Litton Industries, Inc.

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automated Business Systems , a Division of Litton Business Systems, Inc., a Subsidiary of Litton Indus- tries, Inc. and Local 432, International Union of Electrical, Radio and Machine Workers, AFL-CIO. Cases 22-CA-4795 and 22-RC-5124 August 14, 1973 DECISION AND ORDER On August 14, 1972, Administrative Law Judge' Arnold Ordman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, with certain modifica- tions set forth below. This case presents the situation of an incumbent union whose continuing majority status is challenged by the employer. While it has not been proved that Respondent committed any unfair labor practices concurrent with its initial assertion that the Union had lost its majority status, it committed unfair labor practices later in connection with a representation election being held by consent of the parties to settle the question of the Union's status. The problem is, essentially, whether it is necessary and appropriate to order Respondent to bargain with the Union in order effectively to remedy the unfair labor practices com- mitted. The Union was certified by this Board in 1954 as the exclusive bargaining representative for a unit of employees of Respondent's predecessor as employer. A series of collective-bargaining agreements ensued, the latest running from 1969 to September 1971, be- tween Respondent and the Union, covering a unit of approximately 140 employees. Beginning in May 1971, some employees distribut- ed handbills at the plant gates indicating their dissa- tisfaction with the Union. The Union filed charges with the Board alleging that Respondent had unlaw- fully assisted these dissident employees. On July 16 2 the Regional Director issued a complaint pursuant to those charges. On July 19 a decertification petition was filed with the Board, pursuant to Section 9(c)(1)(A) of the Act., asserting that the Union was no longer the representative of a majority of the employ- ees in the unit. The unfair labor practice charges and i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 All dates given hereafter, unless otherwise designated , are in 1971 complaint having raised serious questions concerning the ability of employees in the unit to vote their free choices in the contemplated election,' the Regional Director, on July 29, dismissed the decertification pe- tition.4 Meanwhile, on July 1, the Union had requested negotiations for a new contract. Respondent replied on July 29 that it would not negotiate because it had a reasonable doubt as to the Union's majority status. It did not, however, withdraw recognition for purpos- es of administering the expiring contract. The Union filed another charge, alleging that Respondent unlaw- fully refused to bargain. After the decertification petition was dismissed by the Regional Director, Respondent was informed by the decertification petitioner's attorney that he was appealing the dismissal to the Board, and he main- tained that, since it was contended that the Union no longer represented a majority of the employees, Respondent's entering into contract negotiations with the Union would be in violation of the Act. A few weeks later, on September 8, the petitioner's attorney wrote to Respondent that the decertification petition was supported by "71 cards" filed with the Board's Regional Office, "representing a majority of those employed in the unit." Still later, an employee active in the dissident movement told Respondent there were more than 80 "cards" on file with the Board. On September 20, the Regional Director issued a complaint pursuant to the charge of unlawful refusal to bargain. On September 23, the Union, citing the issuance of the complaint, again requested contract negotiations and attached to its request a petition pur- portedly signed by over 90 employees in support of its request. On September 28, noting the recent issuance of the complaint alleging unlawful refusal to bargain, the Board sustained the Regional Director's July 29 dismissal of the decertification petition.' Also on Sep- tember 28, Respondent addressed a letter to its em- ployees telling them that the decertification petition had been "blocked" by the Union's filing of the vari- ous charges, that the charges were groundless, that resolution of them would require "a trial and perhaps lengthy appeals," and that until they were resolved "your company cannot recognize the union." The let- ter goes on to say that the various claims to majority support could best be decided in a secret ballot elec- tion, that the Company would "settle the charges 3 The complaint alleged, inter aha, that Respondent permitted employees to circulate the decertification petition during working hours See Holt Bros, 146 NLRB 383, Edward J Schlachter Meat Co, Inc, 100 NLRB 1171 5 Although the Board based its affirmance on the subsequent issuance of the refusal-to-bargain complaint, it did not intend, nor does it now suggest, that it was improper for the Regional Director to have dismissed the petition because of the unresolved charges of unlawful assistance, upon which an earlier complaint had been issued 205 NLRB No. 35 AUTOMATED BUSINESS SYSTEMS 533 against it in order to make an election possible," and that the Union should be agreeable to such a resolu- tion if it truly represented a majority. The collective-bargaining agreement expired on September 30, 1971. The unfair labor practice com- plaints were consolidated for hearing and went to trial on October 13. After evidence was taken for several days, the matter was adjourned and the parties reached a "settlement" by which all the charges were withdrawn, the Union filed a petition for certification, and Respondent agreed to a stipulation for certifica- tion upon consent election. The unit to which the parties agreed for purposes of the consent election added several job classifications and some employees from another plant to the contract unit. The Adminis- trative Law Judge before whom the hearing had been opened, by order dated December 22, 1971, approved the Union's withdrawal of the charge, granted the General Counsel's motion to withdraw the complaint, and closed the hearing. The election was scheduled for January 19, 1972, and resulted in a vote of 110 to 84 against the Union. Shortly before the election, Respondent engaged, inter alia, in the following conduct, which, in agree- ment with the Administrative Law Judge, we find to be violative of Section 8(a)(1): The plant manager addressed departmental groups of employees. Ac- cording to different accounts, the general tenor of which was credited by the Administrative Law Judge, he stated that if the Union won the election a certain major item of production would no longer be pro- duced in the plant or he could not promise it would stay in the plant or he did not know what would happen to it. A supervisor of about 45 employees stated variously to at least three employees that if the Union won the election the plant would close down, the Company would move or would probably move, and that a product would be transferred to another plant for production. Another supervisor, asked by two employees about rumors that the plant might move, said or implied that the plant or some of the products might well move out the day after the Union won the election. We agree with the Administrative Law Judge that Respondent, by its conduct, rendered the results of the election unreliable, and that the effects of its inter- ference with employee rights cannot be expected to be remedied by the mere posting of a notice. We agree further, for the reasons stated hereafter, that a bar- gaining order is necessary to remedy Respondent's unfair labor practices. The Administrative Law Judge concluded that when Respondent, in response to the Union's Septem- ber 1971 demand, refused to bargain, its contempora- neous and subsequent actions showed that it was not relying on an objective basis to justify its asserted doubt as to the Union's continuing majority status. We do not think the circumstances necessarily war- rant such a conclusion. Respondent knew that a de- certification petition had been filed. In addition, it had been represented to Respondent by the the petitioner's attorney and by another employee that the petition was supported by "cards" from a majority of the employees. On the other hand, the Union repre- sented that it still had majority support, and it sent Respondent a petition which purported to prove it. In these circumstances, Respondent could not place great reliance on the solidity of either asserted majori- ty, but there may have been enough to justify a doubt .6 As to the charges that Respondent unlawfully assisted the decertification petitioners, it is true, as the Administrative Law Judge suggests, that the Regional Director found enough merit in the charges to issue a complaint. But the allegations of the complaint were not litigated to the point of decision, and it is improp- er to argue from the mere issuance of the complaint that Respondent may not have asserted its doubt of majority status in a context free of unfair labor prac- tices. Nor do we think that Respondent's later viola- tions of Section 8(a)(1) necessarily estop it from relying on the objective considerations on which it justifies its earlier doubt.' We would emphasize, rath- 6 Cf Newhouse Broadcasting Corporation d/b/a WAPI-TV-AM-FM, 197 NLRB 885, ALJD II C. After the briefs were received by the Board in the instant case, the Board issued its decision in Telautograph Corporation, 199 NLRB No 117, in which a majority of the Board held that where a decertifi- cation petition is filed which raises a real question concerning representation, the employer may not bargain with the incumbent union over a new contract until the question concerning representation has been settled by the Board. Were Respondent here relying on the filing of the decertification petition alone to justify its refusal to bargain , we might arguably have to consider whether Te/autograph is applicable to a situation where the decertification petition has been dismissed pursuant to the Board's "blocking charge" policy and that blocking charge is later withdrawn In any event, the bargaining order herein is given to remedy subsequent unfair labor practices, and we are not finding that an unfair labor practice occurred here when bargaining was demanded and refused in September 1971 The bargaining order remedy we give here in no way is intended to signify a change of position by any of the members of the Board on the Te/autograph principle (Members Fanning and Jenkins concurred in Telautograph on other grounds.) 7 Member Fanning would find that Respondent did not assert its doubt of majority in good faith Thus, when the Union renewed its request to bargain on September 23, 1971, Respondent communicated directly with the employ- ees stating it would not recognize the Union, that the best way to resolve the question concerning representation was to have an election which the Union was blocking by filing charges The charges referred to were later withdrawn by the Union during the hearing on the earlier complaint, and the Union filed a petition for an election in return for Respondent 's agreement to consent to an election Though Respondent did consent to an election, it thereafter committed the unfair labor practices litigated herein, thus destroying the utility and fairness of the procedures it proposed as the means of resolving the dispute Such action is the antithesis of a good-faith doubt of the lack of the Union's standing with the employees and warrants the inference that Respondent did not assert its doubt of the Union's status in good faith but rather as a means of gaining time to undermine the Union 's standing with the unit employees See Bally Case and Cooler, Inc, 172 NLRB 1127, enfd. 416 F.2d 902 (C A 6, 1969) Member Fanning would therefore find a viola- tion of Sec . 8(a)(5), and joins his colleagues in ordering Respondent to Continued 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er, the significance of the later unfair labor practices themselves as the basis for our bargaining order here- in. We find, preliminarily, that the Union maintained its majority status during the period in question. Un- der established Board precedent, there is a presump- tion that a union, after the expiration of a year from the date of its certification, continued to be the choice of the employees in the unit as their exclusive bargain- ing representative.' Similarly, it is presumed that a union retained its majority status in the unit estab- lished by its collective-bargaining agreement, even af- ter the expiration of that agreement.9 This presumption is normally rebuttable (subject to the Board's "contract-bar" doctrine) by competent evi- dence that the union no longer commands a majority, and even without such an affirmative showing an em- ployer may withhold further bargaining in reliance on a reasonably based doubt as to the continuing majori- ty. Establishment of a basis for a reasonable doubt, however, is not the same as establishing by affirmative proof loss of majority.10 Member Kennedy, while he acknowledges that there is a distinction between establishing a basis for reasonable doubt and proving loss of majority, never- theless equates the two in legal effect insofar as he relies on certain language in Stoner Rubber Company, Inc., 123 NLRB 1440, and Lodges 1746 and 743, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO [United Aircraft Corporation] v. N.L.R.B., 416 F.2d 809 (C.A.D.C., 1969). In Stoner Rubber Co., the employer withdrew recognition from an incumbent union, asserting that it had a good-faith doubt of the union's continued majority status, and unilaterally granted a wage increase. The Board agreed unanimously that establishment of a good- faith doubt was sufficient to constitute a complete defense to the allegation that the employer had unlaw- bargain not only on the basis of the 8 (a)(1) violations but also on the basis of an 8(a)(5) violation. 8 Laystrom Manufacturing Co, 151 NLRB 1482, enforcement denied on other grounds 359 F.2d 799 (C A. 7, 1966), Lloyd McKee Motors, Inc, 170 NLRB 1278. Member Kennedy finds us to be in error in observing that Laystrom Manufacturing Co., supra, was denied enforcement "on other grounds" We cited Laystrom above only for the proposition that such a presumption exists, and do not agree with Member Kennedy that the court challenged this proposition . The court disagreed with the Board only with respect to the sufficiency of the evidence that the Employer's asserted doubt of the Union's continuing majority status was raised in good faith 9 Barrington Plaza and Tragmew, Inc, 185 NLRB 962, enforcement denied on other grounds sub nom N L R. B v. Tragmew, Inc, and Consolidated Hotels of California, 470 F 2d 669 (C.A. 9, 1972); Emerson Manufacturing Company, Inc, 200 NLRB No. 33. While the bargaining unit originally certified in 1954 has undergone certain changes, we find from the entire bargaining history since the certification , involving both the Respondent and its predecessor, that the parties have at all pertinent times, and at least until Respondent refused to negotiate a new agreement in 1971, treated the presumption of continued majority as applicable to the unit we find appropriate herein. 10 Lloyd McKee Motors, Inc., supra, Celanese Corporation of America, 95 NLRB 664, Bally Case and Cooler, Inc., 172 NLRB 1127, 1128. fully refused to bargain by its withdrawal of recogni- tion. A majority of the Board also concluded that the employer had not acted unlawfully in making the uni- lateral wage increases. But the majority could not agree on a rationale for that conclusion. Chairman Leedom concluded that unilateral changes were per- missible to the same extent as withdrawal of recogni- tion once a good-faith doubt of continued majority status was established. Dissenting Members Fanning and Joseph Alton Jenkins, on the other hand, thought that good-faith doubt was not a defense to a charge of unlawful unilateral changes. Augmenting the Lee- dom view, to establish the Board's majority conclu- sion of no violation, was the opinion of Members Rodgers and Bean. In their view, an employer assert- ing a good-faith doubt of continuing majority status makes unilateral changes at his peril; if the majority did in fact continue there would be a violation of Section 8(a)(5). They believed that the record did not establish the continuation of majority status, as tested by the rule they enunciated therein: [T]o overcome the presumption of majority the employer need only produce sufficient evidence to cast serious doubt on the union's continued majority status. The presumption then loses its force and the General Counsel must come for- ward with evidence that on the refusal-to-bargain date the union in fact did represent a majority of employees in the appropriate unit." It is this rationale which Member Kennedy would apply in the instant case, obliterating the distinction made in Section 8(a)(5) cases between good-faith doubt of majority and actual loss of majority status by equating evidence of the first with proof of the sec- ond. This minority rationale has never been the rule of law under which the question of actual loss of union majority has been resolved." The principle we follow, rather, derives from the leading case of Cela- nese Corporation, 95 NLRB 664. Celanese was recog- nized as good law by all the Board Members in Stoner Rubber, although they disagreed as to whether it cov- ered situations involving unilateral changes. In Cela- nese, where the principles of presumption of majority " 123 NLRB at 1445 12 Lodges 1746 and 743, Machinists [United Aircraft], supra, involved only the question of the employer's basis for asserting a doubt of the union's continued majority status and whether the withdrawal of recognition itself violated Sec. 8(a)(5) In dictum setting forth the general legal principles it thought were involved, the court recited part of the Rodgers and Bean position in Stoner Rubber The issue that elicited that position in Stoner was clearly not present in United Aircraft, and to the extent that the court may be taken as having adopted that position, we respectfully disagree (See discussion of Taft Broadcasting, infra) AUTOMATED BUSINESS SYSTEMS and rebuttal of presumption are set forth in detail and have been followed ever since," the distinction be- tween good-faith doubt of continued majority and loss of majority is set forth with unmistakable clarity. The Trial Examiner in Celanese had found that the union's presumption of continuing majority status had become "inapplicable" because of the lapse of 3 years since its certification, or had been in any case "sufficiently rebutted" by the facts of the case. The Board majority, while agreeing with the Trial Examiner's ultimate conclusion that the employer did not violate Section 8(a)(5), expressly disavowed his analysis of the applicable legal principles, and went on to explain: We believe that the answer to the question whether the Respondent violated Section 8(a)(5) of the Act . . . depends, not on whether there was sufficient evidence to rebut the presumption of the Union's continuing majority status or to demonstrate that the Union in fact did not repre- sent the majority of the employees, but upon whether the Employer in good faith believed that the Union no longer represented the majority of employees.14 After setting forth the now familiar doctrines with respect to the presumption, its rebuttal, and the good- faith doubt, the Board majority found in Celanese that the respondent "acted in good faith in questioning the Union's majority .. . " and that therefore "there is no need to ascertain whether the Union in fact repre- sented a majority of the Respondent's employees "15 And in Lloyd McKee Motors, Inc., supra, the Board observed: "While these factors may not, in and of themselves, establish as a fact a loss of majority, we are of the opinion that taken in their totality they present an objective basis which could furnish reason- able grounds for Respondent to believe in good faith that the Union had lost its majority status." 16 Clearly, therefore, the Board's view is that rea- sonably based doubt and majority status are separate issues, and it does not consider evidence establishing the former as resolving the latter. Dictum in the recent case of Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB No. 113, however, may appear to have obliterated this distinction by its reliance upon the Rodgers-Bean Stoner Rubber ratio- nale quoted above. i3 See, e g., cases cited in In 8, supra 14 95 NLRB at 671. See also 95 NLRB at 672, In 16 i5 Id. at 675 i6 170 NLRB at 1279 535 However, the issue before the Board in Taft Broad- casting was not whether the presumption of majority had been rebutted by an affirmative showing that the union no longer commanded a majority. The issue was, rather, whether the respondent had shown suffi- cient objective evidence to support its alleged good- faith doubt when it withdrew recognition." In such a case, as in Celanese, it was unnecessary for the Board to reach the question of whether the presumption had been rebutted in fact, and the language indicating that it had was gratuitous at best. Moreover, if the Taft Broadcasting purported adoption of Stoner Rubber were taken literally, it would mean that even where an employer demonstrates a reasonably based doubt of the union's continuing majority and in reliance there- on withdraws recognition, he will have violated Sec- tion 8(a)(5) if the General Counsel is able to prove that the majority in fact continued. That would in- deed be a major departure from existing law." We do not intend to follow the Stoner dictum from Taft Broadcasting. 19 We are not, in finding that the Union maintained its majority status in the instant case, relieving the General Counsel of the burden of proving majority status as part of his prima facie case. The General Counsel has proved the Union's certification and its collective-bargaining agreement. These facts create, under the numerous cases we have cited, the presump- tion of majority status and serve to satisfy the General Counsel's burden of proving representative status. Of course, this is a rebuttable presumption which contin- ues in force only until rebutted.20 But, like other re- buttable presumptions it has the same force and effect as other forms of proof of facts, and is rebutted only by the kind of proof that would rebut a prima facie showing established by other means. Far from being an esoteric technicality, it is a recognition of the sim- ple principle that a status shown to exist is presumed to continue until shown to have ceased.21 Respondent offered to prove in the instant case the 17 Taft Broadcasting, 201 NLRB No 113 19 Recently, the Court of Appeals for the Sixth Circuit in N L R B v Dayton Motels, Inc, 474 F 2d 328 (1973), stated [E]ven if the Union is proved to be actually representative of a majority, the employer is not guilty of a Section 8(a)(5) violation if the employer had a reasonably-grounded belief that the Union did not represent an uncoerced majority of its employees A good-faith doubt excul- pates the employer even if the Union in fact represented a majority of the employees i9 Member Penello, who participated in Taft Broadcasting, would, on fur- ther consideration , approve the result therein on the basis of the Celanese and Laystrom Manufacturing Co cases, supra Nothing stated herein is to be taken as indicating that Member Fanning necessarily approves the result in Taft Broadcasting 20 Celanese Corporation, supra at 672, Firestone Tire and Rubber Co, 173 NLRB 1179, 1180 21 N L R B v Whittier Mills Co, I I I F 2d 474, 478 (C A. 5, 1940). 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of cards that were filed in support of the decertification petition. This would not, of course, have been sufficient to prove a loss of majority status for the Union. Respondent did not offer either to attempt to authenticate the signatures on the "cards," or to prove what the "cards" said. Had Respondent's limited offer of proof been accepted, therefore, we still could not have determined whether "cards" were signed by a majority of the employees, whether they were merely "showing of interest" cards whereby the employees who signed them requested that an election be held, or whether they were firm statements by the employees that they no longer wished to have the Union represent them. As we are giving Respondent the benefit of a reasonably based doubt at the time of its withdrawal of recognition, Respondent could not have been prejudiced by the Administrative Law Judge's refusal to compel the Regional Director to supply a count of the cards, and it did not submit any other evidence probative of the Union' s loss of major- ity22 In substance, the extent of the proof of "rebuttal" of the presumption in the instant case is that a decerti- fication petition was filed, and that Respondent was told that the petition was supported by "cards" filed by a majority of the employees in the unit. Even the Respondent does not contend that this showing affir- matively rebuts the presumption so as to establish a loss of majority. In short, the evidence in the record does not convince us that the presumption of continu- ing majority has been rebutted .21 The General Coun- sel has therefore sustained his burden of proving majority status during the critical period. 24 Inasmuch as the presumption of the Union's con- tinuing majority stands unrebutted, even though Re- spondent may have established its right to withhold bargaining at the time it asserted its doubt, this case is properly treated as one where the Union has estab- lished its majority status prior to the contested elec- tion. The situation is therefore analogous to that of the original organization cases coming under the sweep of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). In accordance with that decision and the many decisions we have rendered under its banner, our determination to be made here is whether, given the Union's majority status, Respondent committed unfair labor practices of a serious enough nature to 22 Cf Fuqua Homes Missouri, Inc, 201 NLRB No 13 23 We are not impressed with Respondent's protestations that, without being given access to the Board's records as to the number of "cards" filed, there was no way it lawfully could have proved the asserted loss of majority status See, e g., Wallace Company, Inc, 174 NLRB 416, Tesoro Petroleum Cooration, 174 NLRB 1285, Frito-Lay, Inc, 151 NLRB 28. 2fBarrington Plaza and Tragniew, Inc, supra, Bally Case and Cooler, Inc, supra warrant the imposition of a bargaining order 25 It be- comes appropriate, therefore, to look more closely into the unfair labor practices that have been commit- ted. First, the plant manager told large numbers of em- ployees, in groups, that the fate of the "Mag-Ledger," a product on which many employees, perhaps 25 or 30, worked, was uncertain if the Union won the elec- tion. Accounts of his speeches varied from mere ex- pressions of uncertainty to an outright statement that the product would no longer be produced in the plant. In one form or another, the plant manager did indi- cate to the employees, as found by the Administrative Law Judge, that a union victory would imperil the continuation of Mag-Ledger production in the plant. A supervisor of 45 employees had various conversa- tions in which he told employees that the plant would close, would or probably would move, and that a product would be transferred if the Union won the election. And a rumor of a plant-moving was in the air when two employees asked another supervisor about it and he told them or at least implied to them that there would likely be a move of some product lines immediately upon a union victory. The plant manager also made an unlawful promise of benefit in a memorandum distributed to all the employees on January 11, 1972. It needs no extended discussion or lengthy list of authorities to demonstrate that threats of probable plant closings are among the most serious and most flagrant interferences with the right of employees to decide for themselves the question of union represen- tation.26 A threat of moving the plant is intrinsically of almost equal coercive effect, and a threat of partial closing or transferring is only slightly, if at all, less coercive. In a certain practical sense, the threats of total or partial moving may well have been the most coercive to the employees involved here, because the knowledge or belief that Respondent could make such transfers to other of its own plants made the threats that much more believable 27 The fact that the threats were made to a large number of employees and ema- nated from levels of management ranging from the plant manager to a low level supervisor is another important factor in evaluating the probable effects on 25 In analyzing this case under Gissel Packing standards we do not deal, as Member Kennedy suggests, with questions of "good-faith doubt " Our discussion of "good-faith doubt" was limited to the analysis of the Celanese line of cases vis-a-vis the cases purporting to follow Stoner Rubber, with respect to the duty to continue bargaining with an incumbent union for purposes of Sec 8(a)(5) Regardless of whether it is still correct to use the term "good-faith doubt" in that context, our decision that a bargaining order is appropriate because of Respondent 's violations of Sec 8 (a)(I) door not in any sense involve "good-faith doubt" or the lack thereof any See, e g , Gissel Packing Co, supra, 615 620 27 In this case Respondent's plants in Virginia and Massachusetts were mentioned specifically as possible transfer locations for products to be moved out AUTOMATED BUSINESS SYSTEMS 537 the employees' ability to make a free choice in the future. We conclude that the instant case comes with- in the purview of Sinclair, one of the four cases in- volved in Gissel Packing Co., supra, in that the unfair labor practices committed here, in violation of Sec- tion 8(a)(1), were so coercive that a bargaining order is the only available, effective remedy for them. The Union's majority was established in the con- tract unit, which was expanded for purposes of the January 1972 election by including some previously excluded classifications of employees and some em- ployees at another plant. We are satisfied that the employees thus added by agreement did not consti- tute an accretion to the contract unit. As no bargain- ing occurred in the expanded unit and the Union never had the opportunity to establish its majority status in that unit because of Respondent's interfer- ence with the election, we find that the contract unit is still the appropriate unit in which bargaining should take place. We shall, to that extent, modify the recom- mended Order of the Administrative Law Judge, who would have ordered bargaining in the expanded unit. We also modify the recommended Order to the extent that it is based on a finding of a violation of Section 8(a)(5), a finding which we find unnecessary to make. 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 Administrative Law Judge, as herein modified, and hereby orders that Automated Business Systems, a Division of Litton Business Systems, Inc., a Subsidiary of Litton Industries, Inc., Carlstadt and Clifton, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the rec- ommended Order of the Administrative Law Judge, as modified below: 1. Delete paragraph 1(c) and renumber paragraph 1(d) accordingly. 2. Substitute the following as paragraph 2(a): "(a) Upon request, bargain collectively in good faith with Local 432, International Union of Electri- cal, Radio and Machine Workers, AFL-CIO, as the exclusive bargaining representative of the employees described below, and embody in a signed agreement any understanding reached. The employees are: All production and maintenance workers, jani- tors, and truck drivers employed by the Employ- er at its Clifton, New Jersey, plant, excluding expeditors, engineering, research and model shop employees, technicians engaged in tests and troubleshooting in final and sub-assembly, office and clerical employees, professional employees, guards and supervisors as defined in the Act." 3. In paragraph 2(b) delete the words "and Or- ange." 4. Substitute the attached notice for the Adminis- trative Law Judge's notice. CHAIRMAN MILLER, dissenting in part: I agree with what is apparently the unanimous view of my colleagues that on July 29, 1971, when Respon- dent suspended bargaining with the Union, it did so on the basis of objective evidence sufficient to cast serious doubt on the Union's continuing majority sta- tus. Accordingly, I concur in their dismissal of the 8(a)(5) allegations of the complaint. I am, however, less satisfied than three of my col- leagues that the Union continued to represent a ma- jority of Respondent's employees;28 this being the case, I am unwilling to join them in granting a bar- gaining order on the basis of Gissel type rationale. In Gissel, supra, the Union to which we granted the bargaining order had demonstrated a clear, current majority status. We have, to the best of my knowl- edge, required the showing of a majority in all bar- gaining cases following Gissel. By contrast, in the present case, the General Coun- sel relies solely upon the ordinary "presumption" of majority accorded an incumbent bargaining represen- tative. Absent any other evidence, that is sufficient to support a continued obligation to bargain. However, as all my colleagues recognize, the Respondent in this case has demonstrated a number of objective-not subjective-facts giving rise to a doubt as to the Union's continuing majority status. Prominent among these facts was a decertification petition which, Respondent alleges, was supported by "cards" filed by a majority of employees in the unit. While it is true, as my majority colleagues point out, that this does not definitively establish that Respondent lost its majority, I believe they are applying a double stan- dard in relying on the fact that Respondent did not offer to prove the precise content of the "cards" sup- porting the decertification petition. While these cards or the decertification petition may not, as indicated, have proved loss of majority, they surely have at least counterbalanced the weight of the "presumption" of majority otherwise accorded. In my view, a presump- 28 Had Respondent committed no unfair labor practices, I question wheth- er proof by the General Counsel, at the hearing, that the Union in fact represented a majority would have been sufficient to establish an 8(a)(5) violation See my separate position in Taft Broadcasting, WDAF-TV, AM- FM, 201 NLRB No. 113, In . 8 In this respect, I agree with my colleagues in the majority rather than with Member Kennedy 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, being something less than actual proof, may be rebutted by something less than actual proof to the contrary. In short, weighing the presumption against the proof offered by Respondent, I am totally unen- lightened as to whether the Union represented a ma- jority or not. This being the case, I am unwilling to enter a bar- gaining order merely because the Employer subse- quently engaged in some unfair labor practices. It may be that the gravity of the Employer's unfair labor practices was sufficient to render the holding of a fair election impossible. This, however, is not enough to justify the issuance of a bargaining order in other Gissel type cases, and I do not believe it is enough here either. To be sure, granting a bargaining order in this case might well be a deserved "penalty" against an erring employer; unfortunately, it may also be an un- justified penalty against the innocent employees who, before the Employer commenced committing any un- fair labor practices, evidenced their dissatisfaction with this Union by filing an adequately supported decertification petition. I believe the course of action which would best satisfy the purposes of the statute would be the is- suance of a Board Order remedying Respondent's un- fair labor practices, and the holding of a second election, because of the Employer's objectionable conduct. Issuance of a bargaining order is unwarrant- ed. MEMBER KENNEDY, dissenting in part: The majority is clearly correct in not finding a vio- lation of Section 8(a)(5) of the Act. I join my col- leagues in their conclusion that there was an "objective basis" to justify the Respondent's doubt of the Union's continuing majority status when it re- fused to bargain in response to the Union's September 1971 demand. I join my colleagues in their conclusion that Respondent's later violations of Section 8(a)(1) do not "estop it from relying on the objective consid- erations on which it justified its earlier doubt." The majority is also correct in its finding that "it is im- proper to argue from the mere issuance of the [earlier] complaint that Respondent may not have asserted its doubt of majority status in a context free of unfair labor practices." Nor do I have any substantial dis- agreement with the majority's recitation of the facts herein. My real difference with the majority is their errone- ous conclusion that the Union's majority status is pre- sumed to continue in the old contract unit. There being no proof in this record that the Union repre- sented a majority of the employees in an appropriate unit, I, like the Chairman, am unwilling to issue a bargaining order in this case. The majority's conclusion with respect to the pre- sumption of majority is contrary to established law. The principles that govern withdrawal of recognition of an incumbent union were articulated by the Dis- trict of Columbia Circuit Court of Appeals in Lodges 1746 and 743, International Association of Machinists and Aerospace Workers, AFL-CIO [United Aircraft Corporation] v. N. L. R. B., 416 F.2d 809, 811-812 (C.A. D.C., 1969). The court stated: The legal principles relating to withdrawal of recognition of a bargaining representative are well settled. Absent special circumstances, the union enjoys an irrebuttable presumption of ma- jority status for one year after certification. Thereafter, the presumption continues but be- comes rebuttable upon a showing of "sufficient evidence to cast serious doubt on the union's continued majority status." At that point, the bur- den shifts to the General Counsel to prove that, on the critical date, the union in fact represented a majority of the employees. [Emphasis supplied.] The Court's view as to the burden of proof, with which the majority expressly disagree, is in accord with the Board's view as set forth in Stoner Rubber Company, Inc., 123 NLRB 1440.29 The Board recently predicated its dismissal of a complaint alleging a re- fusal to bargain on this longstanding principle that the General Counsel has the burden of proving that the union, in fact, represents a majority of the employees. Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB No. 113. We there said: "Since the General Counsel failed to come forward with evidence that on the re- fusal-to-bargain date the Union in fact did represent a majority of employees in the unit in question, the allegations in the complaint are found to be without merit." This was the crucial holding of the case, in my opinion, and it cannot now be brushed aside by incor- rectly labeling it "dictum." 29 The Board stated in the Stoner case It is elementary that in a refusal-to-bargain case the General Counsel has the burden of proving the union's majority In the present case, the General Counsel introduced no evidence of majority status except the certifica- tion issued to the Union on May 24, 1956, approximately 14 months before the alleged refusal to bargain Generally a certification is absolute proof of majority for 1 year following its date of issuance After the lapse of the certification year, the certification creates only a presumption of continued majority This presumption is rebuttable Proof of majority is peculiarly within the special competence of the union It may be proved by signed authorization cards, dues checkoff cards, membership lists, or any other evidentiary means An employer can hardly prove that a union no longer represents a majority since he does not have access to the union's membership lists and direct interrogation of employees would probably be unlawful as well as of dubious validity Accordingly, to overcome the presumption of majority the employer need only produce suffi- cient evidence to cast serious doubt on the union's continued majority status The presumption then loses its force and the General Counsel must come forward with evidence that on the refusal-to-bargain date the union in fact did represent a majority of employees in the appropriate unit [Emphasis supplied ] AUTOMATED BUSINESS SYSTEMS The Dayton Motels, Inc., case, cited in footnote 17 above, is clearly in accord with my view of the appli- cable law. The court stated: In order to establish that an employer's with- drawal of recognition and refusal to bargain with an incumbent union transgresses Section 8(a)(5) of the Act, the burden of proof is upon the Board to show that the union actually represented a majority of the employees in an appropriate unit. Machinists Lodges 1746 & 743 v. N. L. R. B., 416 F.2d 809 (D.C. Circ. 1969). Failure to prove a majority-status of the Union relieves an employer of any duty to bargain, Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 303 (4th Cir. l 969)(Cir. 1966). Furthermore, even if the Union is proved to be actually representative of a majority, the employ- er is not guilty of a Section 8(a)(5) violation if the employer had a reasonably-grounded belief that the Union did not represent an uncoerced major- ity of its employees. Pulley v. N.L.R.B., 395 F.2d 870 (6th Cir. 1968); N. L. R. B. v. John S. Swift Co., 302 F.2d 342 (7th Cir. 1962). A good-faith doubt exculpates the employer even if the Union in fact represented a majority of the employees. N.L.R. B. v. Ben Duthler, Inc., 395 F.2d 28 (6th Cir. 1968). [Emphasis supplied.] I suggest that the above two emphasized sentences, immediately preceding the limited quote in footnote 17, make it clear that the Dayton Motels case supports this dissenting opinion and not the views of the major- ity. The majority suggests that the situation here pre- sented is "analogous to that of the original organiza- tion cases coming under the sweep of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575." I do not agree since there can be no presumption of majority in an "original organization" case. Assuming arguendo that the analogy is appropriate, however, the burden is upon the General Counsel in Gissel type cases to prove the union's majority status.30 The General Counsel having failed to assume the burden of prov- ing the Union's majority status 31 in either unit alleged 30 I recognize that the Supreme Court implied in the Gissel case that the Board could issue a bargaining order in the absence of a showing of majority status if the unfair labor practices are "outrageous " or "pervasive " So far as I am aware, the Board has never issued a bargaining order under these circumstances and this proceeding was not tried on this theory I join my colleagues in affirming the 8 (a)(1) violations found by the Administrative Law Judge His findings are based on credibility resolutions which I accept I note, however, that the General Counsel alleged that only 3 supervisors out of a total of 23 supervisors engaged in any 8 (a)(1) conduct and that the General Counsel called only 9 witnesses in support of those allegations out of a unit of about 194 employees In this case the evidence fails to show that the 8(a)(1) violations were either "outrageous" or "pervasive" so as to pre- clude the holding of a second election where employees could freely express their own desires concerning representation 31 The Board has held many times that there was no violation in a refusal- 539 in the complaint to be appropriate,32 a bargaining order is unjustified. After concluding that this case is analogous to Gis- sel Packing Co., the majority suggests that Member Kennedy is "obliterating the distinction made in 8(a)(5) cases between good-faith doubt of majority and actual loss of majority status by equating evi- dence of the first with proof of the second." I confess to some misunderstanding as to the present posture of "good-faith doubt" in Gissel type cases because I thought that a majority of this Board had "obliterat- ed" "good-faith doubt" as a valid concern of this Board in such cases. See Second Supplemental Deci- sion and Order in Arthur F. Derse, Sr., President and Wilder Mfg. Co., Inc., 198 NLRB No. 123,33 where the Board quoted with approval from Linden Lumber, 190 NLRB 718, as follows: The facts of the present case have caused us to reassess the wisdom of attempting to divine, in retrospect, the state of employer (a) knowledge and (b) intent at the time he refuses to accede to a union demand for recognition. Unless, as in Snow & Sons [134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9) ], the employer has agreed to let its "knowledge" of majority status be established through a means other than a Board election, how are we to evaluate whether it "knows" or whether it "doubts" majority status? And if we are to let our decisions turn on an employer's "willingness" to have majority status determined by an election, how are we to judge "willingness" if the record is silent, as in Wilder, or doubtful, as here, as to just how "willing" the Respondent to-bargain case where the General Counsel failed to sustain his burden of proving the union's majority status For example, see Tarrant Manufacturing Company, 196 NLRB 794, Glomac Plastics, Inc, 194 NLRB 406, Eckerd's Market, Inc, 183 NLRB 337, Jero Steel Treating, Inc, 182 NLRB 522, Collins Mining Company, 177 NLRB 221, Faulks Brothers Construction Co, 176 NLRB 324, The Goodyear Tire & Rubber Company, 174 NLRB 1132, Silver Fleet Motor Express, 174 NLRB 873, S & M Manufacturing Company, 172 NLRB 1008, G C Murphy Company, 171 NLRB 370, Eagle-Picher Industries, Inc, 171 NLRB 293 32 The Administrative Law Judge erroneously concluded that, "There is no issue as to appropriate unit " Respondent's answer to the complaint denied both the appropriateness of the former contract unit and the majority status The appropriateness of the contract unit was not litigated There is no eviden- tiary basis in this record for the majority to assume that the old contract unit continued to be appropriate Respondent's answer admitted that the appropriate unit was the new unit description which was agreed to by the parties and approved by the Regional Director in the stipulation for certification upon consent election in Case 22-RC-5124 There were 140 employees in the old contract unit, but at least 194 employees voted in the election in the new unit in Case 22 -RC-5124 Accordingly, I cannot accept the conclusion of the Administrative Law Judge that the "differences between the two units is insubstantial " Apparently, the majority believes that the differences in the two units are substantial for they , unlike the Administrative Law Judge, have ordered Respondent to bargain in the old contract unit As already noted , I find this record be be wholly inadequate on which to make a determination that the former contract unit is still appropriate 33 The Wilder decision was signed by all Board Members except Member Fanning, who dissented 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is in fact? We decline, in summary, to reenter the "good faith" thicket of Joy Silk [Mills, Inc., 85 NLRB 1263, enfd. as modified 185 F.2d 732 (CA. D. C.) ], which we announced to the Supreme Court in [N.L. R.B. v. Gissel Packing Co., 395 U.S. 575 (1969) ] we had "virtually abandoned . . . altogeth- er." id., 594. [Emphasis supplied.] I readily acknowledge that there is a distinction be- tween "doubt of majority" and proof of "actual loss of majority status." 34 Once it is established that the Employer had an "objective basis" tojustify its doubt (which is conceded by the majority to be present in this case), the General Counsel had the burden of proving majority status. As noted earlier, the majority concedes that there was an "objective basis" to justify Respondent's doubt of majority at the time it refused to enter into negotiations for a new contract. Indeed, implicit in the Union's filing its representation petition in Case 22-RC-5124 was its recognition that a question con- cerning representation existed and that an election should be conducted to determine if the Union com- manded support from a majority of the employees. The Union's filing that petition is inconsistent with the General Counsel's claim that the Union was enti- tled to continued recognition.35 Furthermore, a decertification petition had been filed before Respondent asserted its doubt of majority status and refused to enter into negotiations for a new contract. The majority acknowledges that we are pre- cluded from finding that Respondent's doubt was not asserted in a context free of unfair labor practices. In Telautograph Corporation, 199 NLRB No. 117, a ma- jority of the Board (Chairman Miller and Members Kennedy and Penello) dismissed a complaint which alleged an 8(a)(5) violation of the Act based upon the employer's refusal to negotiate a new contract after a decertification petition was filed. The majority held '4 My colleagues are apparently hesitant to continue the use of the "good- faith doubt" phrase They have substituted an equally unsatisfactory and ambiguous "reasonably based doubt" standard They do not explain how a "reasonably based doubt" differs from a "good-faith doubt" if, in fact, there is a distinction 15 In a recent case, a refusal-to-bargain complaint was dismissed where the employer had requested an incumbent union to prove its majority status as of the date that the contract expired Dimarck Broadcasting Corporation d/b/a KCKC, 204 NLRB No 47, Member Fanning dissenting The union there accepted the employer's challenge to its majority status, but later the union was unable to prove its majority The Board declined to find a viola- tion The underlying rationale in the Dimarck case is applicable here The Respondent made known to the Union that it doubted the Union's majority Respondent requested the Union to prove its current majority status and the Union clearly accepted the Employer's challenge when it voluntarily filed its RC petition and agreed to demonstrate its majority status in a Board-con- ducted election While I would set aside the election , which the Union lost, because of objectionable conduct, it cannot be said that the Union has demonstrated its majority status. that an "RD" petition, like an "RC" petition, may raise a question concerning representation, which re- lieves an employer of his obligation to bargain collec- tively for a new contract with an incumbent union until that question is settled. Members Fanning and Jenkins concurred in the dismissal on the ground that the respondent refused to bargain only after a Deci- sion and Direction of Election was issued by the Re- gional Director. A similar result was reached in Newhouse Broadcasting Corporation d/b/a WAPI- TV-AM-FM, 197 NLRB 885. The Board adopted the Administrative Law Judge's finding that the filing of a decertification petition subscribed to by half of the employees in the bargaining unit justified the employer's doubt of a continued majority status. The opinion of the majority here is directly contrary, in my view, to the Board's decisions in both the Telauto- graph and Newhouse cases. The majority erroneously finds that the General Counsel "sustained his burden of proving majority status during the critical period." The General Coun- sel offered no competent evidence to prove majority and relied upon the rebuttable presumption.36 As a matter of fact, the General Counsel offered no evi- dence with respect to either appropriate unit or major- ity. The record provides no guidance with respect to the appropriate unit issue , even though the Respon- dent denied in its answer that the old contract unit was appropriate, and even though the parties stipulat- ed in Case 22-RC-5124 that a unit other than the old contract unit was appropriate. As in Stoner, supra, the General Counsel relied strictly upon the presumption of the 1954 Board certification and subsequent con- tracts. I cannot understand how the majority can pre- sume on this record that the old contract unit continued to be appropriate, nor can I understand how anyone can presume continued majority in that old contract unit. As we said in Stoner, supra, the "proof of majority is peculiarly within the special competence of the union." The General Counsel's failure to offer such proof necessarily leads to the conclusion that it was nonexistent. The majority affirms the Administrative Law Judge's refusal to permit the Respondent to verify the claim of the Petitioner in Case 22-RD-308 that 71 cards had been filed with the Regional Office of the Board in support of the RD petition. I think this rul- ing was erroneous and prejudicial under the majority's view that Respondent had the burden of proving that the Union had ceased to be the majority representative. In Bernel Foam type cases, the General Counsel regularly proves majority by offering cards 36 Pp 7, 8, and 9 of General Counsel's brief to the Administrative Law Judge and refiled with the Board in support of the General Counsel's cross- exceptions make it abundantly clear that General Counsel is relying solely upon the presumption AUTOMATED BUSINESS SYSTEMS 541 which have been filed with the Regional Offices to support the "RC" petitions. I fail to see the logic of the Administrative Law Judge and the majority hold- ing that Respondent is not entitled to prove the num- ber of cards (not the identity of the card signers) submitted to the Regional Office in support of the RD petition. The General Counsel cannot argue that it was Respondent's burden to prove that the Union had lost support and simultaneously withhold the very proof that was within his possession. Moreover, while rejecting Respondent's attempt to obtain by subpena the number of employees who supported the RD peti- tion, the Administrative Law Judge received in evi- dence a letter from the Union to Respondent which had a document attached purporting to list the names of employees who favored the Union. In the vernacu- lar, what is "sauce" for the General Counsel should be "sauce" for Respondent. Finally, I note the erroneous observation in foot- note 8 above that enforcement of the Laystrom case "was denied on other grounds." Even a casual reading of the court's opinion reveals that enforcement was denied because the court, unlike the Board, was un- willing to presume the union's continuing majority at the end of the certification year. We should heed the teachings of the Seventh Circuit in the Laystrom case that the Board should refrain from handling a union's "hot chestnuts with tongs of technicalities." The court agreed with the Trial Examiner who reasoned that the Board should follow "common sense" in deciding cases of this type. The Board should not resort to "this legal business of a `rebuttable presumption' " to reach a wholly unrealistic result. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT warn or threaten our employees that we will close or move the plant or cut back our production if they support a union. WE WILL NOT promise benefits to our employees or threaten to take away existing benefits to get them to reject a union. WE WILL, upon request, bargain collectively in good faith with Local 432, International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive bargaining represen- tatives of the employees described below. If an agreement is reached, we will sign such an agree- ment. The employees are: All production and maintenance workers, jani- tors, and truck drivers employed at out Clifton, New Jersey, location, excluding expeditors, en- gineering, research and model shop employees, technicians engaged in tests and troubleshoot- ing in final and sub-assembly, office and cleri- cal employees, professional employees, guards and supervisors. AUTOMATED BUSINESS SYS- TEMS (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 compli- ance with its provisions may be directed to the Board's Office, 16th Floor, Federal Building, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-3240. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Trial Examiner: This is a consolidated proceeding heard before me in Newark, New Jersey, on May 24, 25 and 26, 1972. Case 22-RC-5124 is a representa- tion proceeding; involved therein is the validity of certain objections to the conduct of an election, filed by the Union, alleging that Respondent by certain preelection miscon- duct, including threats, wage increases, and promises of other employment benefits, precluded the holding of a fair election and rendered the results of that election, which were adverse to the Union, invalid. Case 22-CA-5124 is an unfair labor practice proceeding, initiated while the objec- tions to the election were still under investigation; the com- plaint therein alleges that certain conduct by Respondent, paralleling in substantial part the conduct alleged in the objections, constituted unlawful interference with employee rights in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. In addition, the complaint al- leges that, on or about September 28, 1972, and thereafter, Respondent refused to bargain with the Union, thereby violating Section 8(a)(5) and(1) of the Act. Because of common issues the Regional Director consoli- dated the two cases for hearing, ruling, and decision by a Trial Examiner with the further direction that thereafter the representation proceeding, Case 22-RC-5124, be transfer- red to and continued before the National Labor Relations Board in Washington, D.C. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record I in this consolidated proceeding, upon my observation of the witnesses, and after due consid- eration of the briefs filed by General Counsel and Respon- dent, I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION Respondent is a division of Litton Business Systems, Inc., a New York corporation, which is in turn a subsidiary of Litton Industries, Inc. Respondent has its principal office in Carlstadt, New Jersey, and operates several plants including a plant in Clifton, New Jersey, the particular facility in- volved in this proceeding. During the past fiscal year Respondent, which manufac- tures, sells, and distributes business equipment and related items, shipped products valued in excess of $50,000 to desti- nations in other states. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent also admits, and I find, that Local 432, the Union herein, is a labor organization within the meaning of Section 2(5) of the Act. II THE RELEVANT EVIDENCE A. Chronology and Background On or about October 1, 1969 Respondent and the Union entered into a collective-bargaining agreement covering, es- sentially, Respondent's production and maintenance em- ployees at its Clifton plant.2 The term of this agreement, which contained a lawful union-security clause, was for 2 years with an expiration date of September 30, 1971. On July 1, 1971, the Union wrote to Respondent requesting negotiations for a new agreement. On July 29, 1971, Re- spondent replied that it would not negotiate with the Union because it had reasonable doubt as to the Union's majority status. During this period and prior thereto there had been some dissident activity among the employees challenging the Union and its leadership. As a result there was a flurry of unfair labor practice charges and representation petitions which, except for the two cases involved in the instant pro- ceeding, have not been disposed of, but which are part of the background of this proceeding. The dissident activity gave rise to the filing of unfair labor practice charges by the Union against Respondent. Pur- suant to these charges, General Counsel issued a complaint i On July 5, 1971 Respondent filed a motion to correct the Record urging certain corrections in the text of the transcript of hearing The motion is unopposed, I am satisfied that the proposed corrections are proper and I grant the motion I hereby designate Respondent's Motion as TX Exh I and admit it into the record 2 This agreement was the latest in a series of agreements which began in 1954 with a certification issued by the Board reported at 109 NLRB 314 However, the identity of the employing enterprise and the scope of the unit was substantially altered by later events By agreement of the parties in February 1969, the scope of the unit was confined, for purposes relevant here, to the production and maintenance employees at the Clifton plant against Respondent on July 16, 1971, alleging that Respon- dent unlawfully assisted the dissident employees (Case 22- CA-4482). On July 19, 1971, three days after the issuance of this complaint, a petition was filed with the Board to decertify the Union (Case 22-RD-308). On July 29, 1971, the same day Respondent rejected the Union's bargaining requests, the Regional Director dismissed the petition to decertify on the ground that complaint had issued in Case 22-CA-4482. Counsel for petitioner in Case 22-RD-308 promptly ap- pealed from the Regional Director's dismissal, notified Re- spondent of the appeal, advised Respondent that it was filing unfair labor practice charges against Respondent for favoring the Union,3 and further advised Respondent that it would be an unfair labor practice for Respondent to bargain with the Union. In the meantime the Union filed an additional unfair labor practice charge against Respondent alleging for the first time an unlawful refusal to bargain. Respondent had not receded from its refusal to bargain of July 29 and the appeal from the dismissal of the decertification petition was still pending before the Board. On September 20, 1971, a complaint issued on the refusal-to-bargain charge (Case 22- CA-4564). At this point two complaints against Respon- dent were outstanding, the unlawful assistance complaint in Case 22-CA-4482 and the refusal-to-bargain complaint in Case 22-CA-4564. On the basis of the latter complaint, the Union on Sep- tember 23, 1971, made a second written demand upon Re- spondent for bargaining negotiations. At this time the current collective-bargaining agreement was still in effect and the appeal from the dismissal of the decertification was still pending. However, on September 28, 1971, the Board upheld the dismissal of the decertification proceeding on the stated ground that a complaint had issued on September 20 against Respondent alleging a wrongful refusal to bargain with the Union. Respondent never replied directly to the Union's bargain- ing request of September 23, 1971. Instead, it issued a letter to all employees, dated September 28, 1971, stating it would not recognize the Union, that the best way to resolve the question concerning representation was to have a secret- ballot election but that the Union was blocking an election by filing unfair labor practice charges. The next step in the chronology occurred on October 13, 1971.On that day a consolidated hearing was opened before a Trial Examiner to consider the only two matters left unre- solved, the complaint in Case 22-CA-4482 alleging that Respondent had unlawfully assisted the dissident employ- ees and the complaint in Case 22-RC-4564 alleging Respondent's unlawful refusal to bargain. Evidence was taken over a period of several days. During the course of the hearing, however, and before it was completed, concurrent arrangements were consummated to dispose of the matters in dispute. Pursuant to these arrangements, the Union filed a petition for certification, Respondent agreed to a stipula- tion for certification upon consent election, and the Union withdrew the unfair labor practice charges which were the 7 These charges were filed The Regional Director dismissed the charges on September 16, 1971, and the General Counsel on October 9, 1971, upheld the dismissal. AUTOMATED BUSINESS SYSTEMS predicate of the ongoing unfair labor practice hearing. The Trial Examiner, apprised of these activities, entered an Or- der on December 22, 1971, granting approval of the Union's withdrawal of its charges, granting also General Counsel's motion to withdraw the complaint and closing the record. At this point the only matter pending before the Board was the petition for certification and the stipulation based thereon, identified on the Board's docket as Case 22- RC-5124, one of the two cases now pending before me for resolution. The stipulation provided that the election be conducted on January 19, 1972, the election was conducted on that day, and the results were adverse to the Union. The Union filed objections to the conduct of the election, al- ready summarized. As already noted, the Union also filed charges on February 10, 1972, in Case 22-CA-4795, predi- cated on substantially the same conduct cited in the objec- tions to the election, and alleging, in addition, a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. These are the two consolidated cases presented for resolu- tion here. Preliminarily, it should be noted that Respondent urges, inter alia, that the refusal-to-bargain allegation is procedur- ally barred from litigation in the instant hearing because it was presented and evidence was taken thereon in the prior aborted litigation. This contention will be dealt with in con- nection with the consideration of the refusal-to-bargain is- sue. Respondent, however, urges no bar to the allegation that Respondent violated Section 8(a)(1) of the Act by way of threats, wage increases and promises of benefit to dis- courage adherence to the Union, or to the allegations in the objections to the election that such conduct or closely relat- ed conduct invalidated the results of the election. This con- duct, assuming it occurred, postdated the earlier unfair labor practice proceeding and was not involved there. We turn to a consideration of the 8(a)(1) allegations. B. The 8(a)(1) Allegations 1. Threats to move or close the plant The complaint alleges, and Respondent denies, that dur- ing the month of January 1972 Plant Manager Arch Mc- Dougall, General Foreman William Renn, and Manufacturing Manager Ross Vandevander4 warned Respondent's employees at its Clifton plant that if the Union won the election, the plant would move or close. A parallel allegation was made in the Union's objections to the election.' Arch McDougall, William Renn, and Ross Vandevander are admittedly supervisors and agents of Respondent. Several employees testified to conversations with Renn relating to moving or closing the plant.6 Frank Taddeo testi- fied that during the lunch hour on January 19, the day of 4 The name "Vandevander" appears as corrected at the hearing 5 All of the objections here are timely in that they relate to conduct occur- ring during the critical preelection period The petition for certification was filed on October 18, 1971, the stipulation was executed on December 6, 1971, and the election was conducted on January 19, 1972 6 At the opening of the hearing counsel for Respondent moved for the sequestration of witnesses The motion was granted 543 the election, and immediately prior thereto Renn ap- proached him at his work area and advised him to "wise up" and vote no in the election. Renn added the alternative that the place would close down, that Taddeo's job would go out the window but that the Company would take care of Renn by transferring him to its plant in Virginia. William Chambers, like Frank Taddeo an employee in the tool and die department which was then under the su- pervision of Renn, testified to a similar conversation. Chambers stated that Renn came to his work bench a few days before the election, discussed the election and said that "everyone was staying with Archie [McDougall, the plant manager]." Renn commented "I hope you know which way to go," and then added that in his opinion the employees really had no choice because "if you don't vote with the company to do away with the union they will probably move down to Damascus." ' Renn also complained that he would not welcome the advent of the Union because he (Renn) would be transferred to Damascus. Employee Joseph Jagacinski-Renn was also his supervi- sor at that time-testified that Renn came to his work sta- tion at mid-morning on the day before the election and informed him that if the employees voted the Union in, the Company would move out and the employees would be out of jobs. According to Jagacinski, Renn opened this conver- sation with the observation that the plant was not the world's worst place to work, that Jagacinski was not a young man any more, that he would have a problem finding ajob elsewhere, and that he should vote the union out. Employee Marvin Brenner testified that he had several conversations with Renn concerning the Union and the forthcoming election and that these conversations took place between the first of the year and the date of the election. In one of these conversations, according to Bren- ner, Renn indicated that if Brenner had aspirations with the Company-Brenner was hoping for a managerial posi- tion-it would be better if there were no union in the plant. Brenner stated further that in other conversations Renn asked him to vote against the Union, told him it was "Litton's policy not to have a union," and talked about the possibility of the company moving if the union won 8 Employee Vera Tisko also testified on this aspect of the case. Her testimony was that Renn came to the work station where she and employee Arnold Wonder performed their jobs. In her presence Renn told Wonder that if the Union came into the plant Wonder would be transferred to Bristol, Virginia, or Fall River, Massachusetts, because the product on which he was working would be transferred there. Won- der inquired where Tisko would be transferred and Renn said he did not know. William Renn, who appeared as a witness for Respon- dent, testified that at the time of the election on January 19, 1972, he carried the titles of tool room foreman and chief inspector, and that he supervised about 18 toolmakers and Damascus is in Virginia, not far from Bristol 8 I am satisfied that Brenner was faithfully reporting his best recollection as to his conversations with Renn and as to statements made by Arch Mc- Dougall hereinafter discussed However, his memory was less than clear and prehearing statements he had submitted to Respondent's counsel and repre- sentatives of the General Counsel, respectively, further impair the probative value of his testimony. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machinists and 27 inspectors. Renn acknowledged that he had talked about the forthcoming election with about 100 employees but denied saying to any employee that the plant would move or close down if the Union came in. Renn stated that he had been told at supervisory meetings not to coerce, offer or promise anything to employees, to permit discussion about the forthcoming election, to permit posting of signs and, only if asked, to give his personal opinions. According to Renn, the extent of his conversations with employees concerning the election or the union was to give his personal opinion. On the other hand, Renn admitted that he had engaged in preelection conversations with Taddeo, Chambers, Jaga- cinski, and with Arnold Wonder in the presence of Vera Tisko, but could not recall having a conversation with Bren- ner about the election. Moreover, Renn acknowledged that the subject of the plant moving or closing had come up in these conversations but stated as to each instance that the employees, and not he, had raised the subject. Specifically, he testified that he had asked Taddeo to "vote our way," that Taddeo had mentioned rumors that the plant would close down or move to Virginia or Fall River, and that he, Renn, replied that he hoped the plant would stay. Renn testified that he did tell Arnold Wonder the latter would probably go to Fall River, but explained his remark on the basis that this was pursuant to a longstanding arrangement to move the product on which Wonder was working out of the Clifton plant. As to Renn's conversation with Cham- bers, Renn said that Chambers had asked him his opinion about the election, that Chambers was concerned about rumors that the plant would close its doors and that Renn had said he had not heard such rumors and that the only possibility he heard was that in the event of a strike, certain production lines would have to be transferred to other plants. According to Renn, he suggested to Jagacinski, in response to the latter's injury, that Jagacinski should "go company" in the election and that the Company "would be quite happy with the Union out." Renn denied, however, telling Jagacinski that the latter would be out of ajob or that the Company would move out if the Union was voted in. Appraising all the evidence of record in this regard, I am satisfied not only that Renn did in numerous conversations urge employees to vote against the Union and made it clear that this was Respondent's view but that he also made refer- ence to the fact that Respondent would shut down its opera- tions in whole or in part or move the plant if the Union came in. With the exception of Brenner, whose memory lacked certainty, the remaining employee witnesses credibly testi- fied that Renn urged them to vote against the Union and adverted to the fact that plant operations would be directly and adversely effected if the Union should win the election. As already indicated, the witnesses were sequestered on motion of Respondent's counsel. But even apart from this circumstance, the consistency of their testimony as to Renn's statements is cogent indication of their accuracy. Moreover, Renn in large part confirms the accuracy of their testimony. In view of Renn's admitted hostility to the Union, his acknowledgement of approximately 100 preelec- tion conversations with employees, it strains credulity to believe that in each instance as to which he testified, it was the employee, and not Renn who raised the issue of a plant shutdown or plant removal. For all the foregoing reasons and based upon my observation of the witnesses, I am satis- fied and I find that William Renn did in the course of his preelection conversations with the employees indicate to them that the plant would move or close if the Union pre- vailed in the forthcoming election. The activities of Ross Vandevander, manufacturing man- ager, were, so far as the record reveals, less extensive than those of Renn in this regard. Involved is one conversation between Vandevander and employee Marie Markitto and Norma Piccolo a few days before the January 19 election. There was agreement that Markitto and Piccolo stopped Vandevander as he was crossing their work station and asked him whether the Company was going to move. The testimony as to what was said thereafter varies. Markitto testified that Vandevander replied that he was in on the planning and if the Union prevailed in the election of Janu- ary 19 the plant would move out on the 20th. Piccolo testi- fied that Vandevander responded, "Whatever Archie [McDougall] says is honest." Piccolo interjected, "Archie never said anything about moving." According to Piccolo, Vandevander retorted "Archie is an honest man, you can believe what I'm telling you, too. I was in on the planning." Vandevander added "Wait until the 20th." Vandevander's version of the conversation varied somewhat. His testimony was that Markitto and Piccolo asked him -if the plant was going to close at which time I told them that if they heard Mr. McDougall's speech that he had not said that the plant was going to close and that they could believe him and believe what I was saying and that there was no intentions of the plant closing, but if the Union was to win the election, that there were plans to move some of the products to another plant to continue production until the situation was settled, at which time they would return. [Emphasis supplied.] Vandevander explained further that the moving plans were predicated on the assumption that Respondent would have to negotiate with the Union if it prevailed in the election and the possibility of a strike in that situation. Vandevander was admittedly one of the authors of Respondent's strike plan. Vandevander's account of his own remarks lends cre- dence to the testimony of Markitto and Piccolo. I find that Vandevander did convey to Markitto and Piccolo the mes- sage that product lines would be moved out of the plant and that this would occur on January 20th if the Union won the election. The role of Plant Manager McDougall on this aspect of the case can also be described briefly. As Respondent con- cedes, McDougall addressed the employees on at least two occasions prior to the election. Instead of addressing all the employees at a single mass meeting, McDougall spoke to them in departmental groups. Testimony was adduced from several employees that in the course of his remarks Mc- Dougall stated, variously, that if the Union won the elec- tion, the Mag-Ledger would not be produced in the plant; that he could not promise the Mag-Ledger would stay in Clifton, if the Union prevailed in the election; and that he did not know what would happen to the Mag-Ledger if the Union won the election. The Mag-Ledger was a major item AUTOMATED BUSINESS SYSTEMS in the Clifton plant production and a large number of em- ployees worked on it. Respondent defends on the ground that evidence was lacking to establish that McDougall threatened to move or close the plant in haec verba and that only a handful of witnesses testified to statements McDougall did make. On the other hand, McDougall, who testified extensively as Respondent's witness, did not deny making the statements attributed to him earlier in the hearing by the employee witnesses-indeed, he was not questioned on this matter. Under all the circumstances I find that McDougall did indicate to the employees that a union victory in the election would imperil the continuation of Mag-Ledger production and that such a threat to curtail production because of a union election victory differs only in degree, not in kind, from a threat to move or close the plant. In sum, I find that a preponderance of the evidence war- rants a finding that Respondent made warnings and threats to its employees that the plant would move or close, or that production would be substantially curtailed, if the Union won the election I find further that such conduct violates Section 8(a)(1) of the Act. 2. The grant of wage increases The complaint alleges, and Respondent denies, that on or about January 14, 1972, Respondent granted wage increases to its employees to discourage their support of the Union. The identical conduct was also alleged in support of the Union's objections to the election. On January 14, 5 days before the election, Respondent addressed a memorandum to all employees notifying them that pursuant to a ruling of the Wage and Price Control Board, a prior 5.5-percent wage increase which had been made effective on November 15, 1971, was now increased to 6 percent retroactive to October 1, 1971.9 The memoran- dum explained further that Respondent had requested gov- ernmental approval on October 12, 1971, for a wage increase of 6 percent together with a number of new and improved benefits; that it had been limited to a 5.5-percent increase by prior Wage and Price Board guidelines and had been limited also on the matter of retroactivity; that the board had just liberalized its rulings to permit wage increas- es to 7 percent including retroactivity; and that, according- ly, Respondent was effectuating its longstanding plan to put the 6-percent wage increase into effect. General Counsel urges that the January 14 wage increase was announced and given to counteract the Union's cam- paign. It might fairly be conjectured that Respondent hoped that the wage increase of January 14 would have that result. Yet it is undisputed that Respondent in this regard was merely putting into effect an increase which had been long planned and promised. Just as an employer may not initiate a wage increase for the purpose of frustrating an organiza- tional campaign among its employees, neither may it with- hold a previously scheduled increase to achieve that end. I find that neither the evidence nor the law warrants a finding that Respondent committed an unfair labor practice by 9 No allegation is made in the instant proceeding that the November increase was improper granting the January 14 wage increase. 3. Promises of benefit 545 The complaint alleges, and Respondent denies, that Re- spondent promised its employees benefits in their terms and conditions of employment to discourage their support of the Union. The same issue was also dealt with by the Regional Director in his report on objections to the election. It appears that early in January 1972, probably on Janu- ary 10, Respondent through its supervisors distributed to all its Clifton employees a booklet entitled "Welcome to Litton ABS." The booklet is typical of those frequently distributed in large organizations welcoming employees to the compa- ny, relating the history and other information concerning the company, and setting forth in general terms the working conditions of the plant including such matters as employ- ment benefits, parking facilities, lost and found arrange- ments, and the like. The booklet closes with a hortatory message to employees and wishes them good luck. On the last page of the booklet a notation appears that "the con- tents are presented as a matter of information only and are not to be understood as a contract between the Company and its employees.-The Company reserves the right to change, suspend or cancel all or any part of them as circum- stances may require." In fact, the booklet was an updated version of an earlier booklet which had been distributed to all employees containing the same final notation and re- flected changes which had occurred since the earlier booklet was printed. General Counsel urges, in essence, that the distribution of the revised booklet when the January 19 election was ap- proaching was a promise of benefits calculated to discour- age adherence to the Union. In support of this contention General Counsel cites testimony from a few employees that Renn, who distributed the booklet to the toolroom employ- ees among others, stated that the booklet was a "contract" or "as good as a contract." Frank Taddeo testified further that when he noted that the Company reserved the right to make changes, Renn replied that he personally guaranteed that the Company would back up the commitments in the booklet. Renn, on the other hand, denied stating to employ- ees that the booklet was a contract but recalled that when an employee made a comment that he would rather have a contract, Renn did reply "In my opinion this is just as good." That the booklet was a source of concern among the employees is clear, however. On January 11, 1972, plant manager Arch McDougall directed a memorandum to all employees which began: I have heard a number of employees express concern and a certain degree of suspicion over the contents of the last page in the employee handbook which was distributed yesterday. The reference was to the notation reserving the right to make changes in the employment conditions outlined in the booklet. The memorandum went on to explain that the need for an updated booklet to spell out the rights and benefits 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees had been recognized "last week,"10 that the reservation of the right to make changes, copied from the earlier booklet, had been mistakenly included, and that Re- spondent had no intention of taking any benefits away. The memorandum then cited as an example that a union had been voted out in its Ogden, Utah, plant, and that the Og- den employees not only suffered no loss but gained addi- tional benefits. The memorandum closed with a pledge that changes would be made from time to time to add new benefits or improve existing benefits as the need arose, that the employees would be better off without a union contract because the Company would not be restricted by such a contract from changing its benefits , and assured the em- ployees that they would suffer no loss by "voting out the union." I believe the distribution of the booklet, as such, and the text of the booklet would not, standing alone , warrant a finding that Respondent thereby made a promise of benefits to employees to discourage adherence to the Union. Nor do I attach particular significance to the fact that Renn may have characterized the booklet as a contract or merely stat- ed that it was "as good as" a contract. What I do find significant, however, is Arch McDougall's memorandum of January 11 to the employees. The unmistakable impact of that memorandum is that existing benefits would not be curtailed, that the employees in Clifton, like the employees in Ogden, would be better off without a union, and that a union contract would only have the consequence of barring the Respondent from adding to, or improving , the benefits already provided. In this context, the exhortation to vote the union out is patently an effort to discourage union adher- ence by promise or benefits and a violation of Section 8(a)(1) of the Act. I so find. 4. The posting of antiunion notices In its objections to the conduct of the election, the Union alleged that Respondent used and/or permitted the plant premises to be used , contrary to its published rules, in sup- port of an extensive "Vote No" campaign in which the employees were "inundated" with threats of adverse action unless they voted "No" in the election . The Regional Direc- tor, in his report on objections , notes that his investigation disclosed that Respondent permitted both prounion and antiunion notices to be posted in the plant , but suggests that the question raised by the alleged failure of Respondent to police its plant with regard to antiunion signs "may raise substantial and material issue" if merit is found in the objec- tions relating to threats to employees of loss of jobs or of shutdown or removal of the plant. The complaint in the unfair labor practice proceeding makes no allegation that the conduct in question constitutes an unfair labor practice. Under these circumstances it is not quite clear to what extent this issue is presented in the instant proceeding. How- ever, brief reference will be made . The parties to the instant proceeding stipulated, consistent with the Regional Director's finding, that Respondent permitted prounion 10 In his oral testimony, Arch McDougall stated that he had requested the preparation of an updated booklet immediately after November 15, 1971 signs as well as antiunion signs to be posted on plant prem- ises. General Counsel also concedes that there is no evi- dence that Respondent was responsible for the posting of the signs. Under these circumstances, the fact that the actu- al signs posted may have been predominently antiunion in nature is of little import. Frank Taddeo testified, and Renn agreed, that Renn stopped Taddeo from ripping down an antiunion sign . Inasmuch as Taddeo had not put up the sign in question, this action by Renn was wholly consistent with Respondent's policy. I find no basis on this record for finding that Respondent's conduct in this regard constituted an unfair labor practice (an allegation not even made), or that, stand- ing alone, it is valid basis for setting aside an election. Nor, in the particular circumstances of this case, do I see any point in exploring whether this conduct, on the part of Respondent, otherwise legal and proper, can be rendered illegal or improper because of other conduct by Respon- dent. C. The 8(a)(5) and (1) Allegations The complaint in the instant case , in addition to alleging the independent violations of Section 8(a)(1) of the Act, also alleges a wrongful refusal to bargain within the meaning of Section 8(a)(5) and ( 1) of the Act. On this aspect of the case Respondent interposes both procedural and substantive de- fenses which are dealt with hereunder. 1. The procedural issue The complaint alleges specifically that on or about Sep- tember 28, 1971, and thereafter, Respondent refused to rec- ognize and bargain collectively with the Union as the exclusive bargaining representative of its production and maintenance employees. This allegation had its counterpart in the earlier complaint in Case 22-CA-4564, issued on September 20, 1971, which also contained a refusal-to-bar- gain allegation . As already noted, a hearing in Case 22- CA-4564 began on October 13, 1971, evidence was adduced but, before the taking of evidence was completed , the hear- ing was terminated by agreement of the parties, and the unfair labor practice charges and the complaint which gave rise to the hearing were withdrawn. Notwithstanding that the earlier hearing was abruptly terminated and that no decision issued , Respondent made a motion at the opening of the instant hearing to bar the admission of any evidence relating to the refusal-to-bargain allegation on the ground that that issue had already been subject to litigation in the prior case and that relitigation is foreclosed. I denied the motion. Inasmuch as the prior case was terminated prior to the close of the hearing and no decision issued, the defense of res adjudicata is not urged and is not available to Respon- dent. Rathbun Molding Corporation, 76 NLRB 1019, 1020 (1948). Moreover, res adjudicata aside, Respondent's posi- tion is not legally tenable. In a situation not too dissimilar from the instant case, the Court of Appeals for the Seventh Circuit held that the Board was not estopped from hearing a complaint based on conduct alleged in an earlier com- plaint which was , as here, withdrawn pursuant to an agree- AUTOMATED BUSINESS SYSTEMS 547 ment for a representation election. N.L.R.B. v. Zimnox Coal Company, 336 U.S. 516, 517 (1964)." See also Wallace Corp. v. N.L.R.B., 323 U.S. 248, 254 (1944); N.L.R.B. v. Lake Superior Lumber Co, 167 F.2d 147, 150 (C.A. 6, 1948). To be sure, under other circumstances Respondent's mo- tion would not be wholly without appeal. The prior labor practice proceeding was aborted as part of what amounted to a settlement agreement in which the Union consented to forego its unfair labor practice allegations including the refusal-to-bargain charge in return for Respondent's con- sent to participate in a secret-ballot election to put the ques- tion of representation to rest. Settlement agreements are not to be lightly disregarded and the Board, as a matter of policy, normally respects such agreements. Where, however, because of new and independent unfair labor practices, or for other reasons, the settlement agreement "has failed of its purpose" (Jackson Manufacturing Company, 129 NLRB 460, 462 (1960) ), there is no estoppel to further Board proceed- ings. Wallace Corp., supra. That is precisely the situation here. Respondent did not exercise the good faith implicit in its commitment to participate in a fair election. Instead, Respondent engaged in new and independent unfair labor practice proceedings postdating the settlement agreement which precluded the question of representation from being laid to rest in a fair election. The settlement failed of its purpose. There is no basis here for estoppel and the denial of Respondent's motion to bar litigation of the refusal-to- bargain allegation in the instant proceeding is reaffirmed.12 2. The substantive issue Turning now to the merits, Respondent denies that it engaged in a wrongful refusal to bargain. At first blush it would appear that the record adequately supports the alle- gation that Respondent did unlawfully refuse to bargain. There is no issue as to appropriate unit. Paragraph 15 of the complaint alleges, and Respondent's answer admits, that the appropriate unit is: All production and maintenance employees employed by the Employer at its Clifton and Orange , New Jersey locations, including janitors , truckdrivers, manufactur- ing process technicians , inspection department techni- cians, model shop employees , tool room inspectors and expeditors, but excluding engineering, research office clerical employee plant clerical employees, profession- al emiloyees, guards and supervisors as defined in the Act.' " Zimnox, unlike the instant case, was based on a mere recapitulation of earlier allegations Here , as already noted , additional unfair labor practices were alleged which postdated the earlier hearing i2 A contrary determination would in effect constitute a license to Respon- dent to cajole the Union to surrender its right to obtain a bargaining order in an unfair labor practice case by promising the Union a quick secret-ballot election and then to frustrate that objective by engaging in conduct making a fair election impossible U The complaint is somewhat imprecise in this regard Par 13(2) of the complaint makes reference to a slightly different unit which identifies the employees covered by the 1969-1971 collective-bargaining agreement be- tween Respondent and the Union As part of the arrangement for the consent election conducted on January 19, 1972, Respondent and the Union agreed to slight modifications in the unit description These modifications appear in Respondent also admits, as the complaint alleges, that it refused to bargain with the Union on September 28, 1971, and thereafter. As of September 28, 1971, the collective- bargaining agreement between Respondent and the Union was still in effect. That agreement did not expire until mid- night of September 30, 1971. Moreover, the agreement con- tained a lawful union-security provision the effect of which was to require all employees covered by the agreement to be union members. Under these circumstances General Counsel invokes the familiar presumption that the majority status of an incumbent union under a valid collective-bar- gaining agreement is presumed to continue. It follows that Respondent was under a legal obligation to bargain with the Union. Respondent does not quarrel essentially with this analysis but correctly urges, as General Counsel concedes, that such a presumption of majority is rebuttable. It can be, and is, rebutted where the employer asserts a doubt of the incum- bent union's continued majority status if "the assertion of doubt is raised in a context free of unfair labor practices and is supported by a showing of objective considerations pro- viding reasonable grounds for a belief that a majority of the employees no longer desire union representation." Southern Wipers, Inc., 192 NLRB 816 (1971). As to the latter requirement, Respondent argues that the record affords abundant evidence of objective consider- ations underlying its doubt of the Union's continuing ma- jority status. In this connection Respondent points to the fact that as early as May 1971 some employees distributed handbills at the plant gates indicating their dissatisfaction with the Union; that a petition for decertification of the Union was filed on July 19, 1971, in Case 22-RD-308; that on July 29, 1971, it rejected an early union request for bargaining negotiations because of its doubt concerning the Union's majority status; that Respondent was advised on August 12, 1971, that the dismissal of the decertification petition in Case 22-RD-308 was being appealed, that decer- tification efforts were continuing and that for Respondent to bargain with the Union under these circumstances would be deemed an unfair labor practice; and that on September 8, 1971, and thereafter Respondent was further advised that a majority of the employees were dissatisfied with the Union. Based on all these considerations and in the fact of the Union's September 23 request for bargaining negotia- tions Respondent notified the employees on September 28, 1971, that it would not recognize the Union. Standing alone, this evidence would afford cogent sup- port for Respondent's contention that objective consider- ations underlay its doubt of the Union's continuing majority status and its withholding of recognition. But this evidence does not stand alone. So far as the pamphlet distri- bution of May 1971 was concerned it appeared that no more the unit description contained in par 15, which Respondent admits consti- tutes an appropriate unit Par 19 of the complaint alleges that Respondent refused to bargain with the Union as the exclusive representative of the employees "in either of the units described above in paragraphs 13(2) or 15 " Respondent's answer admits the allegations of par 19 The differences be- tween the two units is insubstantial in view of the large number of employees involved and Respondent stated on the record at the hearing that it was not raising a unit issue In these circumstances General Counsel correctly con- tends that the pleading of alternative units does not invalidate the complaint Rem-Chem Co, 169 NLRB 376, 381-382 (1968) 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than "two, three or four" employees were involved. The filing of a petition to decertify the Union in July 1971 might appear to be a more significant circumstance . However, the mere filing of a decertification petition is not dispositive of the issue . See Windemuller Electric, Inc., 180 NLRB 686, fn. 1 (1970). This is particularly true in the instant case where the filing of the petition followed by three days the issuance of a complaint in Case 22-CA-4482 alleging that Respon- dent had unlawfully assisted the dissident employees.14 Moreover, the petition for decertification was dismissed by the Regional Director on July 29, 1971, the dismissal was sustained by the Board on September 28, 1971, and an intervening complaint issued alleging that Respondent had unlawfully refused to bargain . Nevertheless , Respondent on September 28, 1971 , and thereafter withheld recognition from the Union. In these circumstances Respondent 's reliance upon com- munications it received from counsel for petitioner in Case 22-RD-308 on August 12, 1971, and September 8, 1971, to the effect that decertification efforts were still continuing and that there was extensive dissatisfaction with the Union among the employees is of doubtful import . At best, these communications were self-serving declarations and were colored, at least, by the fact that a complaint had issued alleging that the dissident movement among the employees was itself the product of unlawful assistance. But more important than all of this is the fact that Respondent's asserted doubt of majority status must be "raised in a context free of unfair labor practices ." Southern Wipers, Inc., supra. As has been found herein , Respondent did commit unfair labor practices and it is at least arguable in view of the complaint issued on July 16, 1971, in Case 22-CA-4482 that Respondent had unlawfully assisted the dissident employees even before the petition for decertifica- tion was filed on July 19, 1971. At the very least, the weight which Respondent might otherwise have accorded the filing of the representation petition is considerably abated in the context of the earlier complaint lodged against it. In addition, Respondent is in an unenviable position when it presently complains. As of December 22, 1971, when an order was entered discontinuing the earlier unfair labor practices proceeding against a background in which the parties had agreed to a consent election, no more was required of Respondent to relieve itself from any liability for prior unfair labor practices or from any obligation to bargain than to refrain thereafter from any conduct consti- tuting an unfair labor practice or from any conduct consti- tuting interference with the election . As already shown, Respondent did not so refrain . This in itself reflects further on the sincenty of the doubt it had asserted and continued to assert as to the continued majority status of the Union. It follows that the presumption of the Union's majority status of the Union as an incumbent representative of the employee is operable and that Respondent has failed to rebut that presumption . 15 Respondent's duty to recognize 14 As already noted, no decision ever issued in Case 22-CA-4482 which had been consolidated with the refusal-to-bargain complaint in Case 22- CA-4564 for hearing and decision The charges and the complaints therein were withdrawn after the stipulation for certification upon consent election was executed and bargain with the Union under these circumstances is clear. Its admitted refusal to do so is a violation of Section 8(a)(5) and (1) of the Act. I so find In this frame of reference Respondent's argument that a bargaining order should not be entered in any event is inap- posite. The argument, based on Gissel Packing Co., 395 U.S. 575 (1969), is that "even if the Trial Examiner were to find contrary to Respondent that the union enjoyed a majority and that the 8(a)(1) activity occurred, the activity was nei- ther numerous nor pervasive" (Res. Brief to Trial Examiner, p. 52). Respondent's position is doubly vulnerable. In the first place, the logic of the Gissel rationale as to the propriety of a bargaining order is predicated on the acceptability of utilizing authorization cards as an alternative to a Board election for determining the majority status of a union. Here, the majority status of the Union derives not from authorization cards but from its status as the incumbent bargaining representative of the employees. In the second place, even if one were to assume the applicability of the Gissel criteria here, the threats to move or close the plant or to substantially curtail production, even without the added factor of promises of benefit, is the kind of conduct not readily remediable by the posting of a remedial notice, and of such gravity as to render election unlikely. A bargaining order here is plainly warranted. General Stencils, Inc., 195 NLRB 1109 (1972). CONCLUSIONS OF LAW 1. By warning and threatening its employees that the plant would move or close, or that production would be substantially curtailed if the employees voted for union rep- resentation, Respondent violated Section 8(a)(1) of the Act. 2. By promising employees benefits in their working con- ditions, and, conversely, by promising not to curtail existing benefits if the employees rejected union representation, Re- spondent violated Section 8(a)(1) of the Act. 3. By the conduct outlined in paragraphs I and 2 herein, Respondent interfered with the employees' freedom of choice in the election conducted on January 19, 1972. 4. All production and maintenance employees employed by Respondent at its Clifton and Orange, New Jersey loca- tions, including janitors, truckdrivers, manufacturing pro- cess technicians, inspection department technicians, model shop employees, toolroom inspectors and expeditors, but excluding engineering, research, office clerical employees, plant clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit ap- propriate for the purpose of collective bargaining within the 15 Reference may be made here to the letter of September 8, 1971 written by counsel for petitioner in Case 22-RD-308 to Respondent which states that 71 cards "representing a majority of those employed in the unit had been filed with the Regional Office of the N L R B " in support of the petition for decertification. This self-serving declaration was, for obvious reasons, in- competent to establish that a majority of the employees had rejected the Union and, indeed, Respondent stated that the letter in question was not put into evidence for the truth of the statements contained therein Respondent also made an abortive effort to have the General Counsel produce the cards which had been filed with the Board in the decertification proceeding. For equally obvious reasons, such evidence would be inadmissible and incompe- tent The short of the matter is that General Counsel rested his showing of majority on the presumption of an incumbent's majority status and Respon- dent, did not rebut that presumption AUTOMATED BUSINESS SYSTEMS meaning of Section 9(b) of the Act. 5. At all material times the Union has been the duly designated bargaining representative of the employees in the aforesaid unit. 6. By refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid unit Respondent has violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent did not violate the Act in the other re- spects alleged in the complaint. REMEDY In addition to directing Respondent to cease and desist from engaging in the several unfair labor practices found, the character and scope of those violations makes appropri- ate a further order directing Respondent to refrain from infringing in any manner upon the rights guaranteed its employees under Section 7 of the Act. Affirmative relief is also appropriate here. Accordingly, I shall direct Respondent to bargain collectively, upon re- quest, with the Union as the exclusive bargaining represen- tative of the employees in the unit found appropriate herein, and to embody any understanding reached in a signed agreement. The remedial order will also include the custom- ary provisions relating to the posting of notices and related matters. Finally, I shall recommend that the election in Case 22- RC-5124 be set aside and, in view of the bargaining order entered herein, that Case 22-RC-5124 be dismissed. 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 Order: ORDER16 Respondent, Automated Business Systems, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Warning or threatening its employees that it will close or move the plant or that it will substantially curtail produc- tion if the employees seek union representation. 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 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 549 (b) Promising its employees benefits or threatening to curtail existing benefits if the employees reject union repre- sentation. (c) Refusing to recognize or bargain collectively with Lo- cal 432, International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO, as the exclusive bargaining representative of all production and maintenance employ- ees employed at its Clifton and Orange, New Jersey loca- tions, including janitors, truckdrivers, manufacturing process technicians, inspection department technicians, model shop employees, toolroom inspectors and expeditors, but excluding engineering, research, office clerical employ- ees, plant clerical employees, professional employees, guards and supervisors as defined in the National Labor Relations Act, as amended. (d) In any other manner interfering with, restraining or coercing its employees in the exercise of the rights guaran- teed them under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the National Labor Relations Act, as amended: (a) Upon request, bargain collectively in good faith with the above-named Union as the exclusive bargaining repre- sentative of the employees in the above-described unit, and embody in a signed agreement any understanding reached. (b) Post at its Clifton and Orange, New Jersey locations copies of the attached notice marked "Appendix." 17 Copies of the notice, on forms provided by the Regional Director for Region 22, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply therewith. IT IS ALSO ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER RECOMMENDED that the elections in Case No. 22-RC-5124 be set aside and that the said proceeding be dismissed. 17 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 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."