GAF Corp.

GAF CORPORATION 169 GAF Corporation and International Union of Operat- ing Engineers, AFL-CIO, Local 819. Cases 16-CA- 4280 and 16-CA-4328 January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 3, 1971, Trial Examiner Robert E. Mul- lin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing brief,' and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm only so much of that decision as is consistent with this Decision and Order. We find no error, however, in his rulings on evidentiary or procedural matters. 1. We agree with the Trial Examiner, for the reasons set forth in his Decision, that Respondent violated Sec- tion 8(a)(1) of the Act by suggesting the establishment of a plant committee to replace the Union. We do not agree, however, with his further finding that the Em- ployer violated Section 8(a)(1) of the Act by suggesting the circulation of a decertification petition. The conversations concerning the decertification pe- tition are set forth in detail by the Trial Examiner. Briefly, there were three relevant discussions. In the first, which was initiated by Lovell at his work station in early January 1971, Trebilcock made the suggestion concerning formation of a plant committee which we have found unlawful. The second conversation oc- curred in the third week in January, when Lovell went to Trebilcock's office to resume the discussion of how to eliminate the Union. At this time Trebilcock gave Lovell a page from the current collective-bargaining contract and, according to Lovell's credited testimony, pointed to the paragraph dealing with the revocation of checkoff authorizations.' In the third conversation, which occurred in Lovell's department in early Febru- ary, Lovell told Trebilcock that the page of the contract was too complicated for him to understand.' Trebil- Respondent's request for oral argument is hereby denied, as the record, including the briefs, adequately presents the issues and the positions of the parties ' Lovell clearly testified that Trebilcock pointed out this paragraph, but the Trial Examiner failed to mention this fact ' The Trial Examiner, after noting that the contract page contained lan- guage dealing with the selection of a union shop committee to process 195 NLRB No. 11 cock replied that it was only necessary to draw up a petition, have it signed by 51 percent of the employees in the bargaining unit , and present it to the Board before February 15. Under these circumstances, we conclude that Trebil- cock's statement concerning the decertification petition was not so closely connected with the unlawful sugges- tion of the formation of a plant committee, made 1 month earlier and never implemented, as to require a finding that it was equally unlawful. We note, in addi- tion, that the conversations in question were initiated by Lovell and two of them occurred at his work station. Furthermore, except in the first conversation, Trebil- cock did no more than inform Lovell of his legal right to file a decertification petition and of the preliminary requirement of employee support.' He did not indicate in any way that Respondent wanted the employees to sign or file a decertification petition, and, apart from the single unlawful suggestion made by Trebilcock, therb is no evidence of union animus on the part of Respondent or its supervisors. We shall therefore dis- miss this allegation of the complaint. 2. The Trial Examiner further found that Respond- ent violated Section 8(a)(5) of the Act by withdrawing recognition from the Union. We do not agree. It is well settled that where, as here, a union's certifi- cation year has expired, the presumption that its majority representative status continues is rebuttable,' and the employer may refuse to bargain if (1) the union in fact no longer enjoys majority representative status or (2) the refusal is predicated on a good-faith and reasonably grounded doubt of such majority status, based on objective considerations and not advanced for the purpose of gaining ti- Ie to undermine the union.6 The mere filing of a decertification petition does not provide sufficient grounds for doubting an incumbent grievances and that Lovell said that the page was too complicated , stated, without any basis in the record for doing so, that this statement concerning the page related "to setting up a committee " The following is the entire testimony of Lovell on this matter Q What was actually said in this conversation? A We discussed the page of the contract Q What did you say about the page of the contract? A I told him I didn't understand it It was too complicated for me to understand , and I didn't hardly know how to go about doing something like that At that time he told me all that would have to be done was a Petition drawn up and signed by 51 percent of the employees of the bargaining unit and present it to the Labor Board before the 15th of February Our dissenting colleague erroneously states that in the second conversation Lovell told Trebilcock that the "checkoff revocation suggestion," rather than merely the contract page, was too complicated Patently , the accurate version of the sequence of events supplies no basis for any conclusion that the two suggestions whose legality is in issue where "closely related and of one piece " In the context of this case, we attach no significance to Trebilcock's erroneous statement that the petition had to be supported by 51, rather than 30, percent of the unit employees Celanese Corporation of America, 95 NLRB 664, 671-672 Terrell Machine Company, 173 NLRB 1480, 1481, enfd 427 F 2d 1088 (C A 4), and cases cited therein 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union's representative status, since such a petition need only be supported by 30 percent of the employees in the bargaining unit. However, a petition supported by an uncoerced majority of the unit employees may establish such basis.' Here, Respondent knew that the petition had been signed by a majority of the unit employees, as employee Stout gave Trebilcock a copy of the petition. We have found that Lovell was not unlawfully induced to draft or circulate a petition. Further, as appears from the quotation in the Trial Examiner's Decision, the lan- guage circulated was considerably different from that suggested by Trebilcock. Significantly, Stout, who was clearly acting on his own in initiating and promoting the petition, had actually drafted it and obtained most of the supporting signatures. The one violation of Section 8(a)(1) which remains, and which we affirm, is the Respondent's suggestion that the employees establish their own committee to replace the Union. It does not appear to have affected the Union's majority status, caused employee disaffec- tion, or improperly affected the bargaining relationship itself.' It therefore stands only as an independent viola- tion, and does not affect our reversal of the 8(a)(5) findings. It was not connected with the conversation concerning the employee petition or with the circula- tion thereof, and there is no evidence that any action was ever taken to implement the suggestion. It is true that the petition subsequently drafted was typed on a company typewriter, that Lovell may have circulated it during working hours, and that Stout solicited some signatures during the day shift in violation of a plant rule prohibiting employees from being on the premises while not on duty. But these circumstances which might, in another factual context, taint the petition9 do not, in our view, do so upon this record. Here Respond- ent had apparently permitted employees to use its equipment for personal matters, the plant rule prohibit- ing entering the plant when not working was rarely enforced, and there is no evidence of any no-solicitation rule. Finally, in our view, the law did not require the Employer to examine the authorization cards proffered by the Union or to rely on such an examination in order to resolve the issue of majority status raised by the petition. As the decertification petition was free of unlawful employer interference and was supported by a state- ment signed by a majority of the unit employees, we find that Respondent, at the time it withdrew union 'Accord Fremont Newspapers, Inc, 179 NLRB 390 ' Colonial Manor Convalescent & Nursing Center, a Division of the La Grange Land Corp, 188 NLRB No 129 ° Compare Snyder Tank Corporation, 177 NLRB 724, relied on by the General Counsel, where the antiunion petition was circulated in a context of extensive violations of Sec 8(a)(1) of the Act The cases cited in fn 12 of the dissenting opinion are clearly distinguishable on their facts recognition , had objective grounds for doubting that the Union still enjoyed majority representative status. Accordingly, we shall dismiss the complaint insofar as it alleges a violation of Section 8(a)(5). ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, GAF Cor- poration, Arlington, Texas, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Encouraging its employees during a union's in- cumbency to form a plant committee to bargain collec- tively with the Employer. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its plant in Arlington, Texas, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by Respondent immedi- ately 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 the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. MEMBER FANNING, dissenting in part: I agree with the majority's adoption of the Trial Examiner's finding that Respondent violated Section 8(a)(1) by suggesting the establishment of a plant com- mittee to replace the Union. I disagree, however, with the majority's reversal of the Trial Examiner's further findings (1) that Respond- ent violated Section 8(a)(1) by also suggesting the cir- culation of a decertification petition, and (2) that Re- spondent violated Section 8(a)(5) by its subsequent withdrawal of recognition from the Union. '° In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " GAF CORPORATION 171 In reversing the 8(a)(1) finding, the majority treats the suggestion of the circulation of the decertification petition among the employees as if it occurred wholly separate and disconnected from the plant committee suggestion , and as if it did not emanate from Respond- ent or have its support. In reversing the 8(a)(5) finding, the majority expressly states that Respondent's sugges- tion that the employees establish their own committee to replace the Union "was not connected with the con- versation concerning the employee petition or with the circulation thereof, and there is no evidence that any action was ever taken to implement the suggestion." On that erroneous factual premise, the majority dis- misses the 8(a)(1) allegation as no more than informing employee Lovell of his legal right to circulate a decer- tification petition;" and finds that Lovell was not un- lawfully induced to circulate the petition, that the peti- tion which was signed by a majority of the employees was thus free of unlawful employer interference, that Respondent thus had objective grounds for doubting the Union's majority, and therefore that Respondent's withdrawal of recognition from the Union was not a violation of Section 8(a)(5). The fact is, however, that both suggestions were closely related and of one piece. Thus, according to employee Lovell's credited testimony, in an initial con- versation, Respondent explicitly suggested to Lovell the formation of the plant committee; in their next conversation, Respondent showed and gave to Lovell the part of the contract with the Union on the proce- dure for revocation of checkoff authorizations, and thus implicitly suggested this as another method of getting rid of the Union; and in their next conversation, Lovell told Respondent the checkoff revocation sugges- tion was too complicated, and Respondent explicitly suggested the circulation of the decertification petition and suggested the wording of the petition. Thereafter, a decertification petition, which had been typed on a company typewriter with very similar wording, was circulated to the employees in the plant by Lovell and employee Stout. Lovell's circulation was during work- ing hours, and Stout solicited some signatures during the day shift in violation of a plant rule prohibiting employees from being on the premises while not on duty, all with the knowledge and acquiescence of Re- spondent. The Trial Examiner discredited Respondent's deni- als of either explicit suggestion, and credited Lovell's account of both suggestions; and, correctly treating both as of one piece, found that both violated Section In reversing the 8(a)(1) allegation, the majority also relies on the fact that "apart" from the suggestion of a plant committee to replace the Union in violation of Section 8(a)(1), there is no evidence of union animus on the part of Respondent Do my colleagues seriously contend that such a viola- tion is not sufficient evidence of union animus9 8(a)(l).12 Accordingly, the Trial Examiner correctly found, contrary to the majority, that this unlawful con- duct rebuts Respondent's subsequent claim of a good- faith doubt of majority based on the decertification petition, and that Respondent's resulting withdrawal of recognition from the Union was a violation of Section 8(a)(5). 11 " In my opinion, the three conversations, culminating in the decertifica- tion petition suggestion, clearly show a concerted effort by Respondent to rid itself of the Union Assuming arguendo, however, as contended by the majority, that the decertification petition suggestion was not connected with the unlawful suggestion of a plant committee , the former suggestion by itself was unlawful so as to taint the petition See, e g , Kit Manufacturing Com- pany, Inc., 142 NLRB 957, W. R Hall Distributor, 144 NLRB 1285 " Trial Examiner also correctly relied, as further evidence of Respond- ent's bad faith, on Respondent's post-8(a)(1) refusal to even look at authori- zation cards proffered by the Union to prove its majority APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage you during a union's incumbency to form a plant committee to bargain collectively with us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of your own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. GAF CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334- 2921. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: This case was heard in Fort Worth, Texas, on May 5 and 6, 1971, pursuant to charges duly filed and served.' The complaint in Case 16- CA-4280 was issued on March 31, 1971. On April 22, 1971, the Regional Director issued an order consolidating Cases 16-CA-4280 and 16-CA-4328, and on that same date he also issued a consolidated complaint and notice of hearing. In its answers, duly filed, the Respondent conceded certain facts as to its business operations, but denied all allegations that it had committed any unfair labor practices. All parties appeared at the hearing and were given full opportunity to examine and cross -examine witnesses, to in- troduce relevant evidence, to argue orally at the close of the hearing and to file briefs . Oral argument was waived by the parties. On June 15, 1971, the Respondent, and, on June 16, 1971, the General Counsel, submitted briefs. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, with an office and plant at Arlington, Texas, is engaged there in the manu- facture and sale of photographic reproduction papers and film. During the course of the 12 months prior to issuance of the complaint, the Respondent shipped products valued in excess of $50,000 from its plant in Arlington directly to points located in States other than the State of Texas. During that same period the Respondent received goods valued in excess of $50,000 at the Arlington plant which were trans- ported to that location directly from outside the State of Texas. Upon the foregoing facts, the Respondent concedes, and the Trial Examiner finds, that GAF Corporation is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and the Trial Examiner finds, that International Union of Operating Engineers, AFL-CIO, Local 819 (herein called Union, or Local 819), is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The General Counsel alleged that all hourly production and maintenance employees at the Arlington plant, exclusive of clerical employees, quality control employees, guards, watchmen, technicians, professionals, and supervisors consti- tute an appropriate unit. In its answer, the Respondent conceded that the foregoing definition was satisfactory except as to the classification "all clerical employees." In that connection the Respondent urged that the unit description should be amended to read "all office clerical employ -es" so as to conform to a certifica- tion defining the unit at the Arlington plant, dated February 27, 1969, and arising out of Case 16-RM-387. At the hearing the General Counsel did not protest this proposed amend- ment. Accordingly, the Trial Examiner concludes and finds that the appropriate unit here involved is made up of all hourly production and maintenance employees at the Arling- ton plant, excluding office clericals, temporary employees, quality control employees, guards, watchmen, technicians, professionals, and supervisors. Pursuant to the aforesaid certification the Union has repre- sented the employees in the above-described unit since 1969. In that same year the parties entered into a collective-bargain- ing agreement which, by its terms was to be effective from May 13, 1969, to May 13, 1971. Early in February 1971,2 31 employees in the unit signed a petition which requested that the Board conduct a decertifi- cation election. At the time there were about 47 employees in the unit. On March 2, Terry Lee Stout, one of the em- ployees, filed a decertification petition with the Regional Office of the Board. G.A.F. Corporation, Case 16-RD-499.3 In a letter dated March 9, the Union notified the Company that it desired to meet and discuss amendments to the existing collective-bargaining agreement . Thereafter the parties met on two occasions. In charges filed in Case 16-CA-4280, the Union alleged, inter alia, that the Respondent had violated Section 8(a)(1) and (5) of the Act by urging its employees to form a committee to represent them as their bargaining agent. Later, in Case 16-CA-328, the Union filed charges that the Respondent, on and after March 18, unlawfully refused to bargain with it as the majority representative of its employees. B. The Alleged Violations of Section 8(a)(1) of the Act; Findings and Conclusions in Connection Therewith Employee Paul D. Lovell, the General Counsel's principal witness, testified as to a series of incidents that allegedly occurred during the period from January through March and on which the General Counsel has based the Section 8(a)(1) allegations in the complaint. Lovell's testimony will be set forth first and thereafter countervailing testimony offered by the Respondent. First to be considered are several conversations which Lo- vell had with Production Supervisor James A. Trebilcock during the months of January and February. According to Lovell, on an occasion early in January, when Trebilcock came to his work station he initiated a conversation with the production supervisor in which he told Trebilcock that many in the unit were unhappy with the Union's disposition of grievances and that many believed Local 819 was ineffective in resolving employee complaints about working conditions. According to Lovell, Trebilcock told him that as long as the Union was in the plant there was nothing he could do for them. Lovell testified that the production supervisor then went on to suggest that the employees establish a committee that would be made up of a representative from each of the three departments in the plant,' so that in the event anyone had problems or grievances such a committee could bring them to the Company. According to Lovell, Trebilcock told him that if only the employees on this committee and the Company were involved, an agreement as to any grievances would be more likely. Lovell testified that this conversation ended after he promised that at a later date he would talk with Trebilcock again about the union situation. i All dates are for the year 1971 unless otherwise indicated In Case 16-CA-4280, the original charge was filed on February 17, ' A few weeks earlier, on February 9, Stout had filed a decertification 1971, and a first amended charge on March 25, 1971 In Case 16-CA-4328, petition in Case 16-RD-497, which the Regional Office subsequently ad- the original charge was filed on April 19, 1971, and a first amended charge vised him had been prematurely filed on April 20, 1971 4 Viz, the coding, shipping, and converting departments GAF CORPORATION About the third week in January, Lovell prepared a written summary of the safety hazards involved in the operation of an electric lift then being used in his department and gave the list to Trebilcock. According to the employee, Trebilcock expressed his instant disdain for this action by immediately, and in Lovell's presence, discarding the summary. Lovell reported this experience with the production manager to Dennis Reed, chief steward for the Union, and the latter entered a protest with Trebilcock. The following day Lovell went to see Trebilcock, according to his testimony, to resume the discussion on "how to get the Union out of the plant." According to the employee, however, Trebilcock admonished him for having gone to Steward Reed about the alleged safety hazards of the electric lift, and stated "I don't think I can trust you any more, Paul ... I can't tell you anything else." Lovell testified that the conversation was very quickly con- cluded, but that before he left the office, Trebilcock stated that he wanted Lovell to have a section from the current collective-bargaining contract and thereupon gave him a page from a bound copy of the agreement.' Mr. Trebilcock testified that on several occasions during the early part of the year Lovell initiated conversations with him about the Union and current employee dissatisfaction with its performance. He denied that he ever gave any advice on what to do, other than to suggest that the employee discuss the problem with the Regional Office of the Labor Board. He did concede that during one of these discussions he gave Lovell the page of the contract referred to above. The page in question was received as an exhibit at the hearing. It contained some of the provisions on the subject of checkoff authorizations, their term, and the manner in which they could be revoked and also the whole article VII entitled "Union Representatives." This last article outlined the man- ner in which a shop committee would be selected, specified the need for representation on such committee of each shift and provided for the designation of stewards and for plant visiting rights for union representatives. Lovell testified that the next conversation he had with Mr. Trebilcock took place in the coding department where he was working. According to Lovell, at this time he told the production supervisor that, as to setting up a committee, the page of the collective-bargaining agreement which Trebilcock had given him was "too complicated for me to understand, and I didn't hardly know ... how to go about doing some- thing like that " Lovell testified that Trebilcock then told him that all that had to be done to oust the Union was to draw up a petition, secure the signatures of 51 percent of the em- ployees in the unit and file the petition with the Labor Board before February 15. According to Lovell, when he protested that he did not know how to draft such a document, Trebil- cock told him that all he would have to do would be to use as a caption such language as "We, the employees of GAF, members of Local 819, Operating Engineers, want the Labor Board to hold an election to decide the future of the Union and the employees." A petition with language very similar to the foregoing appeared in the plant on about February 8. It had been typed by another employee, Terry Lee Stout, a coworker of Lovell on the night shift, and, like Lovell, a night shift steward. Stout, had also gone to Trebilcock to express dissatisfaction with the Union's performance as the bargaining agent Ac- cording to Stout, in his discussions with the production manager, the latter told him that there was a legal way to get ' Although Lovell was a steward, the Union apparently had not supplied him with a copy of the collective-bargaining agreement For some reason, unexplained in the record, few copies of that contract were available Trebil- cock had one of those copies 173 out of the Union and to have the Union removed from the plant, but that he (Trebilcock) could not get involved person- ally, and that Stout would have to contact the Regional Office of the Labor Board for advice on the course of action to follow. Stout testified that thereafter he telephoned the Re- gional Office, and discussed the matter with a field examiner, whom he named. According to Stout, the latter counseled him as to the steps which would have to be taken if the employees wanted to have the Union decertified. Stout tes- tified that thereafter he drafted the petition in question, typed it in the plant office on one of the Company's typewriters and subsequently circulated it among the employees.' In addition to circularizing his coworkers on the night shift immediately after preparing the petition, Stout returned to the plant on the following day while he was off-duty and secured more signa- tures from employees on the day shift.' Thirty-one employees signed. Stout estimated that 90 percent of the signatures were secured either during a break period or at lunchtime. He conceded, however, that some employees signed the docu- ment while at work. On February 9, Stout filed a request for a decertification election at the Board's Regional Office. He testified that at this time he also left a copy of the employee petition with that office.' According to Stout, a day or two later he also gave Trebilcock a copy of the employee petition. Although Stout secured signatures from a substantial majority of the employees at work in the plant,' no supervisor made any effort to stop him in his efforts. He testified that he did not think any of them saw him while he was so engaged. On the other hand, Lovell testified that while at work on the morning of February 9, he had the petition in his possession and showed it to Robert Baugh, supervisor over the coding and converting department. According to Lovell, Baugh's only comment, after examining the document, was "That looks pretty good." Moreover, Stout's solicitation during the day shift violated a plant rule that forbade an employee from being on the company premises during off-duty hours. Trebil- cock conceded that he heard from one of the foremen that Stout "had been around taking up a petition during the lunch hour."10 However, no action was taken by either Trebilcock or any supervisor to prohibit Stout from pursuing this course of action at the plant while he was off-duty." LeRoy Neally, business representative for the Union, tes- tified that it was not until about February 9 that he first heard of the petition that Stout was circulating among the em- ployees, and that he received this information from Dennis Reed, the Union's chief steward. According to Neally, he immediately telephoned Trebilcock to protest the circulation c The petition read as follows "We, the undersigned employees of General Aniline and Film Corp, 2925 Ave E East, Arlington, Texas, petition the Federal Labor Board to come in and supervise a vote by all the employees as to whether we desire the International Union of Operating Engineers AFL-CIO Local 819 to remain in or leave our plant " From the record , it appears that most of the signatures from the day shift were secured during the noon lunch hour break ' Stout testified that a short while later, the Regional Office notified him that the decertification petition had been filed untimely. As a result, on March 2, Stout filed the decertification petition which initiated Case 16- RD-499 ' Trebilcock testified that during February there were about 47 em- ployees in the unit As noted earlier, 31 signed the petition 1° The quotation is from Trebilcock's testimony " Whereas Trebilcock readily conceded the existence of a rule which prohibited an employee from being on the plant premises when not on duty, he also testified that the rule was not enforced. On the other hand, two employee witnesses, Lucia Strickland and Michael R Followill, testified that they were aware of the company rule The latter employee also testified, credibly, that Stout seldom observed the rule 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such a petition throughout the plant on company time. Neally testified that Trebilcock claimed that he had no knowledge of any such activity at the plant, but that he would look into the matter. In fact, however, Trebilcock thereafter made no effort to conduct any investigation . At the hearing he testified that he presumed all the signatures had been secured during the lunchbreak. From his testimony it was evident that he made no attempt to ascertain whether any had been secured from the employees during working time. Trebilcock's denials that he had urged Lovell to circulate a petition among the employees and that he had suggested to Lovell the establishment of a plant committee to replace the Union were not persuasive . It is the conclusion of the Trial Examiner that Lovell's account of his conversations with the production supervisor on this subject was the more credible and that Trebilcock did, in fact, suggest to Lovell that Lovell should solicit his coworkers to sign a decertification petition and that he and the other employees should organize a shop committee to supplant the Union . Whereas it was evident that there was considerable employee dissatisfaction as to the performance of the Union during the latter part of the con- tract's term, the Act proscribes any conduct on the part of an employer that tends to interfere with or coerce the employees in reaching a decision as to what course of action to follow in seeking to oust or to retain a bargaining agent . Stout, who circulated the petition among the employees , was an intelli- gent, agressive individual, who was clearly dissatisfied with the Union and proposed to do something about getting it out of the plant . Lovell, who was far less sophisticated , also ex- pressed considerable dissatisfaction with the Union in his initial conversations with Trebilcock and the latter made sev- eral suggestions of a very concrete character as to what Lovell and his coworkers could do in petitioning to get the Union out of the plant and in setting up a plant committee that would engage in collective bargaining in its place . This action by Trebilcock, and the Respondent, constituted interference with the employees! free choice of a bargaining representative and violated Section 8(a)(1) of the Act. Sawyer d/b/a Sawyer Industrial Sheet Metal Fabricators, 103 NLRB 997 1002-03, enfd. 207 F.2d 503 (C.A. 5); Cedar Hills Theatres, Inc., 168 NLRB 871, enfd. 417 F.2d 612 (C.A. 5). The General Counsel also alleged that the Respondent promised benefits to the employees if they withdrew support from the Union and threatened reprisals against any em- ployee who assisted the Board in its investigation of unfair labor practices at the plant . This evidence will now be consid- ered. Lovell testified that in several conversations with Trebil- cock after the decertification petition was filed, he and the production supervisor discussed the advantage of not having a Union at the plant. According to Lovell, on one of these occasions after he told the supervisor that some union mem- bers had talked about the prospects of getting an extra holi- day in their next collective bargaining contract , Trebilcock assured him that "most likely they [the Company] could give us another holiday." Lovell further testified that Trebilcock suggested that, in any event, without the Union and without having to pay dues, the employees would be getting more money in their pockets and that this would amount to an automatic raise. Trebilcock denied having made any promises to Lovell as to what the Respondent would do if the em- ployees voted the Union out . He did concede that in a conver- sation with Lovell about this time he had commented , in jest, that if the employees were no longer paying dues to the Union, they would be getting that amount for themselves and that this would constitute an automatic raise. Lovell's testimony on this subject did not establish the thesis which the General Counsel sought to prove. Even in his direct testimony Lovell conceded that Trebilcock told him that "he couldn't promise me as an individual anything ... " Consequently, in view of the general vagueness of Lo- vell's testimony on this issue, as well as the denials of Trebil- cock, it is the conclusion of the Trial Examiner that, contrary to the allegation of the General Counsel, Trebilcock did not make any promises to Lovell as to what the Respondent would do for the employees in the event they voted against the Union in a decertification election. As noted earlier, on February 17, the Union filed an unfair labor practice charge . The General Counsel alleges that, dur- ing an investigation which the Regional Office subsequently conducted, the Respondent, through Trebilcock, threatened employees with reprisal if they cooperated in this investiga- tion. This allegation must rely , if supported by the record, on testimony which Lovell gave on the subject. According to Lovell, on about February 25, he had a con- versation with Trebilcock during which he asked the production supervisor what he should do if asked to meet with a representative of the Labor Board. Lovell testified that Trebilcock told him that "anyone that went to the Labor Board and told the truth in an affidavit would have nothing to fear, but anybody that went over there and told a pack of lies, that he would more or less get them ." According to Lovell, on another occasion early in March he engaged in another conversation with Trebilcock in which he brought up the matter of employees going to the Board and signing peti- tions. Lovell testified that at this time Trebilcock commented that if the Labor Board matter came to a hearing the names of all those who had given statements would be disclosed. Trebilcock's testimony was in substantial agreement with that of Lovell as to these incidents. According to Trebilcock, in the first instance he told Lovell that so long as the informa- tion which the individual gave was the truth he did not care who went to the Board, but that he would not like to feel "that anyone would stab me in the back ." Trebilcock further testified that when Lovell again questioned him about whether he should meet with anyone from the Labor Board that "I told him he didn't have to. He was not compelled to There was nothing in Lovell's testimony, or in any evidence presented by the General Counsel, to establish that during the period covered by the conversations related above, Lovell was under subpoena . On the testimony in the record it appears that Lovell questioned Trebilcock as to what he should do in the event the Regional Office questioned him in the course of its investigation of the unfair labor practice charge which the Union had filed on February 17. From the testimony of Lo- vell, it is apparent that the employee himself initiated the conversations and that, in effect, Trebilcock told him that, at that point, Lovell did not have to go to the Regional Office, that the Company would not order him to go, that whether he went was a decision for him to make, and that, in the event he did go, he should be certain to tell the truth , in which latter case, Lovell would have nothing to fear. Since Lovell was not under subpoena at the time, he was not, in fact, compelled to participate in the investigation, should he care to decline. Further, Trebilcock's injunction that, in the event Lovell dis- cussed the charges with the General Counsel's representative, Lovell should tell the truth was likewise unexceptionable. Nor was there anything sinister about Trebilcock's statement that in the event any employee went to such representative "and told a pack of lies, ... he would more or less get them." In the event an employee is under subpoena , an employer may not attempt directly, or indirectly, to dissuade an em- ployee from responding. On the other hand, if an employee GAF CORPORATION 175 is not at the time subject to such process , the decision as to whether the employee need cooperate with the investigation at any particular point is up to the individual . Further, and in any event, since the General Counsel was interested only in the truth as to what occurred , Trebilcock's strictures about what would happen to those who "told a pack of lies" could hardly be held coercive . Consequently , and in view of the foregoing, it is the conclusion of the Trial Examiner that the General Counsel has not proved that , during the course of the conversations which Lovell had with Trebilcock , the latter made any threats of reprisal or sought to intimidate Lovell from cooperating with the investigation then being conducted by the Regional Office. C. The Alleged Violation of Section 8(a)(5); Findings of Fact and Conclusions of Law in Connection Therewith The General Counsel alleges that at all times since March 18, 1971, the Respondent has unlawfully refused to bargain with the Union . The Respondent conceded that it has refused to recognize and negotiate with Local 819 since that time, but asserts that it had a good-faith doubt of the Union 's majority, and that it was under no obligation to negotiate until Local 819 demonstrated a majority in the representation proceeding then pending before the Board . To these issues we will now turn. Early in March , representatives of the Union and the Com- pany met at a motel not far from the plant . LeRoy Neally and J. T. Haynes appeared for the Union . The Respondent was represented by Richard F. Cavender, Sr., operations manager, and Al Kozak, another official of the Company. Some grievances which the Union had raised were discussed, including a union objection that the plant officials had en- couraged the circulation of the petition to request a decertifi- cation election and that the Company had unilaterally changed the working hours for the coding department. Neally testified that he told the company representatives that the Union also wanted to begin negotiations for a new con- tract, but that Kozak stated that the Company was aware of the decertification petition and that "to start negotiations would be useless ...."'Z Kozak did not testify . Cavender, however, did testify and he denied that the Respondent had refused to bargain at this meeting . On the other hand, Ca- vender also testified that "we questioned the Union's majority and said we were awaiting the results of the [decertification] petition which we were assuming was going to be finalized by an election " In a letter dated March 9, the Union formally notified the Company that, pursuant to the provisions of the existing collective-bargaining agreement , the Union desired to meet at some time prior to May 13 ," for the purpose of negotiating amendments to the current contract. Thereafter, in a communication dated March 18, Cavender acknowledged receipt of the Union 's letter and then stated: Please be advised that we have received a copy of a petition signed by 31 of our employees in the bargaining unit, advising us that they wish to have an election to determine whether or not your union should continue to represent them . Accordingly, we have a good faith doubt that you do continue to represent the employees in the bargaining unit. As you are also aware, there is now pending before the National Labor Relations Board a decertification peti- tion which will enable this matter to be decided. The " The quotation is from Neally's credible , uncontradicted testimony union has, of course, filed a blocking charge apparently in an effort to prevent determination of the representa- tion question. It would be our suggestion that in the interest of determining your negotiating status and thus whether or not your offer to negotiate is proper, you permit the election procedure to continue as comtem- plated by law. On about April 13, in response to a request for a meeting which Neally made in a telephone conversation with Ca- vender, the parties met again . Neally, Haynes, and two em- ployees represented the Union and Cavender and Trebilcock represented the Company . At the outset of the meeting Neally told the company representatives that he had come to demand immediate negotiations , that the Union had an exist- ing certification and that he could prove that the Union repre- sented a majority of the employees since he had authorization cards in his possession which he was prepared to produce at that time for their examination. Neally testified that he then laid the cards on the table , but that Cavender refused to look at them. At the hearing Cavender conceded that he refused to inspect the authorization cards which Neally produced at the meeting. Cavender testified that he told the union repre- sentatives that the Company had received a petition which had the signatures of a majority of the employees, thus in- dicating that they were opposed to the Union, and that, inso- far as the Company was concerned, at that point the question of majority representation was to be decided by the Labor Board. After the meeting was concluded , the Union sent a tele- gram to the Company wherein it reiterated the claim to hav- ing signed authorization cards from a majority of the em- ployees and restated its demand that the Company meet to negotiate a new contract. In a letter dated April 16, Cavender acknowledged receipt of the Union's telegram and stated: We have nothing to add to our letter of March 18, 1971 ... expressing our good faith doubt as to your con- tinued representation of the employees in the bargaining unit and the basis for such contention . The alleged signed authorization cards confirm that there is a ques- tion concerning representation , since on the one hand we have a petition signed by a large majority of the em- ployees requesting the election , and on the other you now allege cards in rebuttal . It is illegal, in our opinion, for us to determine the representation rights of our em- ployees. We continue to urge that the proper way to determine the question concerning representation is to proceed with an election in accordance with Board procedures. On about April 22, employee Stout distributed forms for the revocation of checkoff authorizations and approximately 11 out of the employees executed them . The revocation forms were signed as of April 23 and within the time allowed for this action by the "escape clause" of the existing collective-bar- gaining agreement. Stout testified that he sent one set of these revocations to the Union and gave the other set to the Com- pany. Late in April, Cavender directed a canvass of the company records to determine how many of the employees were still allowing the payroll office to checkoff dues for the Union This disclosed that as of April 30, 22 employees were still having the Company deduct union dues from their pay- checks, but that 25 other employees were not on checkoff. Mr. Cavender testified that the results of this survey rein- forced his conclusion that the Union no longer had support This was the expiration date of the existing agreement. from a majority of the employees in the bargaining unit. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After April 13, there were no further meetings between the parties. It is undisputed that the Respondent declined to bargain with the Union on March 18 and thereafter, on the ground that it had a good-faith doubt as to the Union's majority status. Significantly, the existing collective-bargaining agree- ment was in effect until May 13, 1971. The issues involved here are governed by the applicable law set forth in Terrell Machine Co., 173 NLRB 1480, 1481-82, enfd. 427 F.2d 1088 (C.A. 4). There, the Board restated the principle that a certified union, as the expiration of a collec- tive-bargaining agreement approaches, enjoys a rebuttable presumption that its majority representative status continues. Celanese Corporation of America, 95 NLRB 664, 671-672. Consequently, where such a presumption is applicable, the employer has a prima facie obligation to continue recognition and bargaining, and, conversely, his refusal to do so is, prima facie, a violation of Section 8(a)(5). The aforesaid presump- tion may be rebutted only if the employer establishes that at the time of the refusal the Union in fact, no longer repre- sented a majority, or that the employer had a good-faith doubt of the Union's continued majority. Finally, such an alleged doubt must be based on objective considerations and it must not have been relied upon for the sake of gaining time in which to undermine the Union. The Company here bases its asserted doubt as to the Un- ion's majority on the petition which Stout circulated among the employees and the request for a decertification election which he subsequently filed, as well as upon its analysis of the payroll records on April 30 and the resultant findings as to the number of employees on checkoff. None of the foregoing, however, adequately supports the Respondent's position. Earlier, it has been found in this Decision that Trebilcock, a plant supervisor, played an active role in seeking to induce employee Lovell to draft and circulate an antiunion petition of the type which Stout subsequently passed around the shop. Whereas Stout himself may have been moved, sincerely, to solicit his coworkers to follow his lead, Trebilcock's efforts to persuade employee Lovell that he should engage in this ac- tivity and work toward supplanting the Union with a plant grievance committee has already been found a violation of Section 8(a)(1) of the Act. Such interference with respect to a decertification petition has been held to rebut any subse- quent claim of good-faith doubt as to a Union's majority by the employer involved. Borren Clay Products Co., 174 NLRB No. 129, enfd. 419 F.2d 385-386 (C.A. 4). Entirely apart from the unfair labor practices committed at the inception of the decertification movement, and absent such practices, the filing of a decertification petition does not allow an employer to cease bargaining with an incumbent union. N.L.R.B. v. Rish Equipment Co., 407 F.2d 1098, 1100-1101 (C.A. 4); Boren Clay Products Co. v. N.L.R.B., 419 F.2d 385, 386 (C.A. 4). Here, however, that is what the Respondent did on March 18, and thereafter, when it refused to continue negotiations with Local 819. Furthermore, and in any event, the Board has held that while the pendency of a decertifica- tion proceeding may be the basis for a good-faith doubt, the employer must attempt to check the union's majority by other means. U. S. Gypsum Co., 157 NLRB 652, 654-657. The Respondent did not satisfy this requirement by the step which it took in this connection. Although on April 30 the Respondent, in its examination of the payroll records, found that a majority of the employees was no longer on checkoff, the Board has held that the lack of such authorizations is not substantial evidence that the Union, in fact, has lost the sup- port of a majority of employees within the unit. Gulfmont Hotel Company, 147 NLRB 997, 1001-2, enfd. 362 F.2d 588 (C.A. 5). Moreover, it is significant that at the meeting of the parties on April 13, the Respondent's representative chose to ignore the Union's evidence that it had secured signed au- thorization cards from a majority of the employees. Opera- tions Manager Cavender testified that he considered the cards "immaterial" to the issue as to whether the Union had a majority status. In so doing, the Respondent disregarded substantial evidence on which to base an informed judgment as to the Union's standing. In view of the foregoing findings, most particularly, the Respondent's unfair labor practices in connection with Tre- bilcock's efforts to have employee Lovell initiate an antiunion petition that would bring about an ouster of Local 819, as well as the ruling case law on the presumption of a continuing majority for an incumbent union such as the Charging Party in the circumstances presented by this case, the Trial Exam- iner concludes and finds that the Respondent did not have a good-faith doubt of the Union's majority on March 18, 1971, and thereafter, when it refused to bargain with the Union. Accordingly, the Trial Examiner concludes and finds that by this course of conduct on March 18, 1971, and subsequent thereto, the Respondent violated Section 8(a)(5) of the Act.10 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All production and maintenance employees at the Re- spondent's plant in Arlington, Texas, exclusive of office cleri- cals, temporary employees, quality control employees, guards, watchmen, technicians, professionals, and super- visors, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since February 27, 1969, the Union has been the exclusive representative, for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By refusing at all times since March 18, 1971, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, the Respondent has en- gaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5 By engaging in interference, restraint, and coercion, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. " In the able brief submitted by Counsel for the Respondent, the Trial Examiner's attention is directed to two recent cases, Seven-Eleven Supermar- kets, Inc., 189 NLRB No 127, and Neil Templeton, et at. v. Dixie Color Printing Co, Inc, et al, and NLRB, 444 F 2d 1064 (C A 5), decided May 26, 1971 The Trial Examiner has fully considered both of these deci- sions and has concluded that neither case is in point In Seven-Eleven Super- markets, the Board held that it was not a violation of the Act for the employer to insist on an election when the latter had a good faith-doubt as to the union's alleged majority There, however, and in contrast with the situation here, the employer engaged in no violations of Section 8(a)(1) during the preelection period Templeton concerns a ruling by the court of appeals on a procedural practice of the Board as to holding decertification petitions in abeyance during the existence of unremedied unfair labor prac- tices Whereas the charges out of which the instant case arose are "blocking charges" in the same sense as those that were involved in Templeton, the holding of the court in the latter case is applicable only to the issue as to whether the Regional Office should act on the decertification petition in Case 16-RD-499. That, however, is not an issue in the present unfair labor practice proceeding Consequently, Templeton is inapposite here. GAF CORPORATION 177 7. The General Counsel has not proved by a preponderance of the evidence that the Respondent interfered with, re- strained, or coerced its employees in the exercise of the rights safeguarded by the Act, except by the specific acts and con- duct found herein to have been violative. THE REMEDY Having found that the Respondent interfered with, re- strained, and coerced its employees in the exercise of their rights under Section 7 of the Act , the Trial Examiner recom- mends that the Respondent be ordered to cease and desist therefrom and to post notices so indicating. Having further found that the Respondent refused to bargain collectively with the Union as the exclusive representative of its em- ployees in the appropriate unit , the Trial Examiner will recommend that the Respondent be ordered to bargain col- lectively, upon request, with the Union as such representa- tive, and, if an understanding is reached, embody said under- standing is a signed agreement. [Recommended Order omitted from publication.]