations and there have been no further meetings between the Union and respondent. D. Contentions and Concluding Findings Concerning Respondent's Alleged Unfair Labor Practices Respondent claims that its position respecting further bargaining with the Union, as expressed in its letter of August 27, more than a year after the Union's certification, was justified by its doubt, assertedly entertained in good faith based upon sufficient grounds, that the Union continued to represent a majority of the employees in the unit involved. Insofar as its alleged violation of Section 8(a)(l) of the Act is concerned, Respondent's main contention is that it did not engage in the acts set forth in the complaint. By way of avoidance, Respondent argues, in its brief, that should a determination be made that it did contravene Section 8(a)(1) its conduct "had no effect on the [Union's] majority status " Connecting the respective conversations of Sollenberger, Respondent's mechanical superintendent, with Sass and Neilson, Respondent's employees, which the General Counsel characterizes, on brief, as "flagrant interference," to Leckenby's conduct regarding the decertification petitions, concerning which, he postulates, Respondent had prior knowledge, the General Counsel argues that "there is no basis for a good faith doubt of the [Union's] continuing majority " Especially is this so, the General Counsel continues, "since the election of the union was by a decisive 16 to 1 margin" and "only five resignations from the Union" were shown In addition, the Union contends that Respondent is foreclosed from claiming a good-faith doubt because, as it states in its brief, Respondent "was actually engaged in destroying the [Union's] majority position "22 "Once a union has established its majority through certification, as here, its majority is presumed to continue [beyond the certification year] unless rebutted. But, an employer may without violating the Act withhold further bargaining and insist that a union reestablish its majority if it can establish a good-faith doubt of continued majority Such a showing requires more than a mere assertion of doubt, it must be supported by objective considerations. It must be shown by objective facts that there is some reasonable ground for believing the union has lost its majority. This showing must, of course, be made in an atmosphere free of employer conduct aimed at causing disaffection " Firestone Synthetic Rubber & Latex Company, etc, 173 NLRB No. 179. Obviously, the presumption of continued majority upon the expiration of the certification year "may be rebutted if the employer affirmatively establishes . . that at the time of the refusal [to bargain] the union in fact no longer formal petition, which, it will be remembered, was placed on file in the Board's Regional Office on August 27, the day of the meeting under discussion it was dismissed on October I 1 "Relying on Brooks v N L R B, 348 U S 96, the Union argues, also, that in view of its certification if Respondent had doubts about its majority, it should have petitioned the Board for relief and continued its bargaining until the Board acted Clearly this contention is poorly taken Brooks , as is readily apparent, has reference to the certification year and not to a claimed doubt of majority which, as here , arises after the expiration of that year enjoyed majority representative status "21 However, where, as here, a good-faith doubt of continued majority is claimed, the fact of majority or its lack is immaterial; what is of prime importance in such a situation is whether the doubt is actually entertained in good faith. If that is established, a refusal to bargain for that reason is not a violation of Section 8(a)(5) of the Act even if at the time of the refusal the union, in fact, represented a majority of the employees involved. Celanese Corporation of America, 95 NLRB 664, 671-675 Accordingly, the inquiry here must be centered on the bona fides of Respondent's doubt of the Union's majority This issue, the Board stated in Celanese, "cannot be resolved by resort to any simple formula." The Board, however, has set up guideposts to be followed in reaching a decision. As summarized in Firestone, they are- (1) a showing "by objective facts that there is some reasonable ground for believing that the union has lost its majority", and (2) such a "showing . must be made in an atmosphere free of employer conduct aimed at causing disaffection." As to the first, Respondent's position is stated in the letter it handed to the Union's representatives on August 27. In that letter Respondent indicated that its doubt of the Union's majority was based on the filing of the decertification petition and its having been "presented with strong evidence" that the Union did "not have a majority status " While it may be that the decertification petition alone may not have furnished Respondent with a sufficiently reasonable basis upon which to question the Union's majority,24 Respondent did not rely on the petition alone There was also the information it received on about August 22 from Leckenby, one of Respondent's compositors, that a majority of the employees in the unit had signed the informal decertification petition which he had prepared and sent to the Board's Regional Office in Kansas City Even if the information Respondent received from Leckenby on about August 22 had been false, respondent, it seems to me, could have acted on the assumption that it was true in view of Leckenby's having been, until August 20, only 2 days earlier, OTU's chapel chairman. Leckenby was thus in a position to know the sentiments of Respondent's employees insofar as the Union was concerned 25 But Leckenby did not lie. Nine of the seventeen employees in the unit, a majority, had signed the informal petition The information Respondent received from Leckenby was, indeed, "strong evidence" of an objective nature that the Union no longer represented a majority of the employees, and I so find. I also find, as the Board did under somewhat similar circumstances in Dixie Gas, Inc , 151 NLRB 1257, 1259, that the information Respondent had received from Leckenby furnished it with "reasonable grounds for questioning the Union's continued majority status " It seems appropriate to discuss here a contention made by the General Counsel which relates to one of the foregoing findings Pointing to two facts, namely, that there were only five resignations from the Union, and that "Terrell Machine Company . 173 NLRB No 230 "Wabana. Inc, 146 NLRB 1162, 1171 "As was stated in Stoner Rubber Company, Inc. 123 NLRB 1440, 1445, "proof of majority is peculiarly within the special competence of the union . An employer can hardly prove that a union no longer represents a majority since he does not have access to the union's membership lists and direct interrogation of employees would probably be unlawful as well as of doubious validity " 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was elected collective-bargaining representative by a 16 to I margin , the General Counsel argues , in his brief, that the information received by Respondent from Leckenby should not be "considered [as a sufficiently objective] basis for a good faith doubt of the continuance of [the Union's] majority " What the General Counsel is saying is that the evidence does not show that on August 27, the day on which Respondent refused to bargain further with the Union, it did not actually represent a majority of the employees in the unit and that for this reason Respondent's claim of good-faith doubt should be rejected . The informal decertification petition having been signed by Karen Carlson and 8 other employees in the unit , whose total complement was 17, and Carlson ' s resignation from the Union not having been withdrawn until August 28, the factual foundation for the General Counsel' s argument is, at least , doubtful Be that as it may, however , the short answer to the General Counsel' s contention is, as Celanese26 teaches , that whether or not the Union represented a majority of the employees on the day in question is immaterial. The remaining question is whether the foregoing showing was "made in an atmosphere free of employer conduct aimed at causing disaffection ." I conclude that it was No probative evidence was adduced to establish that Respondent had any part in the preparation , signing, or transmission to the Board 's Regional Office in Kansas City of the decertification petitions From conception to filing both were creatures of Leckenby, Respondent's employee, and, until August 20, OTU's chapel chairman. There is, likewise, no probative evidence to show that the five employees who resigned from OTU on about August 21 were induced or encouraged to do so by Respondent.27 The final matter for consideration , in this regard, is the effect of the separate conversations had by Sollenberger, Respondent' s mechanical superintendent , with Sass and Neilson , employees in the bargaining unit I conclude that during their course Section 8(a)(1) of the Act was violated 28 I also conclude , however, that these violations were not so widespread as to taint Respondent's claim of good-faith doubt as to the Union's continued majority. "While unfair labor practices committed at or about the time of an employer' s refusal to bargain often demonstrates the bad faith of [its ] position , not every act of misconduct necessarily vitiates [its] good faith." A determination concerning an employer 's good or bad faith in questioning a union's majority "requires an evaluation of the facts of each case ," including the extensiveness of the violations involved . Hammond & Irving, Incorporated, 154 NLRB 1071, 1073. 26Celanese Corporation ofAmerica, 95 NLRB 664, 671-675 "As set forth in fn 14, above, hearsay testimony was given by Carlson, one of the employees in the unit, that Schuster, Respondent's president, had said to Leckenby that the resignation telegram had to be sent "within the next hour " However, no finding can be based on this testimony because of its hearsay nature N L R B v Amalgamated Meat Cutters, etc , 202 F 2d 671, 673 (C A 9) "I have found, it will be recalled, that Sollenberger told Sass that if the employees "backed out of the union" respondent "would be easier to deal with," and "would [pay] three thirty an hour " I have also found that Sollenberger suggested that Neilson "get out from under" OTU, and form an independent union In his conversation with Neilson, Sollenberger suggested, also, that $3.50 an hour "would be a fair wage " It is well settled that an employer who thus encourages employees to repudiate a labor organization which they have freely chosen to represent them violates Sec 8(a)(1) of the Act See, e g , Pembeck Oil Corporation , 165 NLRB No 51, enfd in this respect 404 F 2d 105 (C A 2) Respondent's violations of Section 8(a)(1) of the Act occurred in private talks between Sollenberger, Respondent's mechanical superintendent, and only two of Respondent's employees These conversations were held out of earshot of the other employees in the unit The employees involved did not disclose to others what Sollenberger told them Finally, and while in itself unimportant, but nevertheless a factor in considering Respondent's conduct, the employees to whom Sollenberger spoke did not defect from the Union In my opinion the evidence summarized above does not furnish an adequate basis for a finding that Respondent's violations of Section 8(a)(1) were so extensive as to vitiate its claimed good faith in questioning the Union's majority. Nor does it warrant a finding that the violations beclouded Respondent's showing of its good-faith doubt with "an atmosphere . . of employer conduct aimed at causing disaffection" toward the Union. Upon the entire record therefore, I find that Respondent acted in good faith when it questioned the Union's majority status on August 27 Accordingly, I conclude that Respondent did not violate Section 8(a)(5) or (1) of the Act by refusing to bargain further with the Union I will, therefore, recommend that paragraph 10 and so much of paragraph 9 of the complaint which relates to paragraph 8 be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship 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 REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act my Recommended Order will direct Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act In this regard, I have duly considered Respondent's contention, set forth in its brief, that any violations of Section 8(a)(1) which it may be found to have committed "were so minimal as not to justify Board action of any kind " While Respondent's unfair labor practices were not widespread, a factor to be considered in connection with the breadth of the order I shall recommend, it can hardly be said, taking into account their nature, that they were too "minimal" to warrant the entry of a remedial order. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. OTU and Stereotypers Union are labor organizations within the meaning of Section 2(5) of the Act. 3 By encouraging employees to repudiate the Union Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. FREMONT NEWSPAPERS, INC. 4 Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. The unfair labor practices engaged in by Respondent, as set forth in Conclusion of Law 3, above, affect commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this case, I hereby issue the following RECOMMENDED ORDER Fremont Newspapers , Inc , its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Causing, inducing , encouraging, or requesting employees to repudiate Omaha Typographical Union No 190, AFL-CIO, and Stereotypers and Electrotypers Local No 24, AFL-CIO, or any other labor organization, by promising benefits to employees , suggesting that they form an independent labor organization , suggesting that Respondent would be easier to deal with if they withdrew from any of said labor organizations, or in any other manner (b) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended , or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found , will effectuate the policies of the National Labor Relations Act, as amended. (a) Post at its premises copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (b) Notify said Regional Director, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.]" IT IS FURTHER ORDERED that paragraph 10 and so much of paragraph 9 of the complaint which relates to paragraph 8, thereof, as well as such other paragraphs of the complaint which allege unfair labor practices not specifically found herein be , and the same hereby are, dismissed. "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 " "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 397 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 After a trial in which both sides had an opportunity to present their evidence , it has been found that we violated the law by committing unfair labor practices . Accordingly, we post this notice and we will keep the promises that we make in this notice WE WILL NOT in any way cause, induce, urge, encourage , or request you to repudiate , withdraw from, or resign from Omaha Typographical Union No 190, AFL-CIO, or Stereotypers and Electrotypers Local No 24, AFL-CIO. WE WILL NOT raise your wages, or give you any benefits which you do not now have, or do anything else, and WE WILL NOT promise to do any of these things, or to do anything else to cause , induce , urge, or encourage you to repudiate , withdraw from or resign from Omaha Typographical Union No. 190 , AFL-CIO, or Stereotypers and Electrotypers Local No 24, AFL-CIO WE WILL NOT in any way cause, induce, urge, encourage, or request you to form your own union or to deal with us without any union. WE WILL NOT raise your wages, or give you any benefits which you do not now have , or do anything else, or promise to do any of these things , or to do anything else to cause, induce , urge, or encourage you to form your own union or to deal with us without any union. WE WILL NOT in any similar way interfere with, restrain , or coerce you in the exercise of any rights guaranteed to you by the National Labor Relations Act. In this connection , WE WILL respect your rights to self-organization, to form, join, or assist any union, to bargain collectively through any union or representative of your choice as to wages, hours of work, and any other term or condition of employment You also have the right, which WE WILL also respect , to refrain from doing so All our employees are free to become or remain, or not to become or remain, members of Omaha Typographical Union No 190, AFL-CIO, or Stereotypers and Electrotypers Local No 24, AFL-CIO, or any other union FREMONT NEWSPAPERS, INC (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181