Inter Collegiate Press

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inter Collegiate Press, Division Sargeant Welch Scientific Co. and Lithographers & Photoengravers International Union, Local 235. Case 17-CA-4229-2 December 1, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 11, 1971, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and Res- pondent filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent also filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the, hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. i In adopting the Trial Examiner's finding that, based on objective criteria, Respondent had a good-faith doubt as to the Union's lack of majority status, we find it unnecessary to determine whether the March 6 strikers were properly discharged as the record contains sufficient other evidence of a lack of majority support for the Union. In so finding, we consider as having been legally discharged those employees who participated in the refusals to work overtime N.L R B v. Kohler Company, 220 F.2d 3, 11 (C.A. 7) As among the remaining employees, there was a sufficient number who had indicated, by their words and deeds, their dissatisfaction with their union representation, to create objective criteria justifying Respondent's good-faith doubt as to continued majority status. And this is true even if the March 6 strikers are, arguendo, included in the unit and their replacements not counted for this purpose Accordingly, we deem it unnecessary to pass on the question of whether the Trial Examiner properly rejected the Charging Party's offer of proof relating to the Union's compliance with Section 8(d) in regard to the March 6 strike and the overtime ban. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 'GEORGE L. POWELL, Trial, Examiner: The issue in this case is whether Respondent had a good-faith doubt of the majority status of the Union when it refused to recognize and bargain with it almost 4 years after certification. Under the circumstances of this case, I find Respondent rebutted the presumption of continuing majority and had a good- faith doubt of majority. I will order the complaint dismissed. The case arose upon a charge filed, on March 12, 1970, by Lithographers & Photoengravers International Union, Local 235, herein called the Union or LPIU, alleging that Inter-Collegiate Press, Division Sargeant Welch Scientific Co., herein called Respondent, has engaged in, and is engaging in, certain unfair labor practices affecting commerce as set forth and defined in Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq, herein called the Act. The Regional Director for Region 17 of the National Labor Relations Board, herein called the Board, issued a Complaint and Notice of Hearing on January 28, 1971, based upon the charge alleging violations only of Sections 8(a)(1), (5) and 2(6) and 2(7) of the Act. In its duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice and affirmatively defended on the ground that after the Union engaged in two separate unlawful activities in violation of Section 8(d) of the Act, Respondent discharged all persons engaged in the unlawful activities causing the Union to lose its majority status and that it thereafter withdrew recognition from the Union on the basis of its good-faith doubt of the Union's continuing majority. The case was tried before me on March 11 and 12, 1971, and briefs were received from the General Counsel, Respondent, and Charging Party on April 12, 1971. Pursuant to the Complaint and Notice of Hearing, the parties were present at the trial, were represented by counsel, were afforded full opportunity to be heard, were permitted to call, examine, and cross-examine witnesses, present oral argument, and file briefs. Upon consideration of the entire record, including the briefs filed with me and my observation of the witnesses as they testified before me, I find, for the reasons hereinafter set forth, that the General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(a)(1) and (5) of the Act as set forth in the Complaint, because the presumption of continuing majori- ty has been rebutted. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE EMPLOYER Respondent admitted, and I find, that it is engaged in the printing, binding, and distribution of school yearbooks and related publications at its plant at 6015 Travis Lane, 194 NLRB No. 60 INTER COLLEGIATE PRESS 395 Mission, Kansas. In the course and conduct of its business, Respondent annually purchases goods or services valued in excess of $50,000 directly from suppliers located outside of the State of Kansas, and it annually sells and distributes products, the gross value of which exceeds $500,000. Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The theory of the complaint is that under the presump- tion of continuing majority following the first year of Board certification of representatives, Respondent interfered with, coerced, and restrained its employees under Section 8(a)(1) and refused to bargain in good faith under Section 8(a)(5) of the Act when it withdrew recognition of the Union on March 16, 1970, almost 4 years after it had been certified on May 12, 1966. At the outset, although Respondent has dealt with four different unions since 1963, it has a record of never being guilty of an unfair labor practice. Based upon a stipulation of the parties (Joint Exh. 15) and credited testimony of witnesses for Respondent (General Counsel rested his case after Joint Exh. 15 had been introduced into evidence and had no witnesses other than one rebuttal witness), the labor relations history of Respondent is as follows: On May 1, 1963, District 50, United Mine Workers of America filed a representation petition in Case 17-RC-4163 claiming to represent a majority of the Company's production and maintenance employees. The parties were not able to agree on the unit placement of the Company's temporary seasonal employees and a hearing was held to resolve this dispute. On October 25, 1963, the National Labor Relations Board in Washington upheld the Company's contention that the temporary seasonal em- ployees should be excluded from the bargaining unit. An NLRB secret ballot election was held on November 15, 1963. On November 20, 1963, District 50 filed objections to the election and on February 11, 1964, the Regional Director set aside the election and ordered a second election. The second election was held on March 4, 1964, and on March 12, 1964, the Kansas City Regional Office certified that District 50 lost -that election by a vote of 117 to 89. On December 13, 1965, LPIU filed a representation petition with the Board in Case 17-RC-4942 seeking to represent the Company's Lithographic Production employ- ees. Again, a representation hearing was held because the parties could not resolve the unit placement of the Company's temporary seasonal employees working in the lithographic production areas. On April 15, 1966, the Board ruled that temporary seasonal employees should be excluded from the bargaining unit. A secret NLRB election was held, and on May 12, 1966, LPIU was certified as the bargaining representative for the Company's lithographic production employees, as described in paragraph 4 of the complaint. On December 12, 1966, Kansas City Printing Pressmen and Assistants Union, Local 16, filed a representation petition in Case 17-RC-5264, seeking to represent the Company's letter pressmen, steel die pressmen, and assistants, but excluding temporary seasonal employees. On the same day, Bookbinders Union Local No. 60 also filed a representation petition in Case 17-RC-5263 seeking to represent the Company's bindery employees, but excluding temporary seasonal employees. Consent elections were held in each of these cases on February 23, 1967; the Unions won both elections and were thereafter certified. After LPIU was certified to represent the Lithographic Production employees, the Company and the Union negotiated a 32-month agreement covering these employ- ees. The agreement was effective from January 26, 1967, through September 30, 1969. The Company also negotiated collective-bargaining agreements with the Bookbinders Union and the Printing Pressmen. The Bookbinder agreement expired on August 30, 1970, and the Printing Pressmen agreement will expire on June 30, 1971. On July 28, 1969, LPIU notified the Company by letter of its intention to reopen and modify the existing contract. Negotiations for a new bargaining agreement started in September, 1969. Twenty-five formal bargaining meetings were held between the Company and LPIU. The first bargaining meeting with LPIU was held on September 9, 1969. Thomas Barr, personnel manager, was the company spokesman. At this meeting, Harold Larson, LPIU's spokesmen stated that he wanted the contract to cover the Company's temporary seasonal Lithographic Production employees. The Company refused to make this change. At the meeting on September 15, 1969, Harold Larson, LPIU representative, asked that LPIU be recognized as bargain- ing agent for the temporary seasonal lithographic prod- uction employees, stating that he was prepared to prove LPIU's majority with authorization cards. Thomas Barr said that LPIU should use the services of the NLRB to settle the recognition claim. A number of bargaining meetings were held with LPIU between September 15, 1969, and February 11, 1970. At the February 11, 1970, bargaining meeting with LPIU, Earl Engle was the chief spokesman for the Company and Larson was the LPIU spokesman. Larson said that the LPIU committee had discussed the Company's last offer with the employees, that the offer was rejected and that the committee had authorized an overtime ban, if necessary, to bring the negotiations to a conclusion. Larson then said that a majority of the temporary seasonal employees working in the lithographic production unit had designated LPIU as their representative and he asked the Company to recognize the LPIU as bargaining agent for these people. Engle replied that the Company had a good-faith doubt that LPIU represented for collective-bargaining purposes an uncoerced majority of the temporary seasonal employ- ees in any unit appropriate for collective bargaining. Larson held up some LPIU authorization cards and said that LPIU was willing to submit the authorization cards to a third party for verification. Engle said that the company was not interested in a card check, that authorization cards 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are notoriously unreliable, that checking cards would not solve the problem since the Company would not know the circumstances under which the cards were signed, and that the Company believed the Union was seeking an inappro- priate unit. He suggested that LPIU use the services of the NLRB to solve the problem. Engle told Tyler what transpired at this bargaining meeting. On February 13, 1970, the LPIU filed a representation petition in Case 17-RC-6314 seeking to represent the Company's 54 temporary seasonal lithographic production employees. On June 24, 1970, the Regional Director dismissed the petition because the unit of employees for which LPIU sought to act as the bargaining agent was inappropriate for collective-bargaining purposes and "Me Employees here directly involved cannot, as suggested by the Petitioner as an alternative, be considered a voting group which might be added, after election, to the collective bargaining unit established in Case No. 17-RC-4942." LPIU did not appeal the Regional Director's Decision. The next bargaining meeting with the LPIU was on February 17, 1970. Engle, on behalf of the Company, made a proposal which was unacceptable to the LPIU. The next meeting was on February 25, 1970. After making a proposal to the Company, Larson said that the employees wanted an immediate settlement, that they were willing to make some sacrifices, and that an overtime ban would go into effect the following Friday at 3:30 p.m., if the Company and the LPIU had not reached agreement. Engle told Larson that an overtime ban was an "unprotected and unlawful activity," that the Company had the right to discharge people who engaged in that kind of activity and that the Company was putting the LPIU on notice. An Internation- al Union representative said that LPIU normally did not give notice of an overtime ban, but it was giving notice in this case to let Respondent know that it would have to settle with the Union. That ended the meeting. Under date of February 26, 1970, LPIU distributed to the lithographic production employees a letter announcing a fine of $100 for each violation of the overtime ban. At the next meeting on February 26, 1970, the Company made a proposal which was rejected by the LPIU and LPIU made a counterproposal which the Company stated it would consider. The next meeting was on February 27, 1970, and the Company rejected the Union's last proposal. At this meeting, Engle told Larson that if the overtime ban went into effect at 3:30 p.m. the Company would discharge those persons who engaged in it. At 3:30 p.m. on Friday, February 27, 1970, the overtime ban went into effect. Seventeen persons represented by the LPIU obeyed the overtime ban by refusing to work scheduled overtime. On February 27 these 17 persons were sent a telegram notifying them that they were discharged. [In Case 17-CA-4229, on December 28, 1970, the General Counsel, on appeal from a refusal to issue complaint by the Regional Director, found that the refusal of the 17 employees to perform scheduled overtime work on February 27, 1970, was a "work stoppage in violation of Section 8(d)(3) of the Act and of the no- strike provision of the collective bargaining agreement 1 Section 8(d), in pertinent part, provides that "Any employee who engages in a strike within the 60-day period specified in this subsection [as these employees did] shall lose his status as an employee of the employer between" LPIU and Respondent. Thus, by operation of statute, the General Counsel found that the 17 persons lost their status as employees when they refused to work overtime.]' On March 3, 1970, the Company filed an unfair labor practice charge, designated as Case 17-CB-758, alleging that the LPIU interfered with employees' rights guaranteed by the Act by threatening to fine employees for violation of the Union's overtime ban. The Regional Director found merit to the Company's charge and accepted a unilateral settlement agreement from LPIU. The parties met for further negotiations on March 4, 1970. Larson stated that the Company acted in a hasty manner when it discharged the people who refused to work the overtime and he demanded that the Company reinstate these people. Engle told Larson that these people were discharged for engaging in a concerted refusal to work overtime in accordance with the LPIU overtime ban, that the Company told LPIU and the employees that they would be discharged, and that the Company did not intend to reinstate these people. Larson did not reply. Larson then made a proposal for a 2-year contract effective from January 1, 1970, to December 31, 1971. A condition of the LPIU's proposal was the immediate reinstatement, without loss of seniority, vacation benefits, or any other benefits, of all employees discharged for their concerted refusal to work overtime. The Company rejected this proposal. On March 6, 1970, LPIU filed an unfair labor practice charge against the Company in Case 17-CA-4229, supra alleging the Company violated Section 8(a)(1), (3), and (5) of the Act. The 8(a)(3) charge involved the alleged unlawful discharge of the 17 persons who engaged in the LPIU overtime ban, and the 8(a)(5) charge involved an allegation of surface bargaining. On March 6, at 3:30 p.m., LPIU struck the Company and commenced picketing the plant. The pickets carried signs that read, "Inter-Collegiate Press Unfair-On Strike-Supporting 15 [sic] Fired Employees-Local 235, LPIU, AFL-CIO, CLC." Engle was at the Company's plant when the strike started and immediately called his office to see if he had any telephone calls. He received word that Bill Eisler, the Union's attorney, had called him. At approximately 3:45 p.m. Engle returned Eisler's telephone call. Eisler stated that he had tried to reach Engle earlier but had not been able to do so and he wanted Engle to know that the Union had filed three charges with the NLRB against the Company.-Eisler said that LPIU had just gone on strike and Engle said he was aware of this, fact. Eisler said he was sorry things did not work out at the last bargaining meeting, as he was hopeful the Company and the Union would reach agreement at that meeting. Engle said he also had expected agreement at the last meeting, but apparently the Union was not willing to give up some demands the Company would not grant. Eisler said he was still hopeful that the Company and the Union would reach agreement on a contract and that the strike would be settled on a reasonable basis. He said, if he could be of any assistance in helping the Company and Union reach agreement, Engle engaged in the particular labor dispute, for the purposes of Sections 8, 9 and 10, of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer." INTER COLLEGIATE PRESS 397 should call him. That ended the conversation. On March 6 at approximately 4:30 p.m. Engle telephoned Eisler and asked what the Union demanded to settle the whole matter. Engle said that he and Tom Barr wanted to talk to Larson to get this information, but would not call Larson unless they had Eisler's permission. Eisler said that since he had not been active in the negotiations he did not know the Union's demands, but he would immediately notify Larson to expect a call from the Company on this matter. Five minutes later, Eisler called Engle and stated that he had talked to Larson and that Larson was in a meeting with the Company's employees and was not in a position to talk to Barr or Engle. Eisler said he asked Larson about the Union's demands for ending the strike and that Larson wanted the same contract settlement that he proposed at the March 4 meetmg-that the Union's present demands were everything the Union demanded on March 4, but that it might take a little more to get the people back to work in view of the strike situation. Eisler stated that if the strike continued for any length of time he was sure that the Union would increase its demands. Engle told Eisler that he would report the situation to the Company and determine if it was possible to reach settlement. That ended the conversation. On March 6, 1970, Respondent did not check off LPIU dues for any employees. No employees complained about the Company's failure to check off Union dues, even though it had been company practice to check off Union dues on a weekly basis. On March 7, 1970, at 10:15 a.m., Barr had a telephone conversation with Larson. Barr asked what the Union wanted to get the people back to work, that the Company was interested in knowing exactly what it would take. Larson said that the Union had to have something more than the nonunion areas,, even ever so small, and that the proposal the Union made to the Company at the March 4 meeting could be sold to the people. Larson said that it was up to the Company to make the next move, that the Union had made its rock-bottom offer and that if the Company wanted to discuss this matter further it should contact the Federal Mediator for a meeting. Larson ended the conversation by saying that the Company would have to accept what was offered on March 4 and maybe more. The next bargaining meeting was held on March 9, 1970. The meeting opened with Larson saying that LPIU was on strike because the Company fired 16 [sic] people and LPIU would not take any more chances of the Company firing people who refused to work overtime. Larson also said that LPIU would not change its position from the proposal made at the March 4 meeting. Engle asked for a list of LPIU's strike demands. Larson said the Company would have to meet LPIU's proposal of March 4 and, if the strike continued, the demands would increase. Engle said he took Larson's statement to mean that the LPIU would continue to strike if the Company did not agree to the Union's proposal of March 4 and that the Union's demands would increase if the strike continued. Larson said this was correct. Engle told Larson the Company had no further proposals. The Company's final proposal included a 6.7 percent wage increase and a 37 1/2 hour work week, with overtime after 8 hours per day.) The Company's final proposal was not acceptable to the Union. At 8:30 p.m. on March 9, the Company sent a telegram to the LPIU unit employees who were on strike, notifying them that they were discharged for engaging in an unlawful strike. The Union later on charged this to be an 8(a)(3) discriminatory discharge under the Act, in Case 17-CA-4229-2, but the General Counsel, in refusing to issue a complaint, found that the strike on March 6, 1970, was illegal and in violation of Section 8(d)(3), and in violation of the no-strike clause of the parties' collective- bargaining agreement, since the Union failed to give notice of contract modification to the Kansas State Mediation Service. "Consequently, [the General Counsel found that] those unit employees who participated in the strike lost their status as employees and were subject to discharge by virtue of Section 8(d) [of the Act]." On March 9 at 8:30 p.m., the Company sent a telegram to Larson notifying him of the discharges and stating that the Company no longer recognized LPIU as the bargaining agent for the lithographic employees. General Manager Tyler made the decision to withdraw recognition from LPIU on March 9, 1970. Respondent had discharged 60 of 68 persons in the bargaining unit. Of the eight remaining employees, one was on a leave of absence, one was on layoff, and six worked through the overtime ban and strike, crossing the Union's picket line. On the basis of these facts, Tyler concluded that LPIU did not represent a majority of the employees in the bargaining unit. At approximately 11 p.m. on March 10, the LPIU ceased picketing the plant. On March 10, 1970, at approximately 1:30 p.m., Ken McCue, general foreman, met with discharged pressman, Bob Haddock, an LPIU union steward and member of the union negotiating committee , at James Michael's home. Present at the meeting were Michael, Haddock, and McCue. Haddock opened the meeting by saying, "Let's get to the point." McCue said, "What is the point?" Haddock replied that he was unhappy with the Union and he called Harold Larson, the union president, a son-of-a-bitch. Haddock said he wanted to return to work. McCue asked if other discharged pressmen desired to return to work and Haddock said that three others, Claude Manchester, Sam Stabler, and Bob Locklear, wished to return to work. McCue said that if at least seven of the discharged pressmen wished to return to work, he would talk to management about their reinstatement. Arrangements were made for Haddock to telephone McCue at the plant after he (Haddock) talked to the pressmen. After McCue left Michael's home, he went to the plant. At approximately 6:30 p.m. on March 10, McCue received a telephone call from Haddock. Haddock stated that he had not met with the pressmen, that a union meeting was scheduled that night, and that he wanted to wait until after the union meeting before making further commitments to McCue. McCue agreed to wait at the plant for Haddock to call him with respect to the pressmen returning to work. Haddock did not call by 1:30 a.m. on March 11, so McCue left the plant to go home. As McCue was driving away from the plant, he saw four or five cars and some pressmen' in front of the plant and he drove up to them. Approximately 10 of the pressmen who had been discharged for engaging in the unlawful strike were in these automobiles. At that time, McCue had another conversation with Haddock. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haddock said that the union meeting was over, that nothing much. had., changed, that the men had met at the plant in order to decide where to have their meeting about returning to work, and that they had decided to go to Glenn Ledom's home. Haddock asked McCue if Earl Engle, attorney for Respondent, would represent him in a suit against that son-of-a-bitch, Harold Larson. McCue replied that he did not know. McCue agreed to return to the plant and wait for Haddock to call him after the pressmen meeting. At approximately 2:30 a.m. on March 11, Haddock called McCue and stated that 10 men wanted to return to work. McCue agreed,to contact management with respect to reinstating the 10 men and stated that he would telephone Haddock at Glenn Ledom's home when he had some information. At approximately 4:30 a.m., McCue called Haddock and stated that the Company would reemploy the pressmen, but the Company would no longer recognize LPIU as their bargaining representative. Haddock said that sounded fine to him. McCue reported his conversations with Haddock to Don Tyler, general manager, and Elroy Wildhaber, plant manager. On Wednesday morning, March 11, 1970, Eisler called Engle at Respondent's plant and stated the picket line was down, he hoped. Engle said that the picket line was down and that the printing pressmen and the bookbinders were at work. Eisler asked if the Company would make a proposal to LPIU and Engle said, "No," that the Company no longer recognized LPIU. Eisler then asked if the Company would consider a union proposal to end the strike. Engle replied that the Company no longer recognized LPIU as the bargaining agent for any of its employees, but that if he (Eisler) had something to say, that he (Engle) would listen. On behalf of LPIU, Eisler proposed a 6.9 percent increase effective January 1, 1970; a health and welfare plan as proposed by the Company, effective no longer than April 1, 1970; press helper classification and advancement language as proposed by the Company; 37.5 hours per week without reduction in hourly pay effective March 9, 1970; time and one-half after 8 hours per day; and additional vacations and shift differential. For the second year, Eisler proposed a 5.1 percent increase; double time on Sunday; time and one-half after 7.5 hours per day; one additional holiday; one percent early retirement with a signed letter bringing it to 3 percent in the future. As a condition of settlement, Eisler proposed immediate reinstatement of all discharged employees without loss of seniority or other benefits; mutual withdrawal of all unfair labor practice charges, not including the LPIU petition to represent the temporary seasonal employees; release from all liability for the Printing Pressmen, Bookbinders and LPIU; and no discipline for employees in any unit. Eisler stated that the Company could accept this LPIU proposal with the understanding that the Company did not recognize LPIU as representative of any of the employees in the plant. Engle told Eisler that he would communicate this proposal to the Company, and promised to call him that afternoon. On the morning of March 11, Thomas *Barr, personnel manager, offered permanent seasonal lithographic prod- uction jobs to a number of temporary seasonal employees who were working in the plant. Barr told these employees that Respondent was hiring replacements for persons who .had been, discharged for, engaging in the LPIU activity. Thirty-four temporary seasonal employees accepted perma- nent seasonal jobs in the lithographic production unit. On March 11, Barr had a telephone conversation with Bob Locklear, one of the discharged lithographic pressmen. Locklear asked Barr if Respondent intended to bargain with LPIU. Barr said, "No," that Respondent did not recognize the Union as the bargaining agent for any of the employees. Locklear then asked if Respondent would ever bargain with LPIU again and Barr said, "Yes," if the Union became the legal bargaining agent for the employees. Locklear asked if Respondent would reinstate any of the pressmen, stating that he and two other pressmen were interested in returning to work that day. Barr replied that Respondent wanted the pressmen to return to work. Barr reported this telephone conversation to Tyler. At 4 p.m. on March 11, 1970, Engle called Eisler. Engle stated that the Company did not recognize LPIU as bargaining representative for its lithographic employees, that the Company would not bargain with LPIU unless it was recertified as the representative for the Lithographic Production employees and that the LPIU proposal made earlier in the day was not acceptable to the Company. Eisler' asked if anything would be acceptable to the Company and Engle said, "No". On the afternoon of March 11, 1970, the Company sent identical telegrams to 32 persons discharged for engaging in the overtime ban or strike and offered them unconditional reinstatement to their prior positions. On March 12, 1970, the Company sent these persons a letter setting forth the conditions under which reinstatement was offered. Also on March 12, LPIU filed unfair labor practice charges against the Company in Case 17-CA-4229-2, supra, alleging, among other things, that the Company unlawfully dis- charged 45 persons for engaging in the LPIU strike. (This is the part of the case the General Counsel refused to issue complaint, as noted above.) Barr testified that on the morning of March 12, 1970, he and Wildhaber, at the request of the Lithographic Pressmen, went to Wally Noble's home. Noble had been, discharged for engaging in the LPIU strike. Barr and Wildhaber arrived at Noble's home at about midmorning. (There is a controversy on time, at this point. Harold Larson, president of LPIU, testified that a union meeting was held from 10 a.m. to 11:30 a.m. on March 12, and that some 55 discharged pressmen attended this union meeting. If the pressmen were at a union meeting on March 12 from 10 am. to 11:30 a.m. they could not have been present at the meeting with Barr and Wildhaber. Perhaps Barr is mistaken with respect to the time of his meeting, perhaps Larson is mistaken with respect to the time of the union meeting, or perhaps both Barr and Larson are mistaken with respect to the times of their respective meetings. In any event, there is no evidence in the record to refute Barr's testimony with respect to what occurred at Noble's home, and it is unnecessary to resolve the conflict in time.) All of the pressmen, except Frank Bristow and Robert Muse were present at Noble's home when Barr and Wildhaber arrived. Haddock acted as spokesman for the pressmen. Haddock opened the meeting by asking the conditions INTER COLLEGIATE PRESS under which the pressmen would be reinstated. After Barr stated the conditions, Haddock asked if the reinstatements would be permanent. Barr said that Respondent had no malice towards the men, that it wanted them to return to work, that it needed them, and that they would be employed so long as Respondent hadwork to employ them and they performed their jobs satisfactorily. At that point, Locklear asked if Earl Engle, attorney for Respondent, would be interested in representing the pressmen in a misrepresentation suit against LPIU and Larson. There was also discussion with respect to whether Respondent would be interested in the pressmen forming a company union. Specifically, Locklear said that "he was tired of the union, didn't want anything else to do with it and would [Respondent] be interested in . . . [a] company union. ... " Barr said that the pressmen would have to form such a union on their own. One of the pressmen asked Barr if Respondent intended to continue deducting union dues, and he replied "No." Glenn Ledom said, "I'm glad for that." On March 12, Barr told Tyler what transpired at the meeting. On March 16, Marion Quigley was permanently transferred to a job outside of the LPIU unit. Thereafter, on March 25, 1970, Marion Quigley quit her employment with the Company. Then on May 12, 1970, Mrs. Quigley filed a charge against the Company in Case 17-CA-4294 alleging that she was constructively discharged by the Company by her permanent transfer on or about March 12. By letter dated June 22, 1970, the Acting Regional Director refused to issue a complaint in this matter. There was no appeal. By March 13, 1970, all of the female employees who were offered reinstatement in the lithographic production unit had returned to work. Immediately after these women reported to work, Respondent's supervisors (Marie Welch, Oleta Maples, Violet Evatt, LoAnn Hahner, and Edna Brown) were told by 10 of them (Marcella McClanahan, Melba Gordon, Ruthe Smith, Margaret Trebbe, Thelma Smith, Diana Stockman, Charlotte Stockman, Thelma O'Neal, Ilena Hedlund, and "Tiny" Beaty) that they were through with the Union and were going to drop out of it; that they wouldn't join a union under any circumstances; that they had been sold down the river and that they were going to drop out of the Union; that Harold Larson, president of the Union, gave them a dirty deal; that they were angry at the Union and Larson; and that they were glad it was over and they would never join another union (all statements set forth above are not applicable to each employee). The five supervisors involved told Ken McCue, general foreman, of the conversations they had with the reinstated lithographic production employees, and McCue told General Manager Tyler of the conversations he had with the five supervisors. On March 13, 1970, the 32 persons offered reinstatement commenced returning to work, and by March 16, 1970, all of them had returned to work. On the morning of March 16, 1970, there were 73 employees in the lithographic production unit. Of this number, three original unit 2 The figure of 23 is arrived at as follows: During the strike, 10 were willing to work even though Respondent would not recognize the Union; 3 more (Locklear, Noble, and Ledom) expressed antiumon sentiments; and 10 additional women had 399 employees had worked through the overtime ban and strike; one original unit employee was on layoff; 2'32 of 32 reinstated employees had indicated to Respondent they no longer wished LPIU to be their bargaining representative, or had uttered antiunion sentiments to the same end; and 37 employees hired in the bargaining unit between March 2 and March 11, to replace those persons who were discharged, had worked through the Union's overtime ban and strike (See Joint Exh. 16). Thus, 63 out of the 73 employees on March 16, 1970, had worked through the overtime ban and strike or had expressed antiunion sentiments. On March 14, 1970, Engle received two letters, both dated March 13, 1970, from Eisler. One letter (Joint Exh. 8) demanded that the Company bargain with respect to subcontracting any work that had been a part of the lithographic process performed by persons in the LPIU unit. The second letter (Joint Exh. 9) made a continuous demand for the Company to reinstate all persons who had been discharged and for the Company to recognize and bargain with the Union (Joint Exh. 15). By letter dated March 16, 1970 (Joint Exh. 10), Engle answered Eisler's March 13 letters, stating the Company had a good-faith doubt that the Union represented an uncoerced majority of the Company's employees in any unit appropriate for collective bargaining . Engle suggested that the Union use the statutory procedures of the NLRB to determine the representation desires of the Company's employees (Joint Exh. 15). Before writing Joint Exhibit 10, Engle telephoned Tyler and they had a long conversation with respect to the representation desires of the employees in the lithographic production unit. Specifically, Engle and Tyler talked about supervisor reports that a number of the reinstated female employees were unhappy with the Union and intended to drop out of it; that the reinstated pressmen entered into direct negotiations with Respondent concerning their reinstatement ; that one of the reinstated pressmen, who was a union steward and a member of the Union's bargaining committee, stated "that he no longer wanted the Union to represent them" and that Larson was a son-of-a- bitch; that the reinstated pressmen were pleased that the Company was no longer checking off union dues; that some of the reinstated pressmen were tired of paying the dues; that the reinstated pressmen were interested in forming their own union; and that the reinstated pressmen were talking about suing the Union and Larson. Engle and Tyler also talked about the unit complement on March 16; that the 32 reinstated employees did not represent a majority of the employees in the bargaining unit and that the 37 replacements, who did represent a majority of the unit, were told that they were replacing discharged union people. Tyler testified he then concluded that the replacements were not sympathetic to the Union. With respect to the possibility that some of the replacements signed union authorization cards before they were em- ployed in the unit, Engle told Tyler that, in his-opinion, expressed annumon sentiments. Respondent's count, in its brief, is 24 rather than 23 because it counts Phillis Wheeler with the 10 women identified above. I have been unable to locate Philhs Wheeler being identified. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards are notoriously unreliable and that in 1963 the Mine Workers attempted to organize Respon- dent's employees on the basis of cards, but lost a representation election. Engle and Tyler also talked about the fact that some of the replacements may not have understood that they were signing union cards, since some authorization cards were given to supervisors to return to the personnel office. Engle and Tyler also talked about the fact that the Union's attorney, Mr. Eisler, stated Respondent could accept an LPIU contract proposal, which included reinstatement of all the discharged employees, with the understanding that Respondent did not recognize LPIU as the bargaining agent for any of the employees in the plant. (Tyler did not think Eisler would make such a proposal if the Union represented a majority of the employees in the lithographic production unit.) In addition, Engle and Tyler talked about the fact that 40 employees in the unit worked during the union overtime ban and crossed the Union's picket line to report to work. It was Tyler's conclusion that these 40 employees, since they crossed the picket line, were not sympathetic to the Union. After discussing the matters set forth above, Engle told Tyler, he doubted that LPIU represented a majority of the employees. On the basis of Engle's opinion, and the facts set forth above, Tyler concluded that on March 16, 1970, LPIU did not represent a majority of the lithographic production employees, and he directed Engle to write Joint Exhibit 10. It was Tyler's decision. On March 19, 1970, Larson wrote a letter (Joint Exh. 11) to T. M. Mints, Jr., president of Respondent. In this letter, Larson complained about the fact that Respondent did not reinstate all of the discharged employees. On March 26, 1970, Mints, by letter (Joint Exh. 12), replied to Larson's letter (Joint Exh. 15). About April 3, 1970, Engle received a letter (Joint Exh. 13) from Eisler, questioning the basis of the Company's good-faith doubt of the Union of the majority and suggesting that the Company was not acting in good faith. By letter dated April 6 (Joint Exh. 14), Engle wrote Eisler acknowledging receipt of his letter, again stating the Company had a good-faith doubt that the Union represented for purposes of collective bargaining an uncoerced majority of the Company's employees in any unit appropriate for collective bargaining. Before writing Joint Exhibit 14, Engle telephoned Tyler. At that time, they reviewed the topics discussed during their telephone conversation of March 16. In addition, they talked about information Tyler received from his supervisors with respect to the Union's unsuccessful attempt to reorganize the employees and the report that some reinstated female employees signed letters resigning from the Union. On the basis of this conversation, Tyler instructed Engle to write Joint Exhibit 14. There was no evidence of any violations of Section 8(ax1) of the Act alleged or adduced, independent of the refusal to recognize and bargain with the Union as set out above. Discussion and Conclusions The General Counsel correctly defines the problem by stating in his brief: The principal issue involved in this proceeding was squarely faced by the Board in its decision in Laystrom Manufacturing Co., 151 NLRB 1482. In resolving the issue, the Board stated the controlling principles as follows. Absent unusual circumstances, there is an irrebutable presumption that the majority status of a certified.union continues for one year from the date of certification. After the first year the certificate still creates a presumption of majority status, but the presumption is normally rebuttable by an affirmative showing that the union no longer commands a majority. Moreover, where the certificate is a year or more old an employer may withhold further bargaining without violating the Act and insist that the union re-establish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority. A showing of such doubt, however, requires more than an employer's mere assertion of it and more than proof of the employer's subjective frame of mind. The assertion must be supported by objective considerations. The applicable test, as defined in the Celanese case, is whether or not the objective facts furnish a "reasonable basis" for the asserted doubt, or, put another way, whether or not there are "some reasonable grounds" for believing the union has lost its majority status since its certification. [Citation onutted.] Accordingly, the issue to be resolved in this case is the same as it was for the Board in Laystrom, i.e., whether the Respondent's claimed good faith doubt that the Union represented a majority of the unit employees and its consequent refusal to recognize and bargain were based upon objective facts which furnished a reasonable basis for the asserted doubt. In addition to this specific requirement, the Board, in Celanese Corporation of America, 95 NLRB 664, at 672-673, stated that: "a majority issue must not have been raised by the employer in a context of illegal anti-union 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, it would seem to be not enough for an employer merely to show certain facts which, standing alone, might perhaps form a reasonable basis for a good faith doubt of the union's continuing majority when it can also be shown that certain conduct on the part of the employer, whether illegal or not in itself, actually created the facts upon which the employer is basing its doubt. As the Board stated in Celanese, the issue can only be resolved in the light of the totality of all the circumstances involved in the particular case. Surely the circumstances of this case are sufficient for a reasonably prudent employer to come to the conclusion that the Union had no majority. Also there is no other conduct of Respondent. I find from the uncontroverted facts of this case that there was reasonable cause for Respondent to believe the Union no longer represented a INTER COLLEGIATE PRESS 401 majority of the employees in the unit and accordingly that the presumption of continuing majority was successfully rebutted. Throughout all the testimony I was impressed by the fact that there was no evidence whatsoever nor any feeling in the air in the courtroom tending to show any antiunion malice or desire not to bargain in good faith under the policies of the Act. The stipulated facts likewise show that the Union engaged in unlawful activities but Respondent acted with restraint and reason based upon objective criteria and that it did in fact have a good-faith doubt of the Union's majority status based upon objective considerations and criteria. The strikers lost their status as employees upon engaging in their unlawful activities, and they were thereafter discharged. A summary of the following facts should prove my conclusion. As of March 16, 1970, the controlling date in the case, there were 73 employees. At least 63 were not in favor of the Union. Forty of these worked during the overtime ban and strike and 23 specific employees did not favor the Union as noted above. On March 12, 1970, Respondent told all the employees (except Bristow and Muse) at a meeting that there would be no more union dues check-offs and the only comment was Ledom's, "I'm glad for that." The employees at the meeting were also expressing their dissatisfaction with the Union and its leadership by discussing the formation of another union and possibly suing Larson. No union dues had been checked off since March 6, 1970, and there had been no complaints. Finally on March 11, 1970, Eisler virtually admitted the Union lacked a majority by suggesting a strike settlement without recognizing the Union. Also before withdrawing recognition of the Union on March 16, Engle and Tyler had discussed all the facts. Thus, the objective criteria was discussed and relied upon before taking action on March 16, 1970. Thus a withdrawal of recognition on March 16, 1970, comports with the policies of the Act. The General Counsel argues in his brief that Respondent cannot successfully contend that all of the 37 temporary seasonals hired into the unit did not wish to have the Union represent them just because they worked during the strike, arguing that at least 30 percent of 27 of them belonged to the group the Union petitioned for, supra, because it takes 30 percent before the Board processes a representation petition. However, the Respondent has continually main- tained that cards are unreliable, so too does the Board itself, and the General Counsel cannot assume that at least 30 percent of the group of 27 would vote for the Union in an election. Even a loss of 8 (30 percent of 27) from 63 would give Respondent 55 out of 73. The General Counsel also argues in his brief that I have a "reasonable basis for doubting the exactitude of the witnesses' entire testimony" respecting the antiunion statements they made when rehired. This suggestion is an effort to throw a cloud of suspicion on Respondent's conduct which up to that time had been beyond suspicion. It is true these witnesses could not remember the day of the month or week when the returning employees told them their antiunion statements but they could and did remember it was the first day of employment which turned out to be March 13. It is also noted that during this time Respondent was operating its own intelligence set-up requiring supervisors to report to their superiors what employees were telling them about the Union. I reject the argument of General Counsel and I credit the testimony of these supervisors. Finally, General Counsel questions that certain employ- ees made the antiunion statements attributed to them by supervisors because they continued to attend union meetings and some had reaffirmed their allegiance by signing union cards during this time, as testified to by Union President Larson. But this too is not sound, as the history of Board cases establishes the fact that employees say different things to Unions than to the employers with the true test of their resentment being an election. This does not mean that the employer cannot count on the statement made to him or the Board cannot count on authorization cards of 30 percent of the employees, or the Union cannot count on statements made to it. Employers , as well as the others, are permitted to count on all objective considera- tions available. Under all the circumstances of this case I am of the opinion that this employer had a good-faith doubt of the Union's majority in the fourth year of the certification of representatives and that this doubt was based upon a prudent evaluation of the objective circum- stances. The Union's brief points out the Respondent has not filed for an election to get a definitive decision. Under the circumstances of this case I do not believe the filing of a petition for certification by the Respondent or the absence of filing by the Respondent adds or subtracts anything. Respondent did tell the Union to use the Board's procedures to determine majority. Actually, the failure by the Union here to file a petition for an election under these facts, might even count against its own belief that it represented a majority. The brief of the Charging Party has an additional point in that under Franks Bros. Co. v. N.L R.B., 321 U.S. 702 (1944), Respondent was under an obligation to bargain for a reasonable period in which the bargaining relationship can be given a fair chance to succeed and that its refusal to bargain and its request not to have to bargain with the Union until after an election is in fact a request to' be rewarded for its failure to bargain. From the record in this case this position of the Union must fail. Respondent, in its brief, does present an argument that as a matter of law, the Respondent had no duty to bargain with the union because: "A. The Company Was Entitled to Refuse to Bargain With The Union As a Penalty For Its Violations Of The Act"; "B. The Company Had No Duty to Bargain With LPIU So Long As The Union Demanded Reinstatement of All Discharged Employees As A Condition Precedent to Contract Settlement;" and "C. The Company Had No Duty to Bargain With LPIU So Long As The Union Was Demanding Dismissal Of All Unfair Labor Practice Charges As a Condition Precedent to Contract Settlement." These arguments have been considered but I feel it is unnecessary for the disposition of this case to pass judgment on them as I have already found the rebuttable presumption of continuing majority has been successfully rebutted by objective evidence and criteria and that 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's withdrawing recognition of the Union on March 16, 1970, follows the policies of the Act in that an Employer knowingly should not bargain collectively with a minority union as the majority representative of its employees.3 Also, under my finding that Respondent had a good-faith doubt of majority, there is no need to consider Respon- dent's other position that "IV Under No Circumstances Should Respondent Be Ordered to Bargain With The Union," and I therefore do not take a position on this proposition. The 8(a)(l) violations alleged fall for the same reasons. THE REMEDY Having found that the presumption of majority created in 1966 with Board certification had been successfully rebutted in that in 1970 there was ample evidence to support, Respondent's good-faith doubt of majority, I find the General Counsel has not sustained his burden of proof that Respondent refused to bargain in good faith within the meaning of Section 8(a)(5) of the Act, nor did he sustain his burden of proof that Respondent violated Section 8(a)(1) of the Act, all because Respondent successfully rebutted the presumption of continuing majority, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning 3 Cases supporting good-faith doubt are, among others, S & M Mfg Co., 172 NLRB No. 104; Dietz Forge of Tenn., 173 NLRB No. 5; Convair of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit appropriate for collective bargaining since the Union was certified by the Board on May 12, 1966, is: All permanent and permanent seasonal Lithographic preparatory and production employees of the Respon- dent and its Mission, Kansas, plant including all employees in the camera department (including the offset plate room), and the lithographic pressroom but excluding temporary seasonal employees, homework- ers, office clerical employees, all other employees, and guards and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The General Counsel has not established by a preponderance of, the evidence that Respondent has violated the Act as set out in the complaint. Upon the foregoing findings of fact and conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. Div., 169 NLRB No. 26; and Firestone Synthetic Rubber & Latex Co., 173 NLRB No. 179.