Fox River Pattern, Inc.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fox River Pattern, Inc.' and Pattern, Mold and Model Makers' Association of Chicago and Vicinity , Affil- iated with the Pattern Makers' League of North America, AFL-CIO. Case 13-CA-10792 September 14, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 31, 1972, Trial Examiner Arnold Ord- man issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Fox River Pattern, Inc., Aurora, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. As amended at the hearing. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Trial Examiner: This case was heard before me on February 9, 10, and 11, 1972, based on charges filed August 2 and September 29 and on a complaint issued by General Counsel on December 30, 1971. The complaint alleges that Fox River Pattern, Inc.,' Respondent herein, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by laying off and later dis- charging its employee Keith Lambert, by refusing to bar- gain with Pattern, Mold and Model Makers' Association of Chicago and Vicinity, affiliated with the Pattern Makers' League of North America, AFL-CIO, herein called the Un- ion, and by engaging in other conduct in violation of its bargaining obligation and the statutory rights of its employ- 1 Stipulated by the parties as the correct name of the Respondent herein. ees. Respondent's answer denies the commission of the al- leged unfair labor practices. Before the hearing opened and at the hearing Respon- dent pressed motions seeking, in effect, summary dismissal of the complaint, and/or portions thereof. The content of these motions, the facts upon which they are predicated, and their disposition will be set forth hereunder. Upon the entire record in the case, upon my observa- tion of the witnesses, and upon consideration of the briefs filed by General Counsel and by Respondent, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is an Illinois corporation located in Auro- ra, Illinois, where it manufactures patterns, castings, and molds in metal and wood. Its gross revenues during the past fiscal year were in excess of $350,000, of which more than $50,000 worth was derived from goods furnished or services rendered to firms engaged in interstate commerce. Respon- dent admits, and I find, that Respondent is an employer engaged in commerce under Section 2(6) and (7) of the Act. Respondent further admits, and I find, that the Union is a labor organization as defined in Section 2(5) of the Act. 11. THE MOTIONS TO DISMISS A. The Relevant Facts Immediately upon issuance of the complaint and thereafter, Respondent pressed motions for summary dis- missal. Respondent urged, in substance, that it had com- plied with an earlier informal settlement agreement disposing of all the matters here in issue, that it had commit- ted no new unfair labor practices warranting the setting aside of the settlement agreement, and that valid petitions for decertification of the Union had been filed which raised a question concerning representation and negated any fur- ther obligation on Respondent's part to bargain with the Union. The relevant facts are, briefly, as follows: Between 1968 and 1971 Respondent and the Union were signatories to a collective-bargaining agreement in which Respondent recognized the Union as exclusive bar- gaining representative for Respondent's "Pattern Makers and their Apprentices."2 The agreement, which contained a union-security clause, terminated as of May 1, 1971, renew- able from year to year thereafter absent timely notice. Such a notice was given by letter dated February 26, 1971, from John Leonardson, business manager of the Union, to Re- spondent. The letter stated also: We have, under even date, sent similar notice to the Pattern Manufacturers' Association of Chicago and vicinity. In the past the Independent Shop Owners have awaited 2 The complaint alleges, the answer admits, and I find that, at all times material herein, all patternmakers and apprentice patternmakers employed by Respondent, excluding office clerical employees, guards, supervisors, and all other employees constitute an appropriate unit for purposes of collective bargaining. In the period under consideration here, February 1971, and thereafter, the unit consisted of approximately eight employees. 199 NLRB No. 12 FOX RIVER PATTERN, INC. 69 the outcome of our negotiations with the Pattern Man- ufacturers' Association and have abided by the results of such negotiations. If, however, this past practice is not acceptable to you, we shall be glad to meet with you at your earliest con- venience to discuss contract changes. Leonardson received a written reply from Respondent's le- gal counsel, dated April 21, 1971, advising that Respondent wished to bargain on an individual basis. On May 10, 1971, Leonardson wrote to Respondent enclosing a number of contract proposals. On May 18, 1971, Leonardson met with Robert Johnson, Respondent's presi- dent, and his brother, Bill Johnson, for a bargaining session. A long discussion, later more fully described, took place but no agreement was reached. The May 18 meeting was the only negotiation session held between Respondent and the Union. A further meeting had been scheduled for August 10, 1971. However, on July 27, 1971, Respondent's employee, John Schmidt, filed a petition (designated in the Board's records as Case 13- RD-819) asking that the Union be decertified. Accordingly, Respondent and the Union agreed to postpone further bar- gaining negotiations pending the disposition of the decerti- fication petition. On August 2, 6 days after the filing of the decertifica- tion petition, the Union filed its initial unfair labor practice charge alleging that Respondent had violated Section 8(a)(1) and (3) of the Act by engaging in antiunion conduct vis-a-vis its employees and by terminating the employment of Keith Lambert. On September 29, 1971, the Union filed an amended charge alleging, additionally, a refusal to bar- gain in violation of Section 8(a)(5) of the Act. _ No complaint issued, however, because of intervening settlement efforts. On October 20, 1971, Respondent and the Union entered into an informal settlement agreement, approved by the Regional Director of the Board. The settle- ment agreement contained a "Non-admission" clause in which Respondent denied the commission of any unfair labor practices. It further provided, however, that Respon- dent would, inter alia, refrain from engaging in the improper conduct in which it was alleged to have engaged, that it would make Keith Lambert whole for his lost earnings, that it would make up unpaid contributions to the Union's pen- sion and welfare funds, and that it would post appropriate notices. Respondent also undertook in the settlement agree- ment to bargain collectively with the Union, upon request, provided that: the dismissal of the petition in Case 13-RD-819 is either not appealed, or if appealed is sustained by the Board and no valid question concerning representation exists .... In this connection, the settlement agreement expressly pro- vided that Respondent "does not admit and specifically denies that there does not presently exist a question con- cerning representation and that the petition in Case 13- RD-819 should be dismissed." On the following day, October 21, 1971, the Regional Director dismissed the petition in Case 13-RD-819, as con- templated by the settlement agreement. On October 29, 1971, the dismissal was appealed to the Board and Respon- dent filed a brief in support of the appeal. For reasons not appearing, the Board did not rule on the appeal. Instead, it remanded the matter to the Regional Director "for further appropriate action, to wit, either process the instant petition or proceed to a definitive disposition of the refusal to bar- gain charge in 13-CA-10792 [the instant unfair labor prac- tice case]." While the appeal was still pending before the Board and before the remand, Respondent fulfilled its ob- ligation under the settlement agreement to make Keith Lambert whole for lost earnings, to make up its unpaid contributions to the pension and welfare fund, and to post notices. Because there had been no final action taken with respect to the decertification petition as provided in the settlement agreement, no bargaining negotiations were in- stituted. Acting pursuant to the Board's remand, the Regional Director, on December 30, 1971, withdrew his approval of the settlement agreement and issued the complaint in the instant case. On January 7, 1972, a second petition to decer- tify the Union was filed in Case 13-RD-833. On January 21, 1972, Respondent filed its motion, already described, to dismiss the complaint, and thereafter filed its answer to the complaint. On January 26, 1972, the Regional Director dis- missed the petition in Case 13-RD-833 and also the petition in Case 13-RD-819 which he had previously dismissed. On February 2, 1972, these dismissals were in turn appealed to the Board. On the morning of February 9, 1972, a few hours before the instant hearing opened, the Board ruled on the appeals and sustained the Regional Director' s dismissals? At the instant hearing the Union reiterated its contin- uing desire to bargain with Respondent. Respondent took the position it no longer had any obligation to bargain. The foregoing facts are undisputed. B. Analysis and Disposition of Respondent's Motions To Dismiss As already noted, Respondent's motion to dismiss the instant proceeding has several facets. Respondent's primary contention is that the issues presented,in the instant com- plaint were resolved by the settlement agreement of October 20, 1971, that Respondent complied fully with the terms of that settlement agreement prior to its revocation by the Regional Director, and that it has committed no new unfair labor practices-indeed, no new unfair labor practices are even alleged. Accordingly, Respondent argues that the Re- gional Director was precluded, under well-established prin- ciples, from setting aside the settlement agreement and that further proceedings herein are barred. Respondent cites cases in support of the principle that absent new and inde- pendent unfair labor practices, "a duly executed settlement agreement must be honored, if the Board's settlement pro- cedures have any meaning, unless the respondent's conduct demonstrates that the agreement has failed of its purpose." Jackson Manufacturing Company, 129 NLRB 460, 462 (1960). Accord: United Dairy Co., 146 NLRB 187, 189 (1964). And see N.LR.B. v. Tennessee Packers, Inc., 390 F.2d 787 (C.A. 6, 1968). 3 Under the explicit terms of the October 20 settlement agreement, Respondent's obligation to bargain with the Union, upon request, would have been activated by the Board's ruling of February 9 sustaining the dismissals However, as noted, the Regional Director had withdrawn his approval of the settlement agreement on December 30, 1971 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel, on the other hand, argues that a set- tlement agreement does not constitute a bar to an unfair labor practice proceeding on the same matter. In support of this proposition, General Counsel cites N.L.R.B. v. Lake Superior Lumber Co., 167 F.2d 147 (C.A. 6, 1948), where the court said at 150: ... Section 10(a) of the Act ... provides that the Board shall have exclusive power to prevent any person from engaging in any unfair labor practice, which power "shall not be affected by any other means of adjust- ment or prevention that has been or may be established by agreement, code, law, or otherwise." Although set- tlement agreements approved by the Board should be and usually are respected by it as a matter of policy yet the Board is not barred or estopped thereby as a matter of law from later proceeding under the Act. Wallace Corp. v. N.L.R.B., 323 U.S. 248, 254... . Accord: N.L.R.B. v. Zimnox Coal Company, 336 F.2d 516, 517 (C.A. 6, 1964). The respective authorities cited by the parties are not antithetical. There is no absolute bar to setting aside a settle- ment agreement and processing unfair labor practice charged in the same matter. Yet, it is equally true that the Board "as a matter of policy" has respected settlement agreements. The line of demarcation is plain. The design and the desirability of a settlement agreement is to lay dis- puted matters to rest. In a labor relations context, it is to restore, as effectively and expeditiously as possible, the la- bor peace which is the purpose of the Act to achieve. Where the settlement agreement achieves this end, it would be a disservice to the parties involved and to the policies of the Act to set aside a settlement agreement and resuscitate a dispute which has already been laid to rest. But this is true only where the dispute has been effectively laid to rest. Where, because of new and independent unfair labor prac- tices, or for other reasons, the settlement agreement "has failed of its purpose" (Jackson Manufacturing Company, su- pra), there is no estoppel to further Board proceedings. Wal- lace Corporation v. N.L.R.B., 323 U.S. 248, 254 (1944).' In my view the settlement agreement here has failed of its purpose. The unfair labor practice charges upon which the settlement was predicated alleged, inter alia, that Re- spondent had discriminatorily discharged an employee, had unlawfully withheld payments to a pension and welfare fund, and by this and other conduct, had refused to bargain with the Union. Apart from the "non-admission" clause, Respondent did undertake in the settlement agreement to make the discharged employee whole and to make restitu- tion to the pension and welfare fund, undertakings which the Respondent, as already noted, fulfilled. But on the crit- ° We may put to one side for purposes of the case General Counsel's suggestion that the Board would not be estopped in any event because in the instant case, unlike others relied on, the Board never put its own imprimatur on the settlement agreement. As noted, no complaint had yet issued, Board jurisdiction did not attach, and the power to approve or disapprove the settlement lay solely, under the statutory separation of powers, with the Regional Director and the General Counsel, as indeed, the face of the settle- ment agreement indicates On the other hand , under the same separation of powers the General Counsel cannot in the circumstances here presented mandate the Board to assert its jurisdiction without regard to the settlement agreement That choice is for the Board ical issue of Respondent's alleged refusal to bargain, the agreement, for reasons beyond the control of the parties, was not and could not be consummated. As already stated, Respondent conditioned its willingness to bargain upon fi- nal dismissal of the pending decertification petition. The face of the settlement agreement contemplated the dismissal of the decertification petition or, alternatively, the pro- cessing of that petition. If the Board, on appeal, sustained the Regional Director's dismissal of the petition, Respon- dent would have been obligated to bargain under the terms of the settlement agreement. If the Board, on the other hand, reversed the Regional Director, the decertification petition would have been processed and the question con- cerning representation duly resolved. The Board did neither and, instead, remanded the matter to Regional Director. Fault is not, and cannot on the basis of this record be, assigned in this regard. But the fact remains that the Board's action left the critical question concerning representation which lay at the heart of this controversy unresolved and, to that extent, frustrated the scheme of the settlement agree- ment. For the Board to abstain in these circumstances from asserting its jurisdiction to resolve the continuing controver- sy would be to compound and prolong the controversy which the settlement agreement was designed to resolve but for reasons beyond the control of the parties failed to re- solve. Under all these circumstances I conclude and find that the settlement agreement, to the extent the question con- cerning representation was not resolved, failed of its pur- pose, was properly set aside, and does not constitute a bar to the present proceeding. Respondent argues further that in any event it was relieved of its duty to bargain because of the pendency of the decertification petition in Case 13-RD-819 and the later petition in Case 13-RD-833. In essence, it is Respondent's position that in the absence of unremedied unfair labor practices an employer cannot be required to bargain with a union, even an established union, in the face of a decertifi- cation petition (Respondent's Memorandum In Support of Motion to Dismiss Complaint, p. 6, et seq.). As a proposition of law, the statement is not wholly accurate. The Board, quite recently, had occasion to reaffirm the principle that the "mere filing of a decertification petition does not pro- vide sufficient grounds for doubting an incumbent union's representative status, since such a petition need only be supported by 30 percent of the employees in a bargaining unit." GAF Corporation, 195 NLRB No. 11.5 Moreover, Respondent's contention is also vulnerable on its face since it is correctly premised on the absence of "unremedied un- fair labor practices" and cases are legion that the filing of a decertification petition will not serve as exoneration for an antecedent wrongful refusal to bargain. See, e.g., N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 600 (1969); Win- demuller Electric, Inc., 180 NLRB 686, fn. 1 (1970). This was precisely the situation here. The Regional Director, pursuant to the Board's remand, was required to determine whether to process the decertification petition or proceed to complaint in the unfair labor practice proceed- 5 The Board added the comment that "a petition filed by an uncoerced majority of the unit employees may establish such a basis," but Respondent does not urge that such a situation existed here FOX RIVER PATTERN, INC. 71 ing. Prerequisite to that determination was a decision as to whether the decertification petition presented a question concerning representation which could best be resolved by an election, or whether that route was foreclosed because Respondent had engaged in prior unfair labor practices including a refusal to bargain, as stated in the Union's un- fair labor practice charge. Pursuant to the investigatory and prosecutory responsibilities under Section 3(d) of the Act, the Regional Director found merit in the unfair labor prac- tice allegations of the charge and issued a complaint. Im- plicit in this determination was the conclusion that no question concerning representation existed and, according- ly, the Regional Director dismissed the decertification peti- tions,6 a dismissal which, this time, the Board on appeal sustained. It follows, and I find, that the decertification petitions filed herein do not bar the instant unfair labor practice proceeding.? Needless to add, the Regional Director's deter- mination is not binding upon the Board as to whether the alleged unfair labor practices actually occurred. That will be finally determined on the basis of the record in this proceed- ing. In addition to seeking summary dismissal of the entire complaint, Respondent asked separately for dismissal of the 8(a)(1) and (3) allegations of the complaint on the ground that the actions alleged in that regard had been fully reme- died by the settlement agreement and the payments made and other action taken by Respondent in compliance with that agreement. The short answer to this otherwise appeal- ing position is that these allegations are essential compo- nents of the refusal to bargain portion of the complaint (see par. VI); and Respondent in the settlement agreement itself, in its answer to the complaint, and at the hearing denied that it had engaged in the alleged unlawful conduct. In view of Respondent's position, to grant the motion to dismiss the 8(a)(1) and (3) allegations of the complaint would be to deny General Counsel his right and opportunity to litigate fully the refusal to bargain allegation. Respondent's request must be, and is hereby, denied.' III THE ALLEGED UNFAIR LABOR PRACTICES The evidence relating to the unfair labor practices 6It is noteworthy that the Regional Director in this instance reached the same conclusion which he had reached when he had initially dismissed the petition in Case 13-RD-819. 7 Respondent can draw no comfort from the Trial Examiner 's decision in Telautograph Corporation, Case 29-CA-2180. In that case, unlike the instant case, the Regional Director determined , after hearing that a question con- cerning representation did exist and the record was also devoid of any allega- tions of unremedied employer unfair labor practices 8 Respondent, upon denial of the foregoing motions, asked for restitution of the funds it had already paid out pursuant to the settlement agreement In part, the prejudice to Respondent flows from its own election to enter into a settlement without litigating the issue of liability, which it denies, and in part it flows from Respondent's otherwise commendable effort to make the payments in question before the final disposition of the decertification peti- tion which was pivotal to the consummation of the settlement agreement In any event, even assuming some prejudice to Respondent , the funds in ques- tion have been paid over to Keith Lambert and to the Pension Fund and this tribunal is without authority to direct restitution However, this ruling is without prejudice to the rights , if any, which may accrue to Respondent to obtain restitution before an appropriate tribunal Compare N L R B v Spre- wak, et al, 179 F 2d 695, 698 (C A. 3, 1950). alleged in the complaint derives largely from the testimony of three witnesses: Keith Lambert, an employee who was alleged to have been discriminatorily laid off and later dis- charged; Robert K. Johnson, president of Respondent; and John Leonardson, business agent for the Union. Their testi- mony, with occasional reference as relevant to other evi- dence of record, is summarized hereunder. A. The Testimony of Keith Lambert Keith Lambert, a metal pattemmaker, had been em- ployed by Respondent for about 13 years. He was an active member of the Union and on May 3, 1971, became chair- man of the Union's Aurora branch, following the resigna- tion of Donel L. Hale, a fellow employee, from that post. Lambert testified on direct examination for General Counsel that in early March 1971, Respondent's president, Robert L. Johnson, told him that Respondent had received a contract renewal notice from the Union and that Johnson did not intend to run a umon shop if he could help it. In another conversation on or about March 24, 1971, Johnson told Lambert that business conditions were quite rough, work was hard to come by, and if the employees would quit the Union, "both the shop and the union could earn more money, be better off." Iri a similar conversation a few weeks later, Johnson stated to Lambert that he no longer wanted to run a union shop, and if he were forced to sign a union contract, he would almost be forced to run out of work for the union help. In an interchange between Johnson and Lambert on or about April 15, the conversation, according to Lambert, took a different tack. Johnson said that he had offered to sell Donel Hale 10 percent of the company stock and that, contingent on the approval of his brother, Bill Johnson, who was away on vacation, Lambert would be afforded the same opportunity. Both offers were conditioned, however, on the offerees' withdrawal from the Union .9 On or about May 1, 1971, Johnson told Lambert that the contract with the Union expired May 1, that Respon- dent had discontinued its payments to the Union's welfare and pension fund, and that Respondent was prepared to set up its own program when and if the employees quit the Union.10 On May 5, 1971, 2 days after a umon meeting at which Donel Hale resigned his chairmanship of the Aurora branch and Lambert succeeded to that post, Lambert was laid off. 9 Donel Hale testified under subpena that Respondent had made several offers to sell him company stock, that he accepted the most recent offer in May 1971 and was making payments on a 10-percent stock interest, that at the time he was a member of the Union and chairman of its Aurora branch; and that, upon accepting the offer, he resigned from the chairmanship and dropped his union membership Hale initially denied emphatically that John- son had conditioned the stock offer on his resignation from the Union Hale was then confronted with an affidavit he had executed on September 9, 1971, 5 months earlier In the affidavit Hale stated, "Johnson did not tell me I would have to drop out of the union if I bought the stock in the company. He might have said I couldn't be a member of management and the union at the same time." When recalled as a witness for Respondent, Hale's last word on this subject was that he could not really "swear" whether Johnson did or did not tell him to drop out of the Union 10 The parties stipulated that Respondent discontinued the payments in question beginning May II and ending October 11, 1971 As already noted, Respondent made restitution for these missed payments pursuant to the October 20 settlement agreement. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lambert testified that he had come to the plant office to get another assignment, having finished the job he was working on-this was customary procedure-that Johnson told him there was no more work for him at that time; and that he would be laid off until work became available at which time he would be called back. Lambert was the only employee laid off and at the time was senior in years of service to all the other employees. Lambert returned to work on May 24 pursuant to Respondent's call several days earlier asking him to return. A few days later, according to Lambert, Johnson told him that part of the reason was to teach him what it was like to be out of work, that Lambert was the most prounion man in the shop and the hardest to convince to drop out of the Union. There was also an interchange at this time relating to the fact that Lambert had elected to take unemployment compensation for the period of his layoff rather than use his vacation time for that purpose. The next event of importance, according to Lambert, was a meeting in Johnson's office on June 4, 1971, imme- diately after working hours. This meeting, which followed by about 2 weeks the negotiating session of May 18 between Johnson and Leonardson, was attended by Robert Johnson and his brother, Bill Johnson, and by several of the employ- ees including Lambert. As Lambert related the sequence of events at the meeting, Robert Johnson did virtually all the talking for management. He asked each employee present what he thought he was worth and why. Some of the men replied. Johnson noted that the metalworkers were easy to replace and were probably getting too much money. Then Johnson outlined the terms of employment he felt he could give the employees if and when they dropped the Union. These included a 35-cent-per-hour increase rather than the 60-cent increase the Union was asking; a 2-week vacation instead of a 3-week vacation; holiday pay to be paid as the holidays occurred rather than quarterly; and certain im- provements in the employees' insurance coverage. Johnson then asked each employee individually whether he would accept the proposal. Some of the employees responded af- firmatively but Lambert asked for time to make his deci- sion. In response to a question whether Respondent would sign a contract, Johnson replied that if the employees drop- ped the Union, a contract was not needed. During the next few weeks Johnson, according to Lam- bert, pressed Lambert for his decision on the June 4 propos- al, indicating on one occasion that the delay was prejudicial to the employees in the matter of insurance coverage and pension payments. The last such incident occurred on June 16, 1971, when Lambert came to the office for a new job assignment. Johnson again asked Lambert whether Lam- bert would accept Johnson's June 4 proposal. Lambert re- plied that he had decided not to quit the Union. Johnson then told Lambert that Lambert might as well pick up his tools and leave. Lambert did. Lambert was extensively cross-examined. He acknowl- edged that in his affidavit furnished to a Board investigator on August 9, 1971, relating to the events under considera- tion here, there was no reference to the two conversations with Johnson in March 1971, already set forth herein, and also no reference to Johnson's statement on or about May 1 that Respondent would set up its own welfare and pension program if the employees quit the Union. Lambert also acknowledged that when Johnson offered to sell him com- pany stock, Johnson did mention that Respondent had for years been contemplating a method for perpetuating the business by bringing employees into an ownership status by selling them a stock interest. Lambert also testified on cross-examination that at the time of his May 5 layoff there was little, if any, metal work available in the shop. With reference to the June 4 meeting between Johnson and the employees, Lambert testified that Johnson, in addition to outlining his proposals to the em- ployees, also discussed economic conditions in the industry, and further testified that Johnson might have outlined the proposals and counterproposals made at the May 18 nego- tiation session with Leonardson. B. The Testimony of Robert Johnson Robert Johnson's testimony, summarized hereunder, is in several respects in conflict with the testimony of Keith Lambert. Asked whether he had ever made a statement to Lambert that if the employees left the Union, things would be better, Johnson replied, "No, I don't think I ever made that statement." Johnson also testified that he could not recall telling Lambert at any time that he no longer wanted to run the plant with a union contract. On the other hand, on cross-examination by General Counsel, Johnson testi- fied that he had told Lambert at one time that "I wished to hell they'd drop out of the Union and get this thing over with." Johnson confirmed that he had offered Lambert a 10- percent interest in the company stock subject to his brother's approval, but denied that the offer was condi- tioned on Lambert's withdrawal from the Union. According to Johnson, the sole motivation for the offer was Respondent's desire to insure perpetuation of the business by bringing employees into an ownership capacity. Johnson testifed that he selected Lambert because "he is a very good worker, very conscientious worker, very efficient worker." Johnson said the same considerations motivated a stock offer to employee Hale and an earlier offer to Aldridge. Employee Wickman also was given a stock offer." With respect to his June 4 meeting with the employees, Johnson explained that such meetings were unusual. Ac- cording to Johnson, a union meeting had been held before June 4 among the employees and Johnson had inquired of employees "what the heck had happened" there. Johnson testified that he was told the employees knew nothing of Respondent's proposals, that they were told merely that Johnson "likes to gripe" and would eventually sign the un- ion contract. Johnson stated that he responded to the em- ployees that he had no chance of negotiating, that the Union would make him sign the contract or else, and that he fur- ther told the employees, "I don't know why the hell you just don't drop out and get it over with." According to Johnson, several of the employees then asked for a meeting with Johnson to find out what was going on in the bargaining 11 Aldridge, a supervisor, withdrew from the Union when he purchased his stock . Employee Hale, as already noted, resigned from the chairmanship of the Union's Aurora branch and dropped his union membership. FOX RIVER PATTERN, INC. 73 negotiations between Respondent and the Union and John- son scheduled the meeting of June 4. Johnson's account of the June 4 meeting was not too different from that given by Lambert. Johnson stressed, he testified, Respondent's right to sign or not to sign a contract and the employees' right to communicate their views to the Union. Johnson confirmed that he had discussed wages at the meeting and that he had asked the employees individ- ually what each wanted in wages and what each thought he was worth. Johnson denied having said that metal pattern- makers could be easily replaced but admitted having said that the type of work the metal patternmakers were actually doing could be performed by tool-and-die makers or ma- chinists at a much lower rate of pay. Johnson corroborated Lambert's testimony that he, Johnson, had discussed Respondent's proposal concerning holiday pay, and modifi- cations in the insurance plan, and in the welfare and pen- sion schemes. Johnson also admitted talking to the employees about what he was prepared to offer them if there were no union. Specifically, Johnson testified: I didn't offer anything to the men. When they asked me what I would do if I didn't have a union or if the union won't give us a contract, whatever the whys and wherefores were, I told the men I can't discuss the details of what they would get. All I could do was give them something comparable which everyone would be sat- isfied with. [Emphasis supplied.] With respect to Lambert's layoff and subsequent termi- nation Johnson said the May 5 layoff was for lack of work. Johnson denied later telling Lambert that the layoff was to teach Lambert a lesson because he was the most prounion man in the shop. Johnson said he merely noted his unhappi- ness that Lambert had put in a claim for unemployment compensation rather than utilize his vacation time as John- son had suggested. Johnson confirmed that he had recalled Lambert to work after the May 5 layoff, and that during this period he had several conversations with Lambert relating to whether Lambert would quit his job to go into the con- tracting business with a friend. On June 16, according to Johnson, Lambert came into the office for another job as- signment and Johnson stated that no work was available. In the ensuing conversation, Johnson testified, Lambert said he had a job lined up with his friend and could go to work anytime. Johnson then responded, "Well, as long as there isn't anything to do here, now would be as good a time as any to leave.."12 Johnson denied asking Lambert at this or any other time whether Lambert had decided to quit the Union.13 12 Lambert, recalled as a rebuttal witness, agreed that he had had a discus- sion with Johnson on June 16 about lining up a new job . But Lambert testified that this discussion was after Johnson had told him to pick up his tools and leave. According to Lambert, he told Johnson that he had arranged to work for his contractor friend when work was available In fact, Lambert did work for his friend in June and July on a part-time basis at $4 per hour compared with the $6.90 hourly rate Respondent was paying him. Some time thereafter Lambert returned to Respondent 's employ. On September 3, 1971, however, Lambert voluntarily quit. 13 Donel Hale testified that he saw Lambert picking up his tools on the day in question, and that in response to his inquiry Lambert stated he had quit; that there was no more work to be done ; that this was just as good a time as any, and that he had something lined up to build houses for a fellow. C. The Testimony Concerning the May 18, 1971, Bargaining Meeting John Leonardson, union business agent, and Robert Johnson were the respective protagonists for the Union and Respondent at the May 18 meeting, the only bargaining session held between the parties. The only other person present was Robert Johnson's brother, Bill Johnson, who participated minimally and was not called to testify. Respondent had already been furnished with a copy of the Union's contract proposals when Leonardson called, Robert Johnson to arrange the bargaining meeting. Accord- ing to Leonardson, Johnson initially expressed some reluc- tance to meet, indicating that he had decided to follow a different route, but finally Johnson acceded to Leonardson's request for a face-to-face meeting. The meeting was held at 3 p.m. in Johnson's office. Leonardson testified that before the parties were even se- ated Johnson indicated that he was really not interested in talking about a new contract because he was not about to sign a new contract. Johnson further stated, according to Leonardson, "I want to get you fellows the hell out of here. I don't mean you, I mean the union." Johnson explained that Respondent had for some time been considering run- ning the business as an owner-operated shop without any employees. Johnson further stated, according to Leonard- son, that business was not good, that the union proposals which he had received were going to be too costly, and that the owner-operated business Respondent was contem- plating would be more economical. While initially reluctant to discuss specific proposals, Leonardson testified, Johnson did at Leonardson's insistence discuss wages and other con- ditions such as vacations, paid holidays, and welfare provi- sions including insurance and pension fund proposals. Essentially, Johnson's position with respect to these several items, according to Leonardson, was that the union propos- als were either too costly or, as in the case of holidays and vacations, not adapted to the needs of Respondent's busi- ness. With respect to welfare provisions, hospitalization, sick benefits, life insurance, and pension provisions, John- son suggested that on the basis of his talks with experts he could himself duplicate exactly what the union contract provided. Leonardson testified that he presented counter- arguments to Johnson's presentations. But it was apparent that the parties were not in agreement at this meeting and Leonardson so noted. Johnson agreed. Because the hour was late, Leonardson prepared to leave. Leonardson testified that he made a comment to the effect, "I'll be seeing you" and Johnson replied, "I don't know what for." According to Leonardson, he "jokingly" said to Johnson, "You mean, you would throw me out if I come back?" Johnson replied, "Oh, no, not that." Johnson's version of the meeting of May 18 differed in some particulars from Leonardson's version. Johnson indi- cated, contrary to Leonardson, that he wanted to meet with Leonardson and that he wanted to negotiate his own con- tract. Johnson confirmed that he and Leonardson had dis- cussed all the points Johnson was "at odds with." According to Johnson, Leonardson was in sympathy with Respondent but stated that he could do nothing about it, that his job was to submit what the employees wanted, but that he and John- 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son would work out a contract. Johnson testified that at the conclusion of the meeting he said "in a joking fashion" to Leonardson, "It looks to me like the only [sic] I get what I want is to get rid of you." Johnson denied stating to Leonardson that he had no intention of signing a union contract or that his sole inten- tion was to get the Union out. D. Analysis and Disposition of the Evidentiary Issues As the foregoing summary of the evidence reveals, there are testimonial conflicts in,several areas. This is hardly surprising inasmuch as we are dealing here with numerous conversations between Lambert and Johnson extending over a period of several months and with two long meetings; one, the May 18 bargaining session between Leonardson and Johnson, and the other, the June 4 meeting between Johnson and the employees. I believe the three critical wit- nesses-Lambert, Johnson , and Leonardson-were on the whole making a commendable effort, notwithstanding a natural self-interest, to narrate faithfully their recollections as to these matters. That their recollections vary somewhat is not surprising. What is significant, however, is that the testimonial differences are often more semantic than real, more a matter of emphasis than substantive content. It would serve no useful purpose, in my view, to resolve the testimonial differences as to each of the many conversa- tions between Johnson and Lambert . Lambert recalled that Johnson had emphasized his adamant opposition to enter- mg into a union contract, his conviction that if the employ- ees quit the Union they would be better off, and that if Respondent were forced to sign a contract work would "run out" for the union employees . Johnson denied or could not recall making the statements attributed to him. On the other hand, Johnson did recall telling Lambert at one time that "I wish to hell they'd drop out of the Union and get this thing over with." Johnson admittedly used almost the same language when, as he testified, he talked to his employees before the June 4 meeting . His words then were, "I don't know why the hell youjust don't drop out of the Union and get it over with ." In the light of all this testimony , including Johnson's own admissions, I am satisfied, and I find that, whatever the precise words used , Johnson made clear to Lambert, and indeed to other employees, that he did not want the Union, that the employees should drop the Union, that they would be prejudiced if they remained with the Union, and would be better off without it. This finding is reinforced when we consider the stock offers. I credit Johnson's testimony that he had for some years contemplated a changeover in Respondent's opera- tions to make it an owner-operated business and that a few years earlier he had sold a 10-percent interest in the business to Aldridge, a supervisor in Respondent 's employ. I am satisfied, however, that this idea had become dormant and that Johnson suddenly seized upon and revived it in order to frustrate the Union's effort to obtain a new collective- bargaining agreement . The timing of the offers could not have been wholly coincidental especially in view of Johnson's admitted and contemporaneous assertions that he saw an "owner-operated" business as an alternative to a union contract. Lambert testified that the stock offers to him and to Hale were conditioned on their dropping out of the Union. Hale could not recall and vacillated as to whether Johnson did or did not tell him that stock ownership and union membership were incompatible . Wickman did not testify. Johnson denied that he had conditioned the stock offers. Yet it is clear that Aldridge had dropped his membership, that Hale did so also, and that the tentative stock offer to Lambert who refused to drop his membership never ma- tured. On the whole record I am satisfied , and I find, that explicit or implicit in Johnson's stock offers was the require- ment that the offerees drop their union membership. It is in this context also that the bargaining session of May 18 between Leonardson and Johnson must be ap- praised . As already noted, Johnson testified that he told Leonardson he wanted to meet to negotiate his own con- tract and that he discussed all the points in the Union's proposal with which he was at odds. According to Johnson, Leonardson was sympathetic but insisted on the Union's proposals. On the other hand, on Johnson's own version Leonardson said that they could work out their contract problems. Nevertheless, at the end of the meeting Johnson admittedly told Leonardson that it looked like the only way Johnson could get what he wanted is "to get rid of you." Asked by his counsel whether this was said "in a joking fashion," Johnson replied, "Yes, I would say so." Leonardson testified, however, that Johnson was ini- tially reluctant to meet at all, that Johnson's remark about getting the Union out was made at the outset of the meeting, that he was not about to sign a new contract, and that he had for some time been contemplating running the plant as an owner-operated shop without any employees. According to Leonardson, at the end of the meeting in which proposals and counterproposals were discussed, Leonardson prepared to take his leave with the comment that he would see John- son again and Johnson responded, "I don't know what for." Appraising this testimony against the background of record including Johnson's repeated statements about get- ting rid of the Union and his efforts by stock offers to enlist the support of Lambert, Hale, and Wickman, I find that Johnson's participation in the meeting of May 18 did not meet the standards of good-faith bargaining. I find that Johnson in effect rejected Leonardson's suggestion, which Johnson acknowledged, that they could work out a con- tract, and that Johnson's bargaining position was really fixed by his position expressed either at the beginning of the meeting according to Leonardson or at the end of the meet- ing according to Johnson that the answer to Respondent's problem lay in getting rid of the Union. The record estab- lishes in my view that Johnson did not enter into, or conduct the negotiations at, the meeting of May 18 with the intention of reaching an agreement. This conclusion is fortified by a review of Respondent's conduct after the May 18 meeting. Within a few weeks thereafter Johnson admittedly inquired of employees "what the heck had happened" at a union meeting. He testified further that he was told the employees had not been in- formed of Respondent's proposals. It was at this point, Johnson said, that he told the employees they ought to drop out of the Union and get it over with. Johnson then sched- FOX RIVER PATTERN , INC. 75 uled the meeting of June 4 with the employees , an unusual practice, as he acknowledged, which came about because, he said, the employees asked for such a meeting. On the basis of Johnson's own testimony and even without regard to Lambert's testimony already summarized , it appears that Johnson discussed with the employees the Union 's propos- als and his counterproposals . Johnson also admitted asking the employees individually-no union representative was present-what each employee wanted in wages and what each thought he was worth . Johnson denied stating to the employees that metal patternmakers could be easily re- placed but admitting saying that the type of work the metal patternworkers were doing could be performed by tool-and- die makers or machinists at a lower rate of pay . Finally, Johnson vouchsafed that he had told the employees in gen- eral terms what he was prepared to offer them in the way of terms and conditions of employment absent the Union. Johnson sought to justify this conduct on the basis that the employees had asked him for this information. It is apparent, therefore, and I find, on the basis of Johnson's own testimony and without regard to Lambert's testimony which was even stronger, that Johnson on June 4 engaged in individual bargaining with the employees with- out the presence of the Union as their designated represent- ative, and otherwise pressured the employees to dissuade them from their union affiliation. Remaining for consideration is the evidence relating to the layoff of Keith Lambert on May 5, 1971, and his subse- quent discharge on June 16, 1971. Lambert's May 5 layoff came about when he finished the job he was working on and he reported to Johnson for another assignment . Johnson told Lambert there was no other job available and Lambert was laid off. Lambert was recalled a few weeks later and reported back on May 24. The record is clear that this was a very slow period in Respondent's business and Lambert's own testimony indi- cates that there was little, if any, metal pattern work avail- able on May 5. It appears, also, however, that Keith Lambert was the most senior of the employees in Respondent's employ, that layoffs were unusual, and that Johnson regarded Lambert as a highly competent workman. These circumstances are not wholly dispositive of the issue. Lambert's basic expertise was on his own admission as a metal patternworker, most of that work was done by Lam- bert and one other employee, Franz Lais, and at the time of the May 5 layoff Lais was already working on the only metal patternjob left in the shop . So far as appears, Respon- dent did not apply a rule of seniority with respect to layoffs. Significant evidence in this regard, however, flows from Lambert's testimony that on or about May 28, a few days after his return to work, Johnson told him that part of the reason for the May 5 layoff was to teach Lambert what it was like to be out of work, that Lambert was the most prounion man in the shop and the hardest to convince to get out of the union. Johnson denied making these statements and said that the only subject matter discussed at the time was Johnson's disappointment that Lambert had elected to collect unem- ployment compensation for the period of his layoff rather than use his vacation time for that period. Lambert also recalled discussing this matter with Johnson. In view of Johnson's other conduct and statements, I have no question that Johnson was aware of Lambert's stong union attachments and that he was disappointed that Lambert-and for that matter all the other employees-did not drop out of the Union. I am also persuaded that because of this attitude Johnson may well have expressed sentiments akin to those Lambert ascribed to him. Yet I am satisfied that the real reason for the May 5 layoff was the lack of work. Johnson did not make reference to Lambert's union sympathies at the time of the layoff. On the contrary , he told Lambert at the time , as Lambert testified , that he would call Lambert back when work became available and, in fact, did so. I find a lack of probative evidence to establish that the May 5 layoff was discriminatorily motivated. The June 16 discharge was of a different character. Essentially, it arose from a similar situation. Lambert had again run out of work and asked for a new assignment. So far as appears, again no work was available . However, the situation in certain respects was markedly dissimilar from the May 5 situation . As of June 16, the May 18 bargaining session had already been held as had the June 4 meeting between the employees. Johnson had plainly expressed to Lambert and other employees that they drop out of the Union and "get this thing" over with . Donel Hale and Wickman had already accepted stock offers, and Hale, at least, had withdrawn from the Union . Lambert, on the other hand, was still tenaciously resisting. According to Leonardson , Johnson on June 16 pressed his inquiry as to whether Lambert would quit the Union. Lambert said he would not and Johnson thereupon told Lambert that he might as well pick up his tools and leave. Johnson's version of the conversation differed . He testified that he told Lambert there was no work available, that Lambert said he had ajob lined up with a friend and could go to work anytime whereupon Johnson responded , "Well, as long as there isn't anything to do here , now would be as good a time as any to leave ." Lambert confirmed that he had talked with Johnson on June 16 about lining up a new job, but said that this subject came up after he was told to pick up his tools and leave, that Johnson then asked him whether he would have anything to do, and he replied that he had arranged with a contractor friend to work for him when work was available. In fact, Lambert did so some work on a part -time basis for his contractor friend during June and July. His hourly rate of pay was $4 as compared to the $6 .90 hourly rate Respondent paid him. Some time thereafter, at a date not disclosed by this record , Lambert returned to Respondent's employ and worked until September when he voluntarily quit. I find Lambert's account of the June 16 conversation credible. I believe that work for Lambert was unavailable on June 16. On the other hand, I find it implausible that, as Johnson's testimony suggests, Lambert in effect quit be- cause he had another job lined up. Lambert would hardly have given up a $6.90 per hour job for part-time work at $4 per hour. On the other hand, it is wholly plausible that, having been discharged , he would have told Johnson, upon the latter's inquiry that he had lined up some work with his contractor friend when such work was available . For Lam- bert to make such an arrangement was wholly reasonable 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in view of the fact that work at Respondent's plant was short and layoffs were likely. I find that the conversation of June 16 took place as Lambert testified. Moreover, it is significant that Johnson did not on June 16, as he had on May 5, merely lay off Lambert until work became available again. Certainly, this would have been the reasonable course to follow for an employee whom Johnson described as "a very good worker, very conscientious work- er, very efficient worker." A fair inference, and the infer- ence I draw, is that Johnson rejected this approach and chose the alternative of discharge because Lambert stub- bornly resisted Johnson's obvious and manifested desire that Lambert quit the Union. I so find."' E. Concluding Findings on the Alleged Unfair Labor Practices 1. Paragraphs V, VII, and VIII of the complaint allege that Respondent laid off Keith Lambert on May 5, 1971, and terminated his employment on June 16, 1971, for refus- ing to drop out of the Union, thereby violating Section 8(a)(1) and (3) of the Act. For reasons already stated, I find that the preponderance of the evidence on the whole record warrants a finding of unlawful interference and discrimina- tion within the meaning of those statutory provisions with respect to the June 16 termination. I find further that the preponderance of the evidence does not support such a finding with respect to the May 5 temporary layoff. 2. Paragraphs VI, VII, and IX of the complaint allege that Respondent refused to bargain collectively with the Union in violation of Section 8(a)(1) and (5) of the Act. This allegation is predicated on a pattern of conduct by Respon- dent including direct negotiation with the employees by the offer of stock and other benefits; by the discriminatory layoff and termination of Keith Lambert; by threats of layoff if the employees did not drop out of the Union and a union contract resulted; by the unilateral discontinuance of payments to the pension and welfare funds; and by the refusal to bargain in good faith at the negotiating session on May 18, 1971. I find that the 8(a)(5) and (1) allegations of the com- plaint are sustained on this record. Preliminarily, it should be noted that the existence of an appropriate unit of pattern- makers and apprentice patternmakers employed by Re- spondent and consisting of about eight employees is disputed. It is likewise undisputed that as of May 1, 1971, the termination date of the union-security agreement be- tween Respondent and the Union, the Union was the ma- jority representative of the employees in that unit. On familiar principles and absent objective evidence of a 14 Militating against this conclusion is the testimony of Hale who was called as a witness for Respondent shortly before the close of the hearing Hale's role in the instant controversy between Respondent and the Union has already been described . As already noted, Hale testified that he saw Lambert picking up his tools on June 16, that Lambert said he had quit, that there was no more work to be done, and that this was as good a time as any . Lambert added, according to Hale, that he had something lined up to build houses for a fellow . The only significance of Hale 's testimony rests in the fidelity of his recollection that Lambert said he had "quit " Hale was not present at the conversation between Johnson and Lambert. Under these circumstances and for reasons already stated, I find Hale's recollection in this regard of insuffi- cient probative value to overcome the findings heretofore made change, the continued existence of that majority is pre- sumed and Respondent's obligation to bargain continues. Respondent does not really quarrel with this principle, but it does argue that both the presumption of continuing ma- jority and the continuing obligation to bargain were dissi- pated when Employee Schmidt filed his decertification petition on July 27, 1971. For the reasons and under the authorities already set forth, this contention does not aid Respondent. Apart from the fact that the mere filing of a naked decertification petition does not establish a majority, the petition in issue was not filed until July 27, long after the unfair labor practices here found occurred, and any loss of majonty which might have occurred thereafter is attrib- utable to these unfair labor practices.15 The evidence in support of the unfair labor practices is cogent and, as already indicated, is based, to a considerable extent, on the testimony of Robert Johnson, Respondent's president. Without recapitulating that evidence, summariz- ed in the preceding sections, I have found that Johnson made clear to Lambert and to other employees that he did not want the Union, that the employees should drop the Union, that they would be prejudiced if they remained with the Union, and that they would be better off without it. I have also found, on the basis of the previously summarized evidence, that Johnson's offer to several employees to sell them company stock was conditioned explicitly or implic- itly on their dropping out of the Union. Employees Hale and Wickham, two of the approximately eight employees comprising the appropriate unit, did purchase company stock and Hale, at least, did drop out of the Union. This pattern of conduct would preclude the likelihood of there- after holding a fair election, even without the elimination of Keith Lambert, a staunch union adherent, whom I have heretofore found to have been discnminatonly discharged on June 16. But this conduct does not stand alone. With respect to the May 18 bargaining session between Johnson and Le- onardson, the findings are again based in. substantial part on Johnson's own testimony. On all the evidence pertaining to that meeting, I conclude that Johnson's participation did not meet the standards of good-faith bargaining but rather was characterized by his fixed predetermination to solve his problem by getting rid of the Union. This was confirmed when Johnson later admittedly interrogated the employees 15 In its answer to the complaint, Respondent pleaded not only the peti- tions for decertification (the second petition for decertification was filed on January 7, 1972) but also the existence of "other objective evidence" of loss of majonty. Respondent proffered no such "objective evidence" during the course of the 3-day hearing However, after both General Counsel and Re- spondent had rested their respective cases and just before the formal closing, Respondent requested permission to reopen the evidentiary portion of the hearing to recall a witness for a single question in this regard. Permission was denied but an offer of proof was invited. The offer of proof reads. If Mr Johnson were permitted to testify, he would testify that on or about the time the decertification petition was filed by employees [sic] in Case No. 13-RD-819 on or about July 27, 1971, employee John Schmidt and others informed him voluntarily that they no longer wanted this union to represent them, and that this was the opinion of the majori- ty of the employees in the appropriate unit If this belatedly proffered evidence were or should be admitted, opportunity to meet it would have to be afforded General Counsel. However, assuming arguendo that such evidence were admitted and had probative value, it would be subject to the same frailty as the decertification petition ; i e , it has reference to events occurring on or about July 27, long after the unfair labor practices here found were committed. FOX RIVER PATTERN, INC. 77 as to what went on at a union meeting, met with the employ- ees on June 4 without their union representative, asked them individually what they wanted in wages, and told them in broad outlme what he would grant them in wages and work- ing conditions if there were no union in the plant. Johnson stated that he called the June 4 meeting and made his offer only because the employees asked for the meeting and asked for his offer. However, uniform authority since Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678,683-684 (1944), precludes such direct negotiation with employees who are represented by a bargaining agent. Finally, Respondent's discontinuance of payments to the pension and welfare fund on May 11, 1971, without prior consulta- tion with the Union, was a forbidden unilateral change in a term and condition of employment. The expiration of the collective-bargaining agreement between Respondent and the Union is no defense in that regard. See Henry Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), and cases there cited at footnote 4.16 . The foregoing course of unlawful conduct-even less would be required-strips of any validity Respondent's claim that the majority status of the Union should be re- solved by a representation election. The majority status of the Union on May 1 was undisputed and the first indication that the Union's majority may have been dissipated emerged with the filing of the decertification petition in Case 13-RD-819 on or about July 27, 1971, long after the unfair labor practices occurred. The law does not contem- plate that Respondent can profit from his own misconduct in this way. Indeed, N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), upon which Respondent relies, is to the con- trary. As the Supreme Court there stated (at 599-600), "We agree with the Board's assertion here that there is no sugges- tion that Congress intended § 9(c)(1)(B) to relieve any em- ployer of his § 8(a)(5) bargaining obligation where, without good faith, he engaged in unfair labor practices disruptive of the Board's election machinery." The Court of Appeals for the Seventh Circuit quite recently reaffirmed the princi- ple. N.L.R.B. v. Copps Corp., 458 F.2d 1227. I find that the violation of Section 8(a)(5) and (1) of the Act and the propriety of a bargaining order is fully warrant- ed on this record. CONCLUSIONS OF LAW 1. By discharging Keith Lambert on or about June 16, 1971, for refusing to drop out of the Union, Respondent has violated Section 8(a)(3) and (1) of the Act. 2. All patternmakers and apprentice patternmakers employed by Respondent at its Aurora, Illinois, plant, ex- cluding office clerical employees, guards, supervisors, and all other employees constitute a unit appropriate for pur- poses of collective bargaining. - 3. At all material times, the Union has been the desig- nated representative of the majority of the employees in the 16 Manitowoc, Inc, 186 NLRB No. 45, relied on by Respondent, is plainly distinguishable. There, the parties had expressly provided that the pension plan would cease upon termination of the agreement , notice of termination was given the Union, and bargaining ensued Here there was no provision for automatic termination and the discontinuance occurred on May 11, as stipulated by the parties No prior notice to the Union was given. aforesaid unit. 4. By the course of conduct set forth herein, Respon- dent has refused and is refusing to bargain collectively with the Union as the bargaining representative of the employees in the aforesaid unit in violation of Section 8(a)(5) and (1) of the Act. 5. Respondent did not violate Section 8(a)(3) and (1) of the Act by laying off Keith Lambert on May 5, 1971. REMEDY To effectuate the policies of the Act and enforce its mandate I will direct Respondent to cease and desist from the several unfair labor practices here found. Because of the character and scope of these violations, I shall additionally direct Respondent to refrain from infringing in any manner upon the rights guaranteed its employees under Section 7 of the Act. Brad's Machine Products, Inc. 191 NLRB No. 15 (1971). Because of the particular circumstances appearing in this case, I find it appropriate to circumscribe the affirma- tive relief which would otherwise be appropriate. It appears that following his discriminatory discharge on June 16, 1971, Keith Lambert was later restored to Respondent's payroll and later voluntarily quit. A reinstatement order is therefore not appropriate. A backpay order making Keith Lambert whole for the earnings he did lose as a result of the unlawful discrimination against him is appropriate, howev- er, subject to a setoff of the amounts already transmitted to him under the abortive settlement agreement of October 20, 1971. Similarly, Respondent is entitled to set off amounts it has already paid to the pension and welfare funds under that settlement agreement against the amounts otherwise found to be due because of its unilateral discontinuance of payments to those funds during the period between May 11 and October 11, 1971.11 Inasmuch as it appears that Re- spondent has resumed the pension and welfare payments, I believe a cease-and-desist order against further unilateral action will suffice and further affirmative relief is not re- quired in that regard. I shall also direct Respondent to bargain collectively, upon request, with the Union as the exclusive bargaining representative of the employees in the unit found appropri- ate here, and to embody any understanding reached in a signed agreement. To facilitate these ends, the remedial order will include the customary record-keeping and notice-posting provi- sions. It is noted that Respondent has heretofore posted notices but those notices were posted pursuant to the Octo- ber 20 settlement agreement which contained a "non-admis- sion" clause. Inasmuch as that settlement agreement was set aside, the remedial value of those notices has been dissipat- ed. Moreover, the significance of the present notices is that they are posted pursuant, not to a settlement agreement with a "non-admission" clause, but pursuant to findings of unfair labor practices made by the Agency after a hearing 17 Inasmuch as Respondent has already made substantial payments both with respect to backpay for Keith Lambert and with respect to the defaulted payments to the pension and welfare funds, and since in both instances the periods under consideration are relatively brief, I deem it unnecessary to provide for the calculation of the amounts due on a basis of calendar quarters or for interest to be added on the amounts, if any, remaining to be paid 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which both sides had an opportunity to present evidence. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following:18 ORDER Respondent, Fox River Pattern, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a). Discouraging membership in Pattern, Mold and Model Makers' Association of Chicago and Vicinity, affil- iated with the Pattern Makers' League of North America, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating against any employee in regard to the hire and tenure of his employment or any term or condition of his employment. (b). Bypassing the above-named Union, as long as it is the lawful representative of the employees in an appropriate unit, by bargaining directly with the employees in that unit regarding, or unilaterally making any changes in, their wag- es, hours, or any other term or condition of their employ- ment. (c). Unilaterally discontinuing payments to the pension and welfare funds. (d). Promising, or granting benefits to employees in return for their dropping their membership in the aforesaid Union, or threatening them with reprisals for retaining their membership in the aforesaid Union. (e). Interrogating the employees concerning their activ- ities in the aforesaid Union or actions taken at the meetings of said Union. (f). Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with the above-named Union as the exclusive bargaining repre- sentative of all patternmakers and apprentice patternmak- ers employed by Respondent at its Aurora, Illinois, plant, excluding office clerical employees, guards, supervisors, and all other employees. (g). In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guar- anteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a). Make whole Keith Lambert for earnings lost as a result of the discrimination against him in the manner set forth in the section of the Trial Examiner's Decision entitled "Remedy." (b). Reimburse the pension and welfare funds for any missed payments in the manner set forth in the above- described "Remedy" section. (c). Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, pension and welfare payment rec- ords, and any other records necessary to analyze the amounts due under the terms of this Order. (d). Upon request, bargain collectively in good faith with the above-named Union as the exclusive representative of the employees in the above-described unit, and embody in a signed agreement any understanding reached. (e). Post at its plant in Aurora, Illinois, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (f). Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith .20 18 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 19 In the event that the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 20 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read . "Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had an opportunity to present evidence, the National Labor Relations Board has found that we have violated the law, and has ordered us to post this notice. WE WILL NOT discharge or otherwise discriminate against employees to discourage activities in support of, or membership in, Pattern, Mold and Model Mak- ers' Association of Chicago and Vicinity, affiliated with the Pattern Makers' League of North America, AFL- CIO, or any other union. WE WILL, to the extent we have not already done so, make whole Keith Lambert for earnings lost as a result of his discharge on June 16, 1971. WE WILL NOT bypass the above-named Union as long as it is your bargaining representative by bargain- ing with you directly about your wages, hours, or other terms and conditions of employment. WE WILL NOT discontinue payments to the pension and welfare funds without bargaining with the above- named Union, and we will, to the extent we have not done so already, reimburse the said funds for missed payments. WE WILL NOT promise or grant you benefits if you drop the above-named Union, or threaten you with harm or harm you if you stay in that Union. You are FOX RIVER PATTERN, INC. free to belong to or not to belong to or to support or not to support the above-named Union or any other Union. WE WILL NOT ask you questions about your union membership or activities. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive bargaining representative of the employees described below about their wages, hours, and working conditions. If an agree- ment is reached, we will sign such an agreement. These employees are: All patternmakers and apprentice patternmakers employed by Fox River Pattern, Inc., at its Aurora, Illinois, plant, excluding office clerical employees, guards, supervisors, and all other employees. WE WILL NOT in any other manner interfere with the right of employees to engage in self-organization or 79 collective bargaining or to refrain from such activities. Fox RIVER PATTERN, INC (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 direct- ed to the Board's Office, Everett McKinley Dirksen Build- ing, Room 881, 219 South Dearborn Street, Chicago, Illinois 60604 (Telephone 312-353-7572.