The Drackett Co.

THE DRACKETT COMPANY 447 The Drackett Company and' Robert Miller and Furni- ture and Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-CIO, Party to the Contract. Case 13-CA-11832 November 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY March 20 and 21, 1973, a trial was conducted before me in Chicago, Illinois, upon a complaint by the General Counsel' alleging that the Respondent engaged in certain violations of Section 8(aX2) and (1) of the Act. Posthearing briefs filed by the General Counsel, Respondent, and Furniture Workers have been duly considered. Upon the entire record, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION On May 3, 1973, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed an answering brief, whereupon Respondent filed a motion to strike General' Counsel's brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record 1 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge, insofar as consistent with the following Decision, and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, the Drackett Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I We deny Respondent's motion to strike General Counsel's brief as lacking in merit.' Respondent has also requested oral argument before the Board Since it appears that the record and the briefs adequately present the positions of the parties the request is hereby denied. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It Is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect-Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE-CASE BENJAMIN B. LIPTON, Administrative Law Judge: On I The charge by Robert Miller was filed on October 6, 1972, and served by registered mail on October 11, 1972. The complaint thereon issued on November 30, 1972. Respondent maintains its principal place of business in Chicago, Illinois, where it is engaged in the manufacture of household cleaning products. During the year preceding issuance of the complaint, Respondent had a direct outflow in interstate commerce valued in excess of $50,000. It is admitted, and I find, that Respondent is engaged, in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Furniture and Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-CIO, is herein called the Furniture Workers. Miscellaneous Ware- housemen's Union, Local No. 781, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is herein called the Teamsters. Furniture Workers and Teamsters are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Essential Issues and Positions Three different theories, in the alternate or in combina- tion, are advanced by General Counsel in support of the 8(a)(2) violations alleged: 1. That Respondent formally recognized on September 29, 1972,2 and entered into, a collective-bargaining contract on October 5 with the Furniture Workers while a question concerning representation was pending before the Board's Regional Director (then considering objections to the election nominally lost by the Furniture Workers) in a proceeding to decertify this Union. 2. That when Respondent recognized and contracted with the Furniture Workers, on the basis of authorization cards obtained after the election date, the Furniture Workers in fact had valid cards from less than a majority of the employees in the bargaining unit. 3. That Respondent recognized and contracted with the Furniture Workers when it was aware of the conflicting representative interest of the Teamsters, thereby breaching its neutrality obligation under the Midwest Piping doc- trine.3 Respondent's positions may be summarized as follows: 2 All dates hereinafter are in 1972, unless otherwise specified. 3 Midwest Piping & Supply Co., Inc., 63 NLRB 1060. 207 NLRB No. 80 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) From the time of the actual election, on August 22, there was no real question concerning representation pending before the Board for the reasons that (a) the objections on their face were without merit, and (b) the Regional Director and Board so delayed the processing of the objections as to cause the conduct alleged in the complaint, since Respondent had to provide the employees with an insurance program following expiration of the preexisting contract with the Furniture Workers. (2) In extending recognition on September 29, Respondent acted pursuant to a card check conducted by an impartial third party, which reported that the Furniture Workers had new authorization cards from a majority of the unit employees; on October 4, for all practical purposes, the decertification case was concluded when the Regional Director issued his report overruling the objections (thereafter affirmed by the Board); and, before executing the contract on October 5, Respondent itself conducted a card check and ascertained that the Furniture Workers held a majority of new authorizations. (3) The Midwest Piping doctrine, relating to conflicting union claims, is not applicable since at no time did the Teamsters make an actual claim to Respondent that it represented any of the unit employees. B. The Pertinent Evidence 1. Organizational background; the Moore speeches At least since August 1964, Respondent and the Furniture Workers had successive contracts, containing union-security and voluntary checkoff clauses. The last such contract, before the events in issue, carried a terminal date of October 1, 1972, with provision for yearly automatic renewal. On May 18, Robert Miller filed a decertification petition (in Case 13-RD-857); and on June 16, the parties executed a Stipulation for Certification Upon Consent Election4 in a production and maintenance unit involving only the Furniture Workers on the ballot. On August 22, the election was conducted. Of approxi- mately 195 eligible employees, 82 cast votes against, and 78 cast votes for, the Furniture Workers, with 2 ballots challenged. On August 28, timely objections were filed by the Furniture Workers. On October 4, the Regional Director issued his report recommending to the Board that the objections be overruled. On October 24, no exceptions having been filed during the period provided therefor, the Board certified the election results. The Furniture Workers were decertified. After the election date, organizational activities on behalf of the Teamsters commenced following the initial contact, on August 24, between Teamsters Business Agent Kenneth A. Cook and employee Miller. On August 25, as previously arranged, Cook met with a representative group of employees brought by Miller to serve as an organizing committee. Cook then indicated that solicitation of 4 In this commonly used consent procedure, the final determinations on the election are made by the Board itself, rather than the Regional Director 5 The objections were received in the Regional Office at 1.45 p in 6 Sec. 9(c)(3) of the Act provides that "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding 12- month period, a valid election shall have been held." I Within Respondent's knowledge, handbills were distributed by the authorization cards should await the Board's disposition of the decertification proceeding. On Monday, August 28, Respondent's director of industrial relations, John A. Moore, convened three meetings at the plant, at 7 a.m., 9 a.m., and 3:30 p.m., with different groups of the employees, also attended by supervisory personnel. This was the final day for the filing of timely objections to the election .-9 Proceeding on the assumption that objections would not be filed, Moore expressed substantially the following positions for Respon- dent: From the date of the decertification, Respondent would institute the established program, existing at the Company's nonunion plants, of (health and welfare) insurance and benefits, which he explained, and "no one would miss any benefits." He repeatedly stated and, by his own testimony, was "very emphatic" that Respondent would not recognize any union except upon the results of a subsequent Board election, while pointing out that another election was barred under the Act for a period of 1 year.6 Miller, attending the 9 a.m. meeting, questioned whether Moore was not "jumping the gun," and was answered that unless objections were filed by 5 p.m. "tomorrow this is a non-union shop." Miller also asked if Respondent was aware that stewards for the Furniture Workers were then passing authorization cards in the plant and was told that Respondent had no such knowledge. Shortly after he left this meeting, Miller observed the Furniture Workers chief steward passing cards in the plant. He obtained one of the cards from an employee and took it to Mel McNeer, assistant plant manager, stating that this was exactly what he brought up at the meeting. McNeer indicated he would take the matter up with Plant Manager Glen Ferrick. After talking to McNeer, Miller telephoned Teamsters Agent Cook and informed him that the Furniture Workers was passing cards. Cook met Miller at the plant a half hour later and gave him a large amount of blank authorization cards. Commencing from midday on August 28, an intensive drive, led by Miller, was conducted at the plant to obtain signed cards for the Teamsters. Concurrently, as is abundantly evident, a card-signing campaign was under way on behalf of the tentatively decertified Furniture Workers? During the remainder of the day on August 28, at least 91 authorizations were signed for the Teamsters. Later the same day, Ferrick sought out Miller at his work station. Miller said he "wanted equal time" if the circulation of Furniture Workers' cards was allowed. According to Miller, Ferrick replied that "there would be definitely no cards passed out on the Company premises from nobody, Teamsters or otherwise."s , As testified by employee Clarence Sykes, in the after- noon meeting with Moore on August 28, Joe Zic openly stated that if the employees got together they could be organized and represented by the Teamsters. Moore responded that "there was no way he would recognize the Furniture Workers outside the plant, at least on August 29. None was distributed by the Teamsters. 8 Fernck testified that Miller had come to the door after the second Moore meeting and told McNeer "the Furniture Workers were passing out cards, why couldn't he pass out his." Ferrick denied that; when he later spoke to Miller, any mention was made of the Teamsters. THE DRACKETT COMPANY Teamsters" or any other union if the Furniture Workers was voted out .9 Teamsters union meetings with employees were scheduled in advance 1O and held on August 30 and September 11. At the August 30 meeting, Teamsters President Joseph Bernstein announced that he then had 128 signed cards,'1 but would wait until the Board officially decided the decertification case before taking any action. There were three identified stewards for the Furniture Workers who attended this meeting. At the September 11 meeting, Bernstein stated that, after the decertification was settled, he would request voluntary recognition of Respondent upon the showing of a card majority; if Respondent refused, the Teamsters would represent and service the employees on an individual basis without requesting the payment of dues. 2. Respondent's knowledge of the Teamsters interest In the period shortly preceding the decertification election on August 22, Miller approached two unions, only the Steelworkers and an independent truck drivers union; both such unions promptly indicated a positive rejection of any desire to organize Respondent's employees. While there is a testimony, upon which Respondent relies, concerning "rumors" of unions other than the Furniture Workers coming into the plant, I find in the evidence no basis upon which Respondent could reasonably attach any weight to such rumors. On and after August 28, there can be no serious question that only the Teamsters and the Furniture Workers were involved in concurrent campaigns. I discredit the testimony that there were even "rumors" after the election concerning any other unions.i2 From the inception of its organizational interest, the subject of the Teamsters arose in numerous conversations between various plant foremen and certain active employ- ees, particularly Miller. As early as August 25, Miller informed Nicholson, his immediate foreman, that he would not work overtime because he was going to attend a meeting with the Teamsters that day. At a later occasion, Nicholson asked him how they made out at the meeting. Beginning about August 28, Miller's conversations with various plant foremen usually consisted as follows: the foreman inquired how the Teamsters were doing, and Miller responded that they already had a majority and were awaiting the official results in the decertification proceeding. Uncontradicted and corroborated testimony of Miller relates to many such conversations with Foreman Sam Cutrano. On one such occasion, about August 29, in 9 Moore volunteered that "not one word" was said about the Teamsters "at any of those meetings," following his testimony concerning the first two of the three meetings held that day. Zic did not testify No employees were called by Respondent 10 Letters were sent by the Teamsters to employees who signed cards welcoming them "to the ranks," requesting their help "in signing your coemployees," and notifying them of the next union meeting. 11 From the stipulations in evidence, this figure could have been substantially accurate as of the payroll complement on August 30. 12 E.g., Foreman Charles Nicholson's testimony that "there were rumors about all kinds of unions coming in." 13 Foreman Robert Molina admitted awareness of the Teamsters activity from his departmental employees, Love and Lucas Foreman Pete Schardt gave changing and inconsistent testimony on the subject. 14 White was not effectively rebutted, and I find his testimony credible, 449 the presence of several employees, when Cutrano asked Miller how it was coming with the Teamsters, Miller replied (with some exaggeration) that he had 150 employ- ees signed, and waved a pack of cards in front of Cutrano. As Respondent's witness, Foreman James Greska, testi- fied, in late August and early September, the Teamsters' campaign was common knowledge throughout the plant among the foremen, as well as to the plant manager.13 Foreman 'Nicholson conceded that some of the foremen talked among themselves concerning "what would hap- pened if we did get another union in." General Counsel's witness, Lawrence White, formerly Respondent's ware- house foreman, testified that the activities of Miller and the Teamsters were discussed at a regular weekly meeting of foremen about I week after the election.14 In light of the pervasive record evidence of the rival union campaigns in the plant, I am unable to accept Plant Manager Edward Zelinski's testimony that he was unaware, during the month of September, that the Teamsters were trying to organize the employees, or that the Furniture Workers were then soliciting employees to sign authorization cards-although he admitted he overheard employee conversations referring to both these Unions.15 All of the foregoing, and the total record, amply warrants the inference that Respondent had concrete knowledge of the Teamsters substantial representative interest as of Septem- ber 29, when it extended recognition to the Furniture Workers.is Stipulations, during and following the hearing,17 are in relevant substance described within the discussion below: 3. Recognition of the Furniture Workers On Friday, September 29, about noon, Respondent requested the accounting firm of Price Waterhouse & Co. to perform a card check to determine whether the Furniture Workers "had a majority status." On that day, Roger Clausen, of Price Waterhouse, checked 166 cards submitted by the Furniture Workers against a typed list of 242 employees which Respondent "certified" was its complement covered by the contract with Furniture Workers at that date. Clausen found 137 cards which fit the specified criteria-that the cards be dated after August 22 and bear the signatures to match the names on the typed list. Clausen threw out approximately 30 cards because they were duplicates of those already counted, or the names did not appear on Respondent's list, or they were not dated after August 22. Clausen did not attempt to authenticate the cards by comparing the signatures with on the essential point relating to Respondent's actual awareness of the Teamsters campaign. 15 In a similar vein, Foreman Nicholson explained. "If I see no concrete evidence . . . of the Teamsters being there, I am not aware." Nicholson's testimony generally impressed me as equivocal and unreliable. 16 See, e.g., MacDonald Engineering Co., 202 NLRB 748. 17 As arranged by agreement at the hearing, stipulations were received by me on April 16, 1973, in Washington, D.C., and are hereby admitted as G.C Exh. 19 (1-100, excluding 19 (36) which was found illegible); G.C. Exh 20 (1-12); and G.C. Exh. 21, stating the details of agreement; The posthearing stipulations were essentially for purpose of authenticating the signatures on the bulk of the cards of both the Furniture Workers and the Teamsters, as the signatures of these employees from Respondent's files were not available at the hearing. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those in company records, nor test the accuracy of Respondent's typed list. In his written report to Respon- of the cards show: dent, Clausen stated that there were 14 cards on which the date was written with a different pen or pencil, and that these were counted among the 137 cards. The Teamsters was not invited and did not participate in the card check. On September 29, Clausen presented Respondent with a letter reflecting his findings and qualifying comments on the card check. Upon this result, Respondent immediately recognized the Furniture Workers and signed an agree- ment to extend the contract with certain changes, including increased wage rates, added holidays, and the substitution of "the Company's Employee Benefits Program" for the preexisting pension and insurance plans geared to trust arrangements with the Furniture Workers. On September 30, Respondent posted a notice to the employees describ- ing this agreement and listing the specific improvements in benefits. 4. Dual authorization cards as of September 29 Of the 137 employees who signed Furniture Workers cards counted by Clausen, 36 also signed cards for the Teamsters.18 In the stipulations, the language is included that, if called as witnesses, the employees who signed dual authorization cards would testify "no representative" of the Teamsters informed any of them that the cards signed for the Teamsters "would be used to knock out" the cards signed for the Furniture Workers, and that "in general the reason they signed cards for both unions was to assure themselves of representation by a union." 5. Card distribution by supervisors The following, in essence, was drafted in a stipulation: Respondent's contract with the Furniture Workers con- tained a union-security clause operative 30 days after hire. At or near the end of the 30-day period, it was Respondent's customary practice, through a personnel clerk, to place cards for the Furniture Workers (a membership/authorization card, a dues-checkoff card, and an insurance card) in the foreman's mail box with the name of the employee and the date indicating the end of the period. These cards were "sometimes distributed to such employees in this manner." Pursuant to this practice, during the last week of August but ceasing about the first week of September, various foremen distributed Furniture Workers membership/authorization cards and insurance cards to 10 employees. These 10 cards were included among the 137 cards affirmatively counted by Price Waterhouse in the card check on September 29. The names of the 10 employees, with their dates of hire, are listed in an appendix to the stipulation. Six of these employees also signed authorization cards for the Teamsters. Only the cards of these 6 (of the 10) are in evidence. An examination Hiring Date Signed Furn. Workers Card Johnson 7/27 8/28 Oliver 7/28 9/8 M. Brown 8/1 9/8 & 8/29 Hill 8/1 9/8 Smith 8/1 9/8 & 8/26 Sandifer 7/27 9/8 Thus it appears there was a concentrated effort by the foremen to obtain these signatures on September 8; more than 30 days after the employees' date of hire. In evidence by stipulation are 96 authenticated cards for the Teamsters in addition to the 36 dual authorization cards, above. Of all these cards, 6 are undated; 116 were signed between August 28 and August 31; and the entire 132 cards were signed between August 28 and September 29.19 As of September 29, the agreed unit complement consisted of 242 employees. 6. The October 5 contract On October 5, Respondent itself conducted a card check, and found that 156 authorization cards of the Furniture Workers matched the signatures in the payroll records for the 239 employees in the unit on that date (as stipulated). Of these cards, 134 had previously been counted by Price Waterhouse,20 and 21 of the 22 additional cards were obtained after September 30. Among the 156 cards, 45 had also signed cards for the Teamsters (including the 36 dual authorization cards existing on September 29). Again the Teamsters was not invited and did not participate. On the same date, October 5, Respondent negotiated and executed a 3-year contract with the Furniture Workers containing union-security and checkoff clauses, and providing further improvements in wages and benefits. Also on October 5, a notice was posted announcing the new contract and stating that the details would be explained to the employees at a Furniture Workers meeting to be held as soon as possible. C. Analysis and Conclusions The critical act of Respondent occurred on September 29, when it recognized the Furniture Workers. Its execu- tion of the full contract with this Union on October 5, after a further card check, was merely a formalization of the decision it made a few days earlier. Thus, all the issues presented turn on the propriety of Respondent's September 29 conduct; if unlawful, the effect of such recognition would, in any event, , taint the purported showing of a card majority on October 5.21 18 Excluding undated and misdated cards, 13 of the 36 employees signed cards for both unions on the same day or within I day of August 28, and 4 employees within 4 days of such date 19 It is highly probable, and I find, that the six undated cards and three misdated cards were-obtained within the same time period. 20 It is apparent that 3 of the 137 card signers as of September 29 had been severed from the payroll before October 5. 2i Respondent's motion to dismiss, denied at the hearing , is renewed in its brief. It contends that a fatal variance exists between the charge and the complaint Alleging violation of Sec. 8(a)(2), the charge asserts that "on or about October 5" Respondent recognized the Furniture Workers notwith- standing the fact that such labor organization "did not represent an uncoerced majority of its employees " (a) Respondent's formal contract action on October 5 directly stemmed from and reiterated its recognitional THE DRACKETT COMPANY 451 1. Pendency of the decertification petition When Respondent extended recognition to the incum- bent Furniture Workers on September 29, objections to the decertification election were being investigated by the Regional Director. 'It was therefore apparent that the question of representation-whether or not the Furniture Workers would legally continue as bargaining representa- tive-was pending before the Board.22 In these circum- stances, it has long been the rule, as explicitly clarified in Telautograph Corporation, 199 NLRB 892, that "an employer may not go so far as to bargain collectively with the incumbent (or- any other) union until the question concerning representation has been settled by the Board." 23 By arrogating to itself the ,decision on such a question 'while the very issue is being determined by the Board, upon the election - results, the employer violates Section 8(a)(2). Here, Respondent attacks the existence of a real question concerning representation as of September 29. It contends that the pending objections were "worthless on their face," and that the Regional Director and the Board so delayed the processing of the objections as to constitute the very cause of the conduct alleged as violations in the complaint, since Respondent had to provide the employees with an insurance program follow- ing expiration of the preexisting contract with the Furni- ture Workers. Having examined - the premises thus ad- vanced by Respondent, I reject these contentions as entirely frivolous,24 without need to review the merits of the objections or spell out the Board's standard election procedures. In Moore's speeches on August 28, it was emphatically told the employees that, following decertification of the Furniture Workers, no union would be recognized for at least 1 year, and Respondent's own insurance program existing at its nonunion plants would immediately be instituted. In the circumstances of the case, it is scarcely conceivable that Respondent was influenced in recognizing the Furniture Workers by the desire to provide a continuity of insurance coverage when the contract was about to expire on October 1. Even if true, it appears more an admission of fault, rather than a defense, in view of the pending question of representation.25 Respondent's turna- decision made on the previous Friday, September 29. (b) A union cannot be considered to represent a free, voluntary, and uncoerced majority for statutory purposes of collective bargaining when it is accorded recognition during the pendency of a, real, question concerning representation. The allegations in the charge and complaint present essentially the same cause of action and are inextricably related. N.L.R B v. Fant Milling Company, 360 U.S. 301 (1959); N.L.R B. v. National Licorice Company, 309 U.S. 350, 369 (1940) ("treating the whole sequence as one"). 22 The factor that objections to an election are being considered by the Board does not diminish the existence of an actual question concerning representation requiring strict neutrality of the employer. See, e.g., Vanella Buick Opel, Inc., 194 NLRB 123; Allied Food Distributors, Inc., et at, 169 NLRB 783 23 Quoted by the Board from Shea Chemical Corporation, 121 NLRB 1027 24 In this case, I believe some comment is warranted regarding Respondent's brief. To an unusual degree, liberties are taken in misstating certain aspects of the evidence which are plain, and in pursuing certain contentions, in my opinion, of a specious character. The brief consists of 80 pages of closely written material, which is unduly long. 25 Absent the alleged delays in processing the objections, would Respondent have recognized the Furniture Workers sooner, or adhered to bout from the firm position declared on August 28 not to recognize any union may well be inferred, as General Counsel argues, from its realization that the _ Teamsters presented a real threat and its preference for dealing with the incumbent Furniture Workers, despite the apparency of the employees' rejection of, this union in the recent balloting on the decertification question, On the theory alone that Respondent undertook to recognize the Furniture Workers while a real question concerning representation was pending in the decertifica- tion proceeding, I find the alleged violation of Section 8(a)(2).26 2. Minority status of the Furniture Workers As earlier described, when Respondent granted exclusive recognition to the Furniture Workers following the card check performed by Price Waterhouse on September 29, the Furniture Workers had 137 newly executed authoriza- tion cards from employees in the bargaining unit. It was affirmatively shown that 36 of these 137 employees also signed cards for the Teamsters within the same relatively short space of time. Such dual authorization cards do not reliably reflect the employees' choice of bargaining agent and cannot properly be counted to support the claim of majority status of the Furniture Workers.27 Among the 137 cards, 10 cards. were distributed to employees by various foremen, of which 6 were also dual authorization cards. There is no factual basis or merit in Respondent's argument that it was merely performing a "ministerial act of transmitting union cards." The 10 cards, are plainly invalid, as affected by the influence of the foremen in promoting the prestige of the Furniture Workers in the eyes of the employees.28 Thus, of 242 employees in the unit on September 29, the Furniture Workers had only 97 valid cards. It was therefore a minority union when recognized. The further card check which Respondent itself per- formed on October 5 29 was rendered nugatory,, at least as to the additional support obtained, by the Furniture Workers' unlawful recognition, combined with the in- creased benefits, granted a few days earlier.30 Even so, the evidence establishes that the Furniture Workers as of October 5 had only 107 valid cards of 239 employees then its decision not to recognize any union? 2s Midwest Piping and Supply Co., Inc.; 63 NLRB 1060, and Shea Chemical Corporation, 121 NLRB 1027, which provide the underlying doctrine for the violation. 27 E.g., Inter Island Resorts, Ltd, d/b/a Kona Surf Hotel, 201 NLRB 1, Intalco Aluminum Corporation, 169 NLRB 1034, enfd. in pertinent part 417 F.2d 36 (C.A. 9, 1969); Allied Supermarkets Inc.-Allied Discounts Foods Division, 169 NLRB 927, and cases cited in fn. 3 therein; Playskool, Inc, a Division of Milton Bradley Company, 195 NLRB 560, enforcement denied 477 F.2d 66 (C.A. 7, 1973). Distinguishing the basis forthe court's denial of enforcement in the latter case , it is clear in the present case that the General Counsel amply carried any burden necessary to prove the existence of the dual authorization cards as of September 29, as well as the invalidity of certain additional cards, demonstrating the lack of majority status of the recognized union, infra. 28 E.g., Sweatermasters Co., Inc., 176 NLRB 301, 308; Carlton Paper Corporation, et al, 173 NLRB 153; Pittsburgh Metal Lithographing Co., Inc., et a1., 158 NLRB 1126, 1133. 29 This time Respondent, apparently with more confidence, undertook to verify the card signatures 30 International Ladies' Garment Workers' Union, AFL-CIO v N.L.R.B, 366 U.S. 731, 736 (1961). 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the unit, after deleting the dual authorization cards and those solicited by supervisors. It is, of course, settled law that the recognition of a union which in fact represents only a minority of the employees violates Section 8(a)(2) of the Act, without regard to the employer's good or bad faith.31 Respondent's reliance on the September 29 card check conducted by Price Water- house, an impartial third party,32 cannot serve as a defense resting on alleged good faith, since it acted at its peril.33 Accordingly, this allegation in the complaint is sustained. 3. The existence of conflicting claims It was not necessary that the representative interest of the Teamsters be manifested by an express demand for recognition upon Respondent. The Teamsters substantial interest is shown by the fact that, as of September 29, it had 96 valid authorization cards, excluding the dual cards which were signed for both Unions. As found, Respondent was aware of the Teamsters intensive organizational campaign-to the extent that it was constructively on notice of the Teamsters substantial claim.34 Moreover, it was entirely reasonable for the Teamsters to withhold a demand for recognition until such time, if it occurred, that the Board rendered its decision that the election resulted in the decertification of the Furniture Workers. Indeed, on August 28, Respondent strongly discouraged the presenta- tion of such a demand by flatly declaring to the employees it would not recognize any union for a period of at least a year if the Furniture Workers were decertified. Further- more, the potentiality of the Furniture Workers being officially decertified should have instilled in Respondent a great degree of caution before granting such a union exclusive recognition, and thereby assuming to disregard the employees' recent expression of choice by secret ballot. Nonetheless, Respondent saw fit to recognize the Furniture Workers on the basis of the qualified Price Warehouse card check, without affording the Teamsters an opportuni- ty to participate. Moreover, Respondent's execution of a 3- year contract on October 5 would have had the effect of preventing the Teamsters from obtaining a new Board election, or maintaining its current support, for the term of this agreement. Thus, it is sufficiently established that, by recognizing and contracting with the incumbent Furniture Workers, in the face of a real question concerning representation raised by the competing interest claim of the Teamsters, Respondent unlawfully breached its obligation of strict neutrality under the broad doctrine of Midwest Piping, supra.35 While each of the General Counsel's theories separately supports an 8(a)(2) violation, these different aspects of Respondent's conduct were basically interrelated and essential to provide a full litigation of the case. In this entire record, it has been amply shown that Respondent rendered unlawful assistance and support to the Furniture Workers, and that the employees were effectively deprived of the free choice of bargaining representative which they are assured under the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that, in violation of Section 8(a)(2) and (1), Respondent recognized the Furniture Workers on September 29, notwithstanding that such union lacked majority status, that on September 29 it entered into an agreement extending the preexisting contract with the Furniture Workers, and that on October 5 it entered into a new collective-bargaining agreement for a term of 3 years with the Furniture Workers-all during the pendency of a real question concerning representation of the employees covered thereby. In order to dissipate the effects of Respondent's unfair labor practices, I shall recommend that Respondent withdraw and withhold all recognition from the Furniture Workers and to cease giving effect to either of the aforementioned agreements, or to any renewal, modification, or extension thereof, until such time as Respondent shall have been certified by the Board as the exclusive representative of the employees in question. However, nothing herein shall require Respondent to vary or abandon any wage, hour, seniority, or other substantive features of its relations with its employees which have been established in the performance of its agreements with the Furniture Workers or to prejudice the assertion by employees of any rights they may have thereunder. As the aforementioned agreements, based on Respondent's un- lawful recognition of the Furniture Workers are invalid, the union-security provisions adopted and contained in those agreements are likewise invalid after the expiration, on October 1, of the previous contract. I shall therefore recommend that Respondent reimburse all present and former employees for all initiation fees, dues, or other moneys paid or checked off since October 1, pursuant to the invalid union-security agreements,36 or any renewal, modification, or extension thereof, or pursuant to any checkoff authorizations executed before the date of compliance with this recommended Order.37 31 Id at 738, Intalco Aluminum Corporation v. N.L.R.B., 417 F.2d 36, 39 (C.A. 9, 1969); Allied Supermarkets, Inc, supra 32 As shown, the criteria was specified by Respondent, which omitted a proper authentication of the card signatures, such as applied by the Board in determining issues of a card majority. 33 E g., Intalco Aluminum Corporation, 169 NLRB 1034. 34 Indeed, as sufficient to create a real question concerning representa- tion, a showing of substantiality is not a requisite element to the union's claim in the context of rival organizing campaigns. American Bread Company, 170 NLRB 85, 88 Much less can an employer justifiably ignore the existence of such a claim of interest simply because the union is not prepared or is not in a majority position formally to request recognition. 35 See, e.g., Oil Transport Co v. N.L R B, 440 F 2d 664, 665 (C.A. 5, 1971); N L R B. v. Tower Iron Works, Inc, 366 F 2d 189, 191 (C.A. I, 1966), Playskool Inc, etc, 195 NLRB 560, Teramana Brothers Coal Mining Company, 173 NLRB 581, 582; Local 259, Untied Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO (Raymond Buick, Inc), 173 NLRB 1292, 1308 36 Interest at 6 percent per annum shall be added, in the manner set forth in Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142. 37 General Counsel requests that an election be ordered, remedial in nature, to be conducted under Sec. 10(c), and outside the scope of Sec. 9(c) of the Act, citing as authority Bowman Transportation, Inc., 120 NLRB 1147. I consider the inclusion of such a remedy in this case to be unnecessary The Bowman case involved an entirely distinguishable situation. With the same THE DRACKETT COMPANY 453 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, 2. The Furniture Workers and the Teamsters are each labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing the Furniture Workers, and by executing collective-bargaining agreements with it contain- ing union-security provisions, (a) when such union did not represent a majority of the employees in the appropriate unit, and (b) when a real question concerning the representation of its employees existed, Respondent has rendered and is rendering unlawful assistance and support to the Furniture Workers within the meaning of Section 8(a)(2) of the Act. 4. By the foregoing, Respondent has interfered with, coerced, and restrained employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER38 Upon the basis of the above findings of fact and conclusions of law, and upon the entire record of the case, it is recommended that Respondent, The Drackett Compa- ny, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting or contributing support to Furniture and Bedding Workers Union, Local 18-B, Furniture Workers of America, AFL-CIO, or any other labor organization, by recognizing such labor organization as the exclusive representative of any of its employees for the purpose of collective bargaining at a time when there exists a real question concerning representation, or when such labor organization does not represent the majority of employees in an appropriate unit, or in any other manner. (b) Giving effect to, performing, or in any manner enforcing the collective-bargaining agreements executed with the aforesaid labor organization on September 29 and October 5, 1972, or to any modification, extension, renewal, or supplement thereto, or any superseding agreements, or to checkoff authorization cards executed pursuant to such agreements, unless and until said labor organization has been certified by the Board as the exclusive bargaining representative of such employees; provided, however, nothing herein shall require Respon- dent to vary or abandon any wage, hour, seniority, or other substantive features of its relations with its employees which have been established in the performance of such agreements or to prejudice the assertion by employees of any rights they may have thereunder. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Furni- ture and Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-CIO, as the repre- sentative of its employees for the purpose of collective bargaining unless and until said labor organization has been duly certified by the Board as the exclusive representative of such employees. (b) Reimburse all present and former employees for the dues and fees unlawfully exacted pursuant to invalid union-security agreements with the aforesaid labor organi- zation, as set forth in "The Remedy" section of the Administrative Law Judge's Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of reimbursement due under the terms of this Order. (d) Post at its plant in Chicago, Illinois, copies of the notice attached hereto as "Appendix." 39 Copies of said notice on forms provided by the Regional Director for Region 13, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, including places where notices to employees are customarily posted, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. efficacy and effect, either of the contending Unions, or any other union, or the employer, under normal procedures may file a petition for an election Such an election may be conducted following compliance with this recommended Order, or at such time as the Regional Director may deem appropriate 311 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 34 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or contribute support to Furniture and Bedding Workers Union, Local 18-B, United Furniture Workers of America , AFL-CIO, or any other labor organization, by recognizing, or 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contracting with, such labor organization as the exclusive representative of our employees for the purpose of collective bargaining, at a time when there exists a real question concerning representation, or when such labor organization does not represent a majority of our employees in an appropriate bargaining unit. WE WILL NOT give effect to our September 29 and October 5, 1972, agreements with Furniture and Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-CIO, or to any renewal, modification, or extension thereof, unless and until said labor organization has been duly certified by the Board as the exclusive representative of our employees; but nothing herein shall be construed to require that we vary or abandon any existing term or condition of employment. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. WE WILL withdraw and withhold all recognition from Furniture and Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-CIO, as the collective-bargaining representative of our employees, unless and until said labor organization has been certified as such by the Board. WE WILL reimburse all present and former employ- ees, with interest, for any initiation fees, dues, or other moneys paid or checked off on and after October 1, 1972, pursuant to the September 29 and October 5, 1972, agreements with Furniture and Bedding Workers Union, Local 18-B, United Furniture Workers of America, AFL-CIO, of to any renewal, modification, or extension thereof. Dated By THE DRACKETT COMPANY (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881 , 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.