Deblin Manufacturing Corp.

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Deblin Manufacturing Corporation and Local 28A, Metal Production and Novelty Workers' Union, International Brotherhood of Painters and Allied Trades, AFL-CIO. Case 29-CA-3035 January 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On July 25, 1973, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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. 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 complaint be, and it hereby is, dismissed in its entirety. i The General Counsel 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 JOEL A. HARMATZ, Administrative Law Judge: This case was tried before me in Brooklyn, New York, on May 21, 22, 30, and June 5, 1973. The charge was filed on September 14, 1972, and on November 30, 1972, the Regional Director for Region 29, issued a complaint thereon, alleging that Respondent had violated Section 8(a)(5) of the Act since April 5, 1972, by negotiating in bad faith and with no intention to enter into a final and binding collective-bargaining agreement, and thereafter by with- drawing recognition and refusing to bargain with the Union. The Respondent filed an answer denying the commission of the alleged unfair labor practice, and requesting dismissal of the complaint in its entirety. Prior to the opening of this proceeding before me, the Respondent, on February 20, 1973, filed with the National Labor Relations Board in Washington, D.C., a motion for summary judgment dismissing the complaint in its entirety. In support of said motion, Respondent contended that the instant complaint rested upon allegations which were previously determined or should have been discovered in an earlier unfair labor practice proceeding, Case 29-CA-2717, involving the same parties, and that there- fore, the Board, under the precedent in Jefferson Chemical Company, Inc., 200 NLRB No. 134, should issue a decision and order dismissing the complaint in its entirety or grant such further relief as may be appropriate. On November 30, 1972, the Board issued an order transferring proceeding to the Board and notice to show cause as to why the Respondent's motion should not be granted in whole or in part on the basis of Jefferson Chemical, Inc., supra. The General Counsel filed a response urging that the cited decision is inapposite herein. On April 17, 1973, the Board issued an order denying motion for summary judgment and remanding proceeding to Regional Director, ruling that the issue raised by the motion "may better be resolved in connection with a hearing conducted by an Administrative Law Judge. . . At the outset of the hearing, and on several occasions in the course thereof, the Respondent renewed its motion to dismiss, which was initially denied by me on the grounds, inter aha, that summary dismissal was foreclosed by the Board's order of April 17, 1973. At the close of the hearing and in its brief, Respondent again urged dismissal on the basis of Jefferson Chemical Company, inc., supra. In the view I take of the case upon consideration of the entire record in the light of the pleadings, it is unnecessary to reach the Jefferson Chemical issue. However, in my analysis of the merits of this case, I will subsequently refer to the cited case and express my views as to its relevance to the instant proceeding. Upon the entire record in this proceeding, including the posthearing briefs filed by the General Counsel and Respondent, and based upon my observation of the witnesses and their demeanor while testifying, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation with a principal office and place of business located in County of Kings, New York City, New York, where it is engaged in the manufacture , sale, and distribution of dies for aluminum extrusions and related products . During the year preceding issuance of the instant complaint , Respondent, in the course and conduct of said operations , sold products valued in excess of $100,000, of which (1) products valued in excess of $30,000 were shipped from said place of business to States other than that in which Respondent is located, and (2) an additional $35,000 were sold to other enterprises each of which annually produce goods valued in excess of $50,000 which are shipped directly out of the State in which said enterprises are located. The complaint alleges, the answer admits , and I find that 208 NLRB No. 24 DEBLIN MANUFACTURING CORPORATION Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.' II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent at the hearing conceded, and I find that Local 28A, Metal Production and Novelty Workers' Union, International Brotherhood of Painters and Allied Trades, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ISSUES Did Respondent lawfully withdraw recognition and refuse to bargain on grounds that a decertification petition had been filed and the Union no longer represented a majority of the employees in the appropriate unit; or did such action constitute an unfair labor practice either because: (a) Preceded by collective-bargaining negotiations, in which Respondent acted in bad faith and with no intention of entering a final and binding collective-bargaining agreement, or because (b) Such action occurred during the pendency of an earlier unremedied unfair labor practice based upon alleged promises of benefits and unlawful direct dealing with employees. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent and the Union have had a bargaining relationship with respect to the former's production and maintenance employees for some 15 years.2 Prior to the events here in issue, successive collective-bargaining agreements were negotiated and executed apparently in a spirit of amity and clearly without serious incident. However, the most recent of said contracts expired on October 31, 1971. Prior thereto in September 1971, Respondent was notified by the Union of the latter's intention to reopen the agreement to negotiate changes and additions. By letter dated September 24, 1971, the Union outlined its demands. Pursuant thereto, formal negotiating meetings were held in 1971 on October 8 and 20, November 22, December 2 and 14; and in 1972, on January 5, 20, 26, 27, and 30, February 24, March 1 and 28, and April 4. In the interim, a strike commenced on January 20, 1972, and continued until April 12, 1972, when all those actively participating in the economic action against Respondent voluntarily and under noncoercive conditions applied for and were granted reinstatement without change in their prestrike level of wages and working conditions. On April 18, 1972, an RD petition supported by all of the reinstated strikers was filed. At that time, the production and maintenance unit consisted of five employees. Of the five, three were the participants in the strike against Respondent, and it is apparent from the record that the remaining two were nonsupportors of the strike. Subse- i Siemons Mailing Service, 122 NLRB 81, 85 2 The unit is small, consisting of only 5-6 employees during times material to this proceeding 393 quently, Respondent withdrew recognition and refused to engage in further negotiations with the Union on the stated ground that the Union no longer represented a majority. Stripped of complexities, the basic issue in this case is whether Respondent was precluded by virtue of its prior conduct, from asserting the Union's loss of majority or the decertification petition as a defense to its ultimate curtailment of bargaining. B. The Negotiations and Related Matters On September 24, 1971, the Union, pursuant to its earlier requests for negotiation, by letter, submitted a list of changes and amendments to the subsisting contract to Emanuel Helfand, Respondent's president. A variety of benefit increases were sought, but of prime significance here is the Union's demand for increased welfare and pension contributions. Under the prior contract, Respon- dent was obligated to contribute 4 percent of its weekly payroll to a jointly administered welfare fund,3 and an additional 4 percent of the weekly payroll to a jointly administered pension fund. Parenthetically, I note that though the unit in question here was limited in scope to the employees of Respondent, the pension and welfare funds were multiemployer programs. Yet, according to the Union's practices, the terms of these trust funds were not negotiated with the individual employer-participants, but were embodied in a declaration of trust which each employer normally agreed to incorporate by reference into their individual collective-bargaining agreements . There- fore, in this regard, it was the Union's practice to limit negotiations with the individual employers to the amount of contributions. With respect to such contributions, the Union, in the instant negotiations, sought an increase in the percentage of payroll contributions on welfare to 11 percent, or an increase of 7 percent, and on retirement, it demanded a raise to 5 percent or an increase of 1 percent. This was coupled with a demand for a 50-cent hourly increase in wages in each of the 3 years of the proposed contract, triple time for holidays, liberalized eligibility requirements, increased vacation benefits, and additional sick leave and holidays. Pursuant to a telephone conversation between the Union's business agent, Saul Lasher, and Helfand, a meeting was scheduled for October 8, 1971. That meeting was attended by Lasher, Bill Honey, the union steward, for the Union, and Helfand for the Company. Helfand informed Lasher that the Company had suffered losses for 6 months and that with the proposal submitted by the Union, he would have to close down. At the time, the wage price freeze was in effect, and Helfand, after a discussion concerning the freeze, made no proposal or counteroffer on behalf of the Company, but indicated that he could not do anything until the anticipated new wage guidelines were announced. Helfand did indicate that even if the Union's demands were within the guidelines, he could not accept 3 That fund existed for the purposes of insuring employees in such areas as health, accident, hospitalization , medical costs , death, etc 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them and that unless the Union was reasonable with its demands, he would be forced to close down his opera- tions.4 At some point in this meeting, the Union requested to see the Company's books. Helfand responded by offering the Union the opportunity to examine his books, an option the Union did not at any time pursue. Helfand also provided Lasher accounting worksheets which con- tained Respondent's operating figures.5 The parties again met on October 20, 1971, with the same persons in attendance. At that time the guidelines still were unavailable, and there was discussion of the wage freeze. The impending expiration of the contract was also considered. Helfand proposed that the terms and condi- tions set forth in the old contract be extended beyond the October 31 expiration date and the Union agreed.6 There was some discussion of the welfare-pension issue, but the parties agreed to wait for issuance of the new guidelines and proceed from there. On November 15, 1971, the new 5.5 percent guidelines were put into effect. The parties again met shortly thereafter on November 22, with no change in those attending. At this session the Union reduced its economic demands, proposing a 1-year contract, with a 25-cent hourly increase, rather than the 50 cents previously sought, while continuing to insist on an additional 7 percent contribution to the welfare plan and 1 percent to pension. Helfand rejected this as too costly and the type of proposal that still would require him to go out of business. When reference was made to the fact that the Union's new proposal exceeded the guidelines, Helfand indicated that he would discuss a package that met the guidelines, but, beyond that, he would not join the Union in seeking special relief from the pay board.? Lasher indicated that because of existing employment conditions, an ii.crease within the confines of the guidelines would be inadequate. Another meeting was held on December 2 with the same individuals in attendance. Helfand at that time offered a 3- year contract with increases of 15 cents per hour annually, provided that the level of pension and welfare contrib- utions remained. unchanged.8 The meeting apparently ended when Lasher agreed to present the Company's offer to the membership. Subsequently, such presentation occurred and the employees rejected the offer. On December 14, the parties again met, with Lasher advising Helfand that his proposal had been rejected. Helfand indicated that with respect to welfare and pension contributions, he would be willing to consider the Union's position; i.e., the 7 percent and 1 percent increases, if he could obtain relief for new employees. Helfand's position in this regard was based upon the high turnover experi- enced among new hires pnor to their acquiring 6 months service as well as the fact that certain welfare, and all pension benefits were not available to employees pnor to completion of 6 months employment. Lasher rejected this, asserting that the Union could not countenance any such discrimination against new hires .9 The parties agreed to defer the next meeting until after the holidays. In the meantime, apparently sometime after the Decem- ber 14 session and in that same month, Helfand called a meeting of the employees. Helfand asked the employees whether they particularly wanted the welfare and pension programs as proposed by the Union. The employees responded affirmatively. Helfand indicated that he could not afford the Union's plan, and offered Blue Cross-Blue Shield coverage in its stead.10 The employees were told that if they accepted this plan, he could give them a higher increase in wages and they would not need a union.ii The 4 The above is based upon a composite of the testimony of Lasher and Helfand Honey, though called as a witness by the General Counsel and Respondent was not examined as to the negotiations In most instances, I shall not credit Lasher where his testimony is contradicted and, unless the subject of specific findings herein, his testimony is rejected. Lasher did not impress me as a reliable witness His testimony is replete with contradictions and he persisted in passing off his own understanding or assessment of events and statements, as if they were matters of fact Though on direct examination, his testimony conveyed a remarkable capacity for recollection, this was quickly shown to be illusury when Lasher was confronted with statements in his pretrial affidavits on cross-examination by Respondent's attorney I am particularly suspicious of that portion of Lasher's testimony which imputes conduct to Respondent of a highly prejudicial nature for I am convinced that, whether or not innocently based, he tended to color the facts in order to support the charges herein 5 Although Lasher indicated that he did not understand the significance of the figures on these worksheets, he sought no assistance and, while conceding that accountants were available to the Union , he made no effort to procure their aid in a test of the validity in the Company's claims of economic distress and inability to pay 6 1 discredit Lasher's testimony that Helfand agreed at this meeting, or at any other time, that any new agreement reached would be retroactive to October 31, 1971 There is no reference to an agreement on retroactivity in Lasher's pretrial affidavit In addition, Lasher's testimony as to whether or not Helfand ever used the term retroactive is replete with contradiction, unreliable, and unworthy of credence. However, I do believe, as Lasher at one point testified, that Lasher felt that retroactivity was implicitly a derivative of the agreement to extend the contract Although he at that time indicated that automatic retroactivity had been the practice in past negotiations, from the record, I am not satisfied that the parties had ever been confronted with a situation where they were unable to reach agreement prior to expiration of the existing contract I credit Helfand's denial that he at any time agreed to retroactivity r Apparently it was the view of the Union that because of the low wage base ($2 61 average hourly rate without fringes) of Respondent's employees, an exception from the guidelines could be obtained from the pay board. 8 This offer was conditioned upon approval of the employees, with the understanding that it could be withdrawn if rejected Although Lasher initially testified that the annual increases proposed by Helfand were conditioned upon abandonment of the welfare and pension programs, this fails to comport with his pretrial affidavit and I find the offer to have been made as related above. I would note, however, that since the equitable financial support among all employer-participants in the pension and welfare plans is an essential element of the financial workability of such multiemployer programs, it is not unlikely that Lasher regarded the proposed freezing of Deblin's contributions as tantamount to abandonment, and that Lasher's initial testimony on this matter was a further example of his tendency to testify as to his interpretation of facts, in a manner suggesting that these impressions were the facts themselves. 9 Lasher testified that Helfand also stated at this meeting that since the employees would not accept his offer ".. he might as well go out of business and the men can go out on strike" This statement is at variance with and far more prejudicial to Respondent than the version Lasher set forth in his pretrial affidavit In addition Lasher's affidavit recites that he did not believe that Helfand discussed going out of business at this meeting. In view of the confusion generated by these variances , I am unwilling to find that Helfand made any reference to going out of business other than to state that if the Union was not reasonable in its demands, he would be forced to close down. 10 One of the employees, Brathwaite, asked the cost of the union plan, and when Helfand indicated that it was about 40 cents per hour, Brathwaite stated that if this were offered him, he would accept Helfand's proposal ti Helfand denied that he told the employees or suggested that they did not need a union According to his version, he merely reminded them that DEBLIN MANUFACTURING CORPORATION 395 men rejected Helfand's proposal, stating their preference for the Union's plan. Subsequently literature relative to the Blue Cross-Blue Shield plan was put in the shop for the men to read.12 At the next meeting, on January 5, 1972, Lasher, having learned of Helfand's meeting with employees, questioned him as to why this was done, charging that this was not bargaining in good faith and that the Company was doing things behind the Union's back. Helfand tried to slough it off, stating he just wanted to feel out how the men felt about Blue Cross-Blue Shield, and apparently there was no further sigmficant discussion of the matter. Helfand again made the 5.5 annual wage increase proposal for a 3-year period, which the Union rejected. The Company's pro- posed 6-month limitation on contributions to the welfare and pension plans was again discussed. The same individuals again met on January 20, 1972. Nothing occurred at this meeting which could be regarded as injecting new life into the bargaining stance of the parties. Helfand indicated that he would adhere to his previous offer, and Lasher observed that that offer had previously been rejected. According to Lasher he told Helfand that this "was not bargaining to the point of giving a counter-offer to any offer we have had." Nonetheless, Lasher advised that he would call a meeting in the shop to find out whether the men had changed their minds. Following the meeting, that same day Lasher met with the employees. The employees rejected the 5.5 percent, 3- year package offered by Helfand and elected to strike. The strike commenced at 12:00 noon on January 20, 1972. Apparently as a result of the strike and lack of significant progress in negotiations, the state mediation service was contacted by Lasher and became available to the parties. On January 26, a meeting was conducted in the mediation offices in the presence of Michael Wolpart, a state mediator. Employee Charlie Walker, a committeeman, joined Honey and Lasher, and Helfand continued as the sole company representative. The meeting opened with a .briefing of Wolpart as to what had transpired in prior negotiations. There was discussion of certain language problems and agreements were reached on some noneco- nomic matters. The Union made a new proposal of a 3- year contract calling for successive raises of 15 cents the first year, and 20 cents on the second and third years, with the only adjustment in the Union's pension and welfare they had a Union and that it was up to them if they wanted a union I credit the testimony of incumbent employees Honey and Brathwaite and find, over Helfand's denial, that the statement was made as set forth in the above text I do not believe that the present employees would have misrepresented Helfand's remarks in this regard, and note that their version fits the context of the meeting in a manner more consistent with the probabilities than that of Helfand Furthermore , in all other respects , the testimony of these employees was consistent with the balance of the record , and they impressed me, from their demeanor , as intent on baring the truth. i2 As will be indicated in greater detail infra, this incident was the subject of an unfair labor practice charge filed by the Union on February 2, 1972, in Case 29-CA-2717 A complaint based on that conduct was issued , but then was made the subject of a formal settlement stipulation The Regional Director, in the present proceeding has not set aside the settlement agreement, and there is no contention or allegation before me that this meeting constitutes an unfair labor practice, presently subject to redress i3 1 do not regard this offer of I year's relief from the I-percent increase in pension contributions as a significant departure from the Union's position on welfare and pension contributions demands being a deferral of the I-percent pension increase to the second year.13 Helfand indicated that he would consider the offer. At some point during this session, when the mediator inquired as to the terms of the expired contract, the Union made reference to retroactivity. Helfand refused to agree that any new contract reached would be retroactive to October 31, 1971, the termination date of the recently expired contract. The meeting ended with an agreement to again meet the next day at the plant. At the meeting the next day, Helfand rejected the Union's proposal of the preceding day. He again stated that he would consider agreement based upon the 5.5 percent guidelines, but that he could not accept the Union's demands and remain in business. Apparently, nothing else of consequence occurred at this meeting,14 which broke up on a note of discord. On or about January 30, 1972, pursuant to a telephone request by Lasher, a negotiation session was held at union headquarters. Joining the union team of negotiators was the Union's president, a Mr. Weisler. Prior to the meeting, the Union received a letter over Helfand's signature, dated January 28, 1972, stating: Please be advised it is our present intention to terminate operations as of March 10, 1972. Lasher, referring to this letter, proceeded to attack Helfand , asking "what kind of bargaining was this , to send us a letter, when we are sitting down to try to resolve the issues, and get the men back to work ." 15 Helfand said that the letter was self-explanatory. At this point the discussion turned to bunging Weisler up to date on the bargaining to that point . Weisler told Helfand that Deblin would accept the 11-percent and 5-percent union proposals on welfare and pension . At that point, Helfand walked out of the meeting.16 Shortly after this meeting and on February 2, 1972, the Union filed unfair labor practice charges in Case 29-CA-2717, alleging violations of Section 8(a)(1), (3), and (5) of the Act, specifically stating: Since on or about October 20, 1971, the above- named Employer, by its officers, agents and representa- tives, has failed and refused to bargain in good faith concerning the terms and provisions of a collective bargaining contract, with the undersigned labor organi- li t discredit Lasher's testimony that Helfand at this meeting indicated that he was "withdrawing" any retroactivity. I have previously found that Helfand at no time agreed to retroactivity For the reasons expressed in that connection , and noting that Lasher's pretrial statement imputes to Helfand language in the nature of a refusal to agree, rather than the withdrawal of an existing agreement, I do not credit Lasher's testimony in this regard 15 According to Helfand it was Weisler who questioned him concerning this letter Because I deem it insignificant as to who raised the matter, I accept Lasher's testimony that he made the above statement. '" Except as indicated above, this is based upon the credited testimony of Helfand . I found him to be basically a more reliable witness than Lasher I specifically discredit Lasher's testimony that Helfand stated that he would go out of business if the Union refused to settle on Helfand's terms. Here again, Lasher's testimony departs from his pretrial affidavit which indicates that Weisler had characterized the close down statement and had accused Helfand of making such a threat. Though Lasher, from the witness stand, imputes the threat to Helfand . the affidavit fails to aver that Helfand expressed any threat based upon such a contingency For this, and other reasons heretofore expressed, I discredit Lasher in this regard. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation, which is the recognized collective bargaining representative of its factory employees. - On or about January 20, 1972, the said Employer discharged Winston Brathwaite because of his activi- ties on behalf of the undersigned union. Thereafter, the Company retained an attorney, a Mr. Gerald Wendel, who after several telephone conversations with Lasher arranged a meeting for February 24, 1972. That meeting was attended by Honey, Walker, and Lasher, for the Union, and Helfand, for the Company. At the outset, Helfand advised that the lawyer would not be present, but that he was there to listen to any proposals that the Union would offer. The meeting was broken up by Lasher, who informed Helfand that "Since the attorney is not there, there is no use of meeting and if the company is there to listen, we have nothing to discuss." However, a meeting was set up for March 1. The same group attended the March 1 meeting. Wendel, was not available to meet on that day, and again did not show up, though the purpose of the meeting, from the Union's point of view, was to have him present. The Union changed its last proposal, now offering a 2-year contract with a 35-cent hourly wage increase, with an II percent contribution to the welfare fund the first year, and a 25- cent increase in hourly wages the second year, with an II percent contribution to the welfare fund and a 5 percent contribution to the pension fund (apparently the 1 percent increase in pension contribution was deferred to the second year.). This represented an increase over the package previously put on the bargaining table by the Union. When asked by Helfand as to why the Union had upped the ante, Lasher referred to the continuing inflation and stated that the men needed that amount. The Company rejected this, and reiterated its 5.5 percent proposal. Lasher indicated that the men would talk this over and let Helfand know 17 Subsequently a meeting was set for March 27, 1972. A Mr. Altman, general representative of the International Union, and described as a "troubleshooter," was present, as were Helfand, Wendel, Walker, Honey, and Lasher. The meeting opened with a briefing of Altman as to what had transpired in negotiations to that date. Helfand informed Altman that he wanted an open shop and was joined by Wendel in explaining to Altman why Deblin could not afford the increase in welfare and pension contributions. Helfand credibly testified that Altman indicated that he would not go along with an open shop nor would he tolerate any deviation from the pension and welfare demands. Lasher pointed to the fact that it was about time for a settlement. Discussion shifted to a possible basis for accommodating the divergent positions of the parties on welfare and pension. In this connection, it was discovered that, for reasons not material here, certain strikers, in the past, had received payments, called bonuses, which, with the assent of the Union, had not been subject to welfare and pension contributions. Lasher credibly testified that Altman suggested if the percentages were applied to these bonuses, perhaps the Union could reduce the percentage increase it had been seeking 18 Helfand credibly testified that as he and Altman were leaving at the close of the meeting, Altman suggested to him that the Company propose a lump sum settlement and allow the Union to apply it as they wished.19 Helfand told Altman he would think it over.20 The same individuals, except for Walker, again met with Altman in attendance on April 4. At this time, Helfand, in response to Altman's request, inquired as to what the Union would do with a 25-cent lump sum offer. The union representatives began to figure how this sum could be allocated to wages, welfare, and pension. They took the welfare and pension contributions off of the top, and Helfand stated that too little was left to employees for wages and he would not enter a contract on that basis. There was also some discussion of the matter of bonuses, but no proposal was made as a result of this.21 17 1 discredit Usher's testimony that Helfand stated that he would rather have an open shop and would not sign a contract with the Union Here again Usher's pretrial affidavit fails to substantiate his testimony But in addition, I deem it highly unlikely that Helfand would have made such extreme statements considering the balance of his conduct , and the fact that they allegedly were made during the pendency of Case 29-CA-2717, and while Helfand was under the advice of an attorney 18 Helfand does not specifically contradict Lasher in this regard Although he denies that the Union reduced its welfare demand from I I to 9 percent at this meeting, and hence implicitly denies that the bonus discussion produced a liberalized demand by the Union, this falls short of a denial that the bonus issue was raised. Wendel merely testified that he did not recall a reference to the bonuses during this meeting I credit Lasher because, considering the past practice whereby the Union agreed to except the bonuses from fringe contributions , and the irregularities suggested thereby, I think it improbable that Lasher would testify as to this matter if it had not actually been raised 19 Helfand appears to have been contradicted by Wendel on the reference to a lump sum proposal However, this is not necessarily the case For, the record does not indicate that either Wendel or Lasher, whose testimony makes no reference to the lump sum proposal, were within earshot of this exchange between Helfand and Altman I would also note that such a request is entirely consistent with Weisler 's position at the late January meeting where, according to the credited testimony of Honey, Weisler stated that he did not care what the parties settled for as long as the Union's pension and welfare demands were met I note that the only witnesses examined as to this meeting were Helfand, Lasher, and Wendel Altman did not appear 20 1 do not credit Usher's testimony that Helfand stated at this meeting that he would rather go out of business than sign a contract , that the Company did not want a contract, and that the Company did not want to discuss anything Here again , despite the gravity of these alleged statements, Usher's pretrial affidavit fails to mention them . Furthermore , for reasons heretofore stated, and because I deem it highly improbable that Helfand would have made such statements in the presence of his attorney , during the pendency of the surface bargaining charge in Case 29-CA-2717, I do not believe Lasher I also note that Usher's testimony as to these statements seems completely out of line with Usher's further testimony to the effect that he was encouraged by the movement and direction that the negotiations appeared to be assuming at this meeting I credit Helfand's denial of the statements Lasher imputes to him 21 1 discredit Usher's testimony that at this meeting the Union offered to reduce its welfare demand from II percent to 9 percent if applied to the bonuses I am unwilling to accept Usher's uncorroborated testimony on this matter The Union's position throughout negotiations , that is, prior to the April 18, 1972, filing of the decertification petition was that it would not discriminate with respect to its demands concerning pension and welfare It is also a fact that the financial basis of these multiemployer benefit plans, requires an equitable allocation of costs among participating employers With this in mind, I note that the net contribution at 9 percent applied to the bonuses, would give the Union a return equalling the I I percent sought, without application to bonuses However, this parity would be achieved only as to three unit employees who were the only recipients (Honey, Walker, and Brathwaite) of such bonuses Thus, if this reduction in the DEBLIN MANUFACTURING CORPORATION 397 At the conclusion of this meeting, nothing was open on the table which could have moved the parties from their entrenched positions. I credit Wendel's testimony that the next contact made by the Union was by telephone some 8-10 days after the above meeting. Prior thereto, and on April 12, 1972, all employees, who could then be considered as participants in the economic action against Deblin, abandoned the strike, applied for reinstatement, and were given their jobs back on the same terms as in effect before the walkout. This termination of the strike, I find, was the cause of Lasher's above telephone conversa- tion with Wendel in which Lasher expressed surprise that the men had returned to work. Wendel, having no knowledge of this, advised Lasher that he would call Helfand and get back to Lasher.22 On April 13, 1972, the Regional Director took action with respect to the pending charge in Case 29-CA-2717. A complaint was issued based upon Helfand's alleged "promises of benefits" and "direct dealing" with employ- ees concerning Blue Cross-Blue Shield in December 1971. However, the assertions based upon alleged surface bargaining and the discharge of Brathwaite were dismissed, by letter, over the signature of the Regional Director, stating in material part: The investigation failed to establish that Deblin Manufacturing Corporation refused to bargain in good faith with your organization concerning the terms and provisions of a collective bargaining agreement, nor did the investigation establish that the Company dis- charged Winston Brathwaite because of his activities on behalf of your organization. Rather the evidence tends to show that the Company engaged in good faith bargaining and that the failure to reach an agreement to date has been the result of several circumstances, including the Company's inability to meet your demands because of its financial position and your insistence that the Company agree to accept the Union's increased welfare and pension plan proposal. The evidence further tends to show that Brathwaite's termination resulted from insubordination toward the Company foreman. I am therefore refusing to issue a complaint with respect to the allegations of overall bad faith bargaining and discriminatory discharge. The remaining allegations of the charge are being processed further. union demand had occurred, there would be a departure from the Union's policy of no discrimination and a reduction in costs to the employer covering a portion of the bargaining unit involved here I deem it unlikely, considering the balance of the record that this type of concession was made. It follows that I discredit Lasher's testimony that the meeting closed with the Company agreeing to consider the 9 percent proposal and to telephone him subsequently I note additionally that Lasher 's testimony as to any such agreement is inconsistent with the account reported by him in his pretrial affidavit 22 1 discredit Lasher's testimony as to the existence of an earlier telephone conversation on April 5, as well as his testimony that in the course thereof Wendel made a reduced offer of a 3-year contract , with a total cost of 7 percent, or 2 3 percent annually Wendel denies any such reduction in the Company's offer, and based upon demeanor, and my basic dissatisfac- tion with Lasher's testimony generally, I find Wendel the more reliable witness For like reasons, I also discredit Lasher's testimony that any such offer was communicated to the employees , and that Wendel informed him that the former would engage in no further meetings before the hearing in Case 29-CA-2717. This dismissal was never appealed by the Union. On that same date, the three and only former supporters of the strike, Honey, Brathwaite, and Walker, presented the Company, a written revocation of their checkoff authorizations. On April 18, a decertification petition in Case 29-RD-137 was filed with a declaration of intent to disaffiliate signed by all three of the above employees. Thereafter, and pursuant to telephone requests by Lasher, Wendel agreed to meet with him in the office of the Union's attorney, Stephen Sturm. Sturm , Lasher, and Wendel were the only persons present . Sturm did not testify and a conflict exists between Lasher and Wendel as to the content of this meeting. Based on resolutions of credibility heretofore made and my assessment of the probabilities, my findings of this meeting are based on segments, but not the entirety of the testimony of either Lasher or Wendel . Thus, I find that at this meeting Wendel advised the Union that employees abandoned the strike because of the Union's bargaining tactics, and adamant position on welfare and pension. Lasher offered at this meeting to accept the Company 's proposal (I find this to be the 5.5 percent 3-year package), and Wendel informed Lasher that he would check with Helfand and let him know.23 In my opinion, this was the last meeting in which any bargaining took place. Subsequently, Lasher succeeded in reaching Wendel by telephone on April 30. Wendel at that time stated that no settlement could be made on the basis discussed at the April 20 meeting and that the Company would not sign a contract with the Union, and that there would be no further meetings.24 On May 18, 1972 , at the hearing in Case 29-CA-2717, Lasher again requested a meeting of Wendel, who indicated that there would be no further negotiations.25 On August 1, 1972, Lasher sent Respondent a letter stating as follows: Pursuant to our rights as outlined in the decision and order of N.L.R.B. dated July 7, 1972, we hereby request a meeting with you as soon as possible to sign the labor agreement which terms and conditions we agreed to with your attorney, G. Wendel , on April 20, 1972.26 Thereafter, Wendel agreed to a meeting with Sturm and Lasher on August 31. Helfand also attended. According to 23 Although I am satisfied and find that though Lasher knew the decertification petition had been filed , there is no evidence or reasonable basis for finding that Wendel, on this date, had knowledge thereof 24 Based upon the credited testimony of Lasher, which is not contradict- ed directly and, furthermore , that such a telephone contact was made is entirely probable when considered in the light of my findings as to the April 20 meeting 25 That hearing was adjourned pursuant to settlement discussions, and on May 19, a formal settlement stipulation was executed by the parties with respect to the complaint The stipulation was made the subject of a decision and order of the Board on June 7, 1972. and a notice was posted by Deblin pursuant thereto on July 17, 1972 On September 12, 1972, the United States Court of Appeals for the Second Circuit enforced said order of the Board On October 2. 1972, compliance being achieved pursuant to the settlement, the Regional Director closed Case 29-CA-2717 26 Lasher's reference to an agreement having been reached on April 20 is a mystery to me Under no version of the testimony presented here. including that of Lasher, was there any indication that a formal or informal accord had at any time been reached 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the credited testimcny of Wendel, his assent to this meeting was a courtesy to Lasher, with whom he had a history of dealings in labor management matters elsewhere. Lasher, at this meeting, made a strong appeal that a contract be signed Lased on the April 20 proposal of the Union in view of the parties' long bargaining history. Lasher was informed by Wendel that the Union no longer represented the employees, and, accordingly, that there would be no contract.27 On September 14, 1972, the charge in the instant proceeding was filed, and on November 30, 1972, the Regional Director issued the complaint on which the present action is based. On November 30, 1972, the Regional Director administratively dismissed the decertifi- cation petition in Case 29-RD-137, on the ground that the proceeding and settlement agreement in Case 29-CA-2717 precluded a question concerning representation at the time the petition was filed. A timely appeal was filed by Petitioner Bill Honey with the NLRB in Washington, D.C., challenging the latter action by the Regional Director. On April, 17, 1973, the Board denied the appeal, stating: Having duly considered the Petitioner's appeal of the Regional Director's dismissal of the instant petition the Board concluded that, as an 8(a)(1) and (5) complaint issued November 30, 1972, in Case 29-CA-3505, alleging inter alit that since April 5, 1972, the Employer had bargained is bad faith with no intention to enter into any final or binding contract and as such alleged conduct antedated the filing, April 18, 1972, of the instant petition, the Regional Director's dismissal of the petition is affirmed. The Board's action with respect to the appeal is not without significance; for, in altering the basis for dismissal of the decertification petition, from that offered by the Regional Director, the Board has left open the question of whether the charges filed in Case 29-CA-2717, and the ultimate disposition thereof, blocked both the decertifica- tion activity as of April 18, 1972, and the employer's reliance thereon as a basis for its subsequent refusal to bargain with the Union. C. Conclusions 1. Preliminary statement Ultimately at stake in this proceeding is whether a remedial order, which would require further good-faith 27 Based upon a composite of credited portions of the testimony of Lasher, Helfand, and Wendel 28 It is true that the Regional Director , with subsequent Board approval, in dismissing the instant petition, ruled that no question concerning representation could be raised at the time that said petition was filed However, the Regional Director's decision was based on the proceedings growing out of the settled allegation in Case 29-CA-2717. The Board, in affirming that dismissal , avoided reliance upon that closed case, but instead cited the instant complaint as precluding further processing of the decertification petition. Although I shall consider the impact of Case 29-CA-2717 upon the issue of good-faith doubt below, it follows from the Board's action that, in its view, the present complaint constituted a clear impediment to the raising of a question concerning representation at the time the decertification petition was filed . This, however, is not a complete or final answer to Respondent's reliance upon Telaurograph, supra, in this case. In this connection, it is noted that the decertification petition was filed, bargaining for a reasonable period of time, should not issue. As will be seen, infra, this turns upon whether the 6 months of fruitless collective bargaining, the employee decertification activity, and the Union's loss of majority were attributable to or a possible byproduct of misconduct which the General Counsel seeks to attribute to Respon- dent. In considering the facts, I am satisfied and find that Respondent, commencing on April 30, 1972, and at all times subsequent thereto, declined to participate in further contract negotiations with the Union. However, at that time, a decertification petition was pending, and I am further persuaded that the employer possessed facts, which, at the very least, furnished a reasonable basis for believing that the Union had lost its majority. Thus, as of April 12, 1972, there were five employees in the appropri- ate bargaining unit, including Honey, Brathwaite, and Walker, the only three who supported the strike for its duration. It will be recalled that all three abandoned the strike and returned to work that day. The other two workers then in Respondent's employ at no time partici- pated in the union-sponsored strike, but continued to work during the course thereof. On April 13, Honey, Brathwaite, and Walker notified Respondent of their desire to revoke their checkoff authorizations. On April 18, the decertifica- tion petition was filed, which remained in a viable state before the Regional Director until after issuance of the instant complaint. On or about April 18, Bill Honey presented a document to Helfand, containing the signa- tures of Honey, Brathwaite, and Walker, stating that they did not wish to be represented by the Union, or any other labor organization. On this basis, I reject the General Counsel's contention that the record fails to support the Respondent's claim that it ceased bargaining with the Union on the basis of objective considerations furnishing a doubt of the Union's majority status. Concerning, the decertification petition, I note that in Telautograph Corporation, 199 NLRB 892, the Board, in effect, held that a decertification petition, supported by an adequate showing of interest, which raises a real question concerning representation standing alone may provide a defense to an employer's refusal to participate in further contract negotiations.28 In addition, it is settled Board policy that an employer may decline to recognize and engage in further bargaining with an incumbent representative where, as here, it can be and bargaining was curtailed prior to the filing of the charges on which the instant complaint is based Therefore, if the instant complaint fails to establish a possible connection between employer misconduct and employ- ee defections, it must be concluded that Respondent was nonetheless justified in refusing to bargain on the basis of the then pending decertification petition Any other result would fail to give full interplay to the rights and obligations defined in the Act A nonmeritonous unfair labor practice complaint should not serve to vitiate uncoerced decertification activity and impose a bargaining relationship on unwilling employees solely on the basis of technical procedural concepts which require automatic dismissal of a decertification petition upon issuance of an 8(a)(5) complaint. Should such complaint ultimately be dismissed, all value in the procedural rule which dictated dismissal of the decertification petition will have been exhausted, and statutory policies may only be vindicated by viewing said petition as raising a question concerning representation nunc pro tune DEBLIN MANUFACTURING CORPORATION 399 shown that objective facts provided a reasonable basis for believing that the union had lost its majority.29 Although I am persuaded that the decertification petition,30 considered alone or in conjunction with the other objective evidence of loss of majority, tends to support the legitimacy of the Respondent's discontinuance of bargaining on April 30, it is also a matter of settled Board authority that a defense so grounded is unavailable where the employer has engaged in misconduct tending to dissipate the union's majority and thereby induce said loss of majority.31 The General Counsel views this as just such a case. In doing so, he argues that the withdrawal of recognition and curtailment of bargaining occurred against a background of contract negotiations, in the course of which Respon- dent bargained in bad faith and with no intention of reaching agreement. In addition, it is argued, that any defense based upon a doubt of majority is unavailable, since the Respondent ceased bargaining during the pendency of the charge in Case 29-CA-2717. Thus, there are two possible grounds for rejecting the Respondent's good-faith doubt: (1) the bad-faith issue, which is alleged as an 8(a)(5) violation in this case, and (2) the fact that Respondent terminated bargaining while an outstanding unfair labor practice charge was unremedied. Apart from the foregoing, which I shall consider below, I find that Respondent's defense, in all other respects, is substantiated by this record. 2. The alleged bargaining in bad faith In my opinion, the record does not substantiate the allegations in the complaint that Respondent, since April 5, 1972, bargained in bad faith and with no intention of reaching agreement. Indeed, I am satisfied that at all times between September 24, 1971, and April 30, 1972, Respon- dent's conduct at the bargaining table was consistent with its obligation to bargain in good faith 32 The contract negotiations, under scrutiny here, which proved fruitless, took place against a bargaining history of 29 See e g. United States Gypsum Company, 157 NLRB 652, 655, Laystrom Manufacturing Co, 151 NLRB 1482, 1484 enforcement denied on other grounds 359 F.2d 799 (C A. 7, 1966). 30 Following Telautograph, supra, the Board in National Cash Register Company, 201 NLRB 1034, distinguished the former in holding that a decertification petition furnished no defense to a refusal to bargain where the employer had inspired the filing of such a petition In the instant case, the record shows that the petition was filed voluntarily by the employees and without encouragement of the Respondent. 31 Celanese Corporation of America 95 NLRB 664, 673, Plastiline, Inc, 190 NLRB 365, ALJD, General Motors Acceptance Corporation, 196 NLRB 137, and cases cited at In 8 therein 32 My analysis of the surface bargaining allegation is made in the posture most favorable to the General Counsel and constitutes a review de novo of the entire course of bargaining, without regard for Section 10 (b) and the fact that the Regional Director on April 13, 1972, dismissed a charge based on the same theory. Although under my disposition of the case it is unnecessary for me to reach Respondent's contention regarding Jefferson Chemical, supra, I would note that, as I interpret that decision, it, at best, has only limited value here Involved there was a summary dismissal of a surface bargaining allegation without a hearing, where the complaint was based entirely on facts predating an earlier 8(aX5) case involving the same parties. In that earlier proceeding the general counsel at the hearing disclaimed any assertion that the respondent had engaged in surface bargaining. A divided Board upheld the administrative law judge's grant of summary judgment based on his ruling that the General Counsel was some 15 years. There is no evidence of union animus. However. Respondent's strong aversion to the Union's economic demands is plainly evident. In this latter regard, Respondent's plea of inability to pay was received by the Union with apparent disinterest. The Union at no time laid serious challenge to this assertion, nor did it avail itself of Respondent's books and records to investigate whether or not the economic representations of Respondent had foundation. This is understandable, however, for basically the Union's position was dictated by considerations far beyond this small bargaining unit . Thus, the Union was the sponsor of industrywide welfare and pension trusts covering employees of about 60 other employers. These trusts were governed by documents, not subject to separate negotiations with each of the participating employees. With respect to the welfare program, prior to the commencement of the negotiations involved here, changes had been made in the governing declaration of trust which provided for broader coverages and benefits and hence greater costs. It is the sense of Lasher's testimony and should be obvious in any event that the solidarity of employer participation and the financial integrity of the plan depended on the equality of the level of contributions negotiated by the Union with all employers, including the Respondent. The foregoing supplies the explanation for the rigidity in the Union's demands for a 7 percent increase in welfare and I percent in pension contributions, which credible evidence shows to have been insisted upon without significant moderation from September 1971 to April 20, 1972.33 It is true that the Company moved very little from its 5.5 percent package. However, the failure to make a conces- sion or counterproposal, though possibly indicative of bad faith, is not in all cases to be branded with such a construction.34 The Union's demands for pension and welfare represented an increase of 8 percent in hourly payroll cost alone, even before wages were considered. I have no reason to doubt Respondent's declared inability to finance such an increase. In the face of the intransigence of the Union, no suspicion is aroused by Respondent's failure precluded from litigating that same issue in a subsequent proceeding where based entirely upon facts available at the time of the hearing in the earlier case Unlike Jefferson Chemical, the surface bargaining charge in the instant complaint rests upon alleged facts which postdate dismissal of the portion of the earlier charge involving that same theory Therefore, the pleadings in this case make out a cause of action, and whether an unfair labor practice occurred can only be ascertained upon full trial on the merits . In these circumstances, summary dismissal pursuant to Jefferson Chemical would be inappropriate However, as will be seen, infra, In 36, this does not mean that said decision is totally inapposite to the issues presented here. 33 In his brief the General Counsel argues that since the welfare and pension funds were a percentage of wages, each time the Union reduced its wage demands, there was a concomitant reduction in its position on welfare and pension From a total cost standpoint , this may be true , but I do not view it as indicative of union flexibility on the basic issue in the negotiations, for I do not regard the wage question as contributing substantially to the breakdown in negotiations . From the record it is my feeling that, independent of the welfare and pension issue a settlement could be achieved on a wage increase within the phase II guidelines. Perhaps, Lasher's understanding that this was so, is an explanation as to why Lasher's testimony is devoid of any reference to this asserted reduction in welfare and pension demands by the Union which the General Counsel for the first time argues in his brief 34 See Webster Outdoor Advertising Company, 170 NLRB 1395, 1396-97. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to take the initiative and make what would then have appeared to have been futile concessions, solely to narrow the gulf between the parties' respective positions.35 I read nothing into Respondent's stance on economic matters other then an intent on its part to reach an accord compatible with its financial situation. The only other credited evidence that could be construed as bearing adversely upon Respondent's state of mind consists of (1) the various statements by Helfand to the effect that acceptance of the Union's demands would require a termination of operations, (2) the letter of January 28, 1972, in which Respondent stated that it planned to terminate operations in March, (3) the December 1971 meeting with the employees that was the subject of the settled complaint in Case 29-CA-2717, and (4) the fact that at a bargaining session of February 27, 1972, Helfand said he was only there to listen to the Union's proposals. As to (4) above, Helfand indicated to the Union at the February 27, 1972, meeting that this position was taken on advice of counsel in view of the 8(a)(5) charge that had been filed by the Union some 3 weeks earlier. Although such a posture at the bargaining table is hardly compatible with good-faith bargaining, the statement in question was predicated upon the absence of Respondent's counsel while a charge of overall bad faith was pending, was limited to a single meeting, and stands as an isolated incident when considered in the context of the remaining bargaining sessions. I am unwilling to find that this single, isolated expression raises a suspicion as to the bonafides of Respondent's conduct during the entire course of negotia- tions. I do note, however, that the various references to a possible closedown if the Union should not soften its demands, though perfectly lawful expressions, may be viewed as questionable when considered with the letter of January 28, 1972, in which Respondent informed the Union that a shutdown was imminent. Although Respon- dent, at the hearing, offered an explanation for this letter, which tended to soften its punch considerably, there is no testimony that this was ever communicated to the Union. The letter itself was likely to exacerbate feelings, as it did, and for reasons not apparent from the record, Helfand chose not to allay these feelings. However, at worst I view this entire matter as a tactical maneuver, which had little bearing on what subsequently transpired. The parties continued to meet and discuss the issues, though their, positions were not altered materially at any time prior to the employees' repudiation of the Union in April 1972. Although, Respondent's conduct in this regard, is not to be condoned, it is my view that the closedown letter was a device to achieve agreement rather than to defeat such a result, and that neither standing alone, nor considered in as See, e g., Memorial Consultants, Inc, 153 NLRB 1, 15. 36 1 would also note that , apart from Respondent's repudiation of bargaining on and after April 30, 1972, there is absolutely no credible evidence putting in question Respondent 's good faith following April 5, 1972, the date alleged in the complaint as the starting point for the surface bargaining allegation herein Since I have found that Respondent 's April 30 cessation of bargaining was based upon a legitimate doubt of majonty, that action standing alone can only be viewed as perfectly legitimate Alternatively, therefore, while I have found that the credible evidence dealt with above does not bear adversely upon the Respondent 's state of mind as conjunction with other aspects of Respondent's conduct at the bargaining table, could this preclude the otherwise legitimate suspension of bargaining that subsequently occurred in the face of Respondent's good-faith doubt of majority. - If there is a single factor that points to serious impropriety in Respondent's actions during the course of the negotiations, it is the meeting with employees conduct- ed by Helfand in December 1971. Helfand then proposed to the employees Blue Cross-Blue Shield in lieu of the Union's welfare program, coupled with an indication that a higher wage increase could then be afforded, and a statement by Helfand that under such arrangement the employees would not need the Union. Under normal circumstances, an incident of direct dealing such as this would provide strong evidence of a disposition on the part of an employer to avoid reaching agreement . However, here again, when considered in the light of the subsequent bargaining, and particularly the Union's position on welfare and pension, I am unwilling to find that any implications stemming from that meeting lingered beyond December 1971, or that on the basis thereof, Respondent must be branded with a conclusion that it engaged in surface bargaining throughout, and at no time intended to reach agreement. In sum, it is my conclusion that the allegations in the complaint that Respondent bargained in bad faith and with no intention of reaching agreement are not substanti- ated by the record. The matters related above, neither individually nor collectively, indicate that the ultimate withdrawal of recognition occurred against a background of bad-faith bargaining on Respondent's part. According- ly, Respondent was not precluded, by virtue of its conduct at the bargaining table, from asserting either the decertifi- cation petition, or a good-faith doubt of majority as a bar to further negotiations.36 3. Case 29-CA-2717 and the good-faith defense As heretofore indicated at the time the decertification petition was filed and when Respondent repudiated any obligation to bargain further with the Union, the complaint was pending in Case 29-CA-2717. That complaint was based solely upon Helfand's meeting with employees in December 1971 and alleged that, in the course thereof, Respondent unlawfully promised benefits and engaged in direct dealing with the employees. The General Counsel argues that Respondent was not free to assert a good-faith doubt as a justification for the curtailment of bargaining during the pendency of that case. The General Counsel is substantively correct in observing reflected by its conduct at and away from the bargaining table prior to April 5, 1972, it would seem that Jefferson Chemical, supra, quite independently of my analysis of the earlier events, would bar a finding of surface bargaining during that period It would seem that if, as in Jefferson Chemical, the General Counsel is estopped from litigating a surface bargaining charge where based entirely on facts predating his refusal to litigate such a theory during an earlier 8(aX5) proceeding, a like result would follow where as here, the only evidence of bad faith predates the Regional Director's dismissal of an earlier surface bargaining charge DEBLIN MANUFACTURING CORPORATION 401 that a good-faith doubt normally may only be raised in a context free of unfair labor practices.37 However, it is noted that, considering the ultimate disposition of Case 29-CA-2717, and the nature of the Regional Director's subsequent action i_-i proceeding with the instant case, the General Counsel's present contentions relative to Case 29-CA-2717 arise in a somewhat unusual, if not totally defective, context. For the unfair labor practice alleged in the complaint in Case 29-CA-2717 has never been the subject of a finding by either an administrative law judge or the Board. Instead, as it will be recalled, the issue involved there was the subject of a formal settlement stipulation executec on May 18, 1972. That settlement stipulation contained a clause stating: "It is understood that the signing of this stipulation by Respondent does not constitute an admission that it has violated the Act." In addition absent from said stipulation is any affirmative provision requiring Respondent to engage in further bargaining with the Union. Although on its face the settlement stipulation appears to be a final disposition of Case 29-CA-2717,38 the Regional Director, on issuing the complaint now before me elected not to set aside the settlement agreemer t, so as to permit litigation of the unfair labor practice issue resolved thereby. Accordingly, the General Counsel, under the contention now being considered, is asking me to find an unfair labor practice not alleged in the instant complaint, but which is the subject of another charge, in another case, and under a settled complaint, in which the settlement has not been set aside. Although, I am somewhat troubled by the technical consequences of such procedures. disregarding them, I am nonetheless satisfied that application of Board law to the present facts requires rejection of the General Counsel's contention and I shall treat this issue on the merits.39 Thus, assuming, without deciding, that the issue is properly before me. I find that the evidence herein fully substantiates the unfair labor practice alleged in the complaint in Case 29-CA-2717. However, this does not end the inquiry. To sustain the General Counsel's present contention, and hold that Respondent was not free to assert a good faith doubt, would require an affirmative bargaining order, calculated to assure additional bargain- ing and ultimate agreement on a new contract which could bar an election for its duration. Recognizing the effect of such relief, and its impact upon employee choice, the Board has sought to avoid the issuance of such order, if based strictly on technical grounds, and where such relief would result in continued imposition of a bargaining representative on an unwilling majority, whose defection in no sense related to the prior unfair labor practice. Therefore, the Board, over the years, has declined to regard the rule precluding employers from asserting a good-faith doubt in a context of unfair labor practices as "an absolute prohibition." 40 This is so even where the prior unfair labor practice is unremedied at the time that recognition is withdrawn.4i In my opinion, this is a case in which statutory policies would not be furthered by an overriding of employee choice in the interest of remedying a prior unfair labor practice. As I view the facts in Case 29-CA-2717, the December 1971 meeting was an isolated event, having only the slightest bearing on the bargaining immediately thereafter and being of absolutely no consequence to the ultimate result in the negotiations. The employees, at that meeting, rejected Helfand's proposals, and their subse- quent actions negate any assumption that their support of the Union was shaken in consequence of this incident. Indeed, their vocal support of the Union as they communi- cated it to Helfand, in rejecting his offers, was translated into positive action some 6 weeks later when, in support of the Union's demands, the employees elected to strike. That strike continued for 3 months, and was ultimately abandoned by the employees because of their dissatisfac- tion with the Union's bargaining strategy and the Union's dealings with certain strikers.42 There is neither a showing nor basis for inferring that any other considerations contributed to the cessation of the strike, the decertifica- tion activity, and the employees withdrawal from the Union. Furthermore, aside from the December meeting, Respondent engaged in no other unfair labor practices, no other contacts pertaining to the bargaining were made with employees, and the proposals made by Helfand at the December meeting were never implemented. Thereafter, Respondent continued to bargain in good faith and met with the Union on nine separate occasions. The inability to reach agreement despite Respondent's good faith during negotiations, in my judgment, was the major, underlying factor leading to the Union's loss of majority, a result in which the Union was at least equally culpable. In these circumstances, I am convinced and find that any unfair labor practice growing out of Helfand's meeting 37 See, e g, I eking Lithographers, Inc, 184 NLRB 139. 38 On October 2, 1972, almost 2 months prior to issuance of the complaint in the instant case and while the charge herein was pending in the Region , Respondent was notified by the Regional Office that it had complied with the terms of the settlement in Case 29-C 4-2717 ip I note that, though not referred to by the General Counsel in his brief, the settlement stipulation also contained a statement that. "It is further understood and agreed that the evidence relating to the issues settled herein may be adduced in evidence in any subsequent proceeding before the Board concerning or related to the issues involved herein." In my opinion, that clause simply provides for the admissibility of evidence in a subsequent proceeding and does no more It furnishes no convincing explanation for the Regional Director's failure to adopt the orthodox procedures for a repudiation of the finality of settlement agreements, so as to allow the content thereof to he litigated as an unfair labor practice in a subsequent proceeding 40 Colonial Manor Convalescent & Nursing Center, a Division of La Grange Land Corporation, 188 NLRB 861. ii .Mission Manufacturing Co, 128 NLRB 275, Midwestern Instruments, Inc, 133 NLRB 1132, Cf C & C Plywood Corp, 163 NLRB 1022 42 For example. William Honey, the union steward who, along with Lasher, attended all bargaining sessions before and during the strike, credibly testified that during the strike he began to change his mind about the Union. In explaining this, Honey referred to a statement by Union President Weisler at the meeting of January 30 to the effect that the Union would have to have the increase in pension and welfare contributions and that Weisler "didn' t care what the men settled for otherwise;" as well as a similar remark made by International Representative Altman. at a meeting in late March Honey also referred to an agreement he had with the Union that was not kept Thus, without contradiction. Honey testified that Lasher agreed to make mortgage payments on Honeys home during the strike One such payment was made by Lasher, but on April 12, 1972, Honey was informed that foreclosure proceedings had been instituted against his home for nonpayment . Honey informed the other strikers of this, and all agreed to attempt to get iheirlobs hack 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with employees in December 1971 did not have a meaningful impact on the Union's status, nor did it cause the employees' disaffection from the Union or bear adversely upon the parties efforts to reach an agreement. Such being the case, the Board's remedial authority must yield to the right of employees to reject a representative with which they have become dissatisfied . Accordingly, I reject, as without ment, the General Counsel 's contention that the settled unfair labor practice in Case 29-CA-2717 precluded Respondent's repudiation of bargaining either on the basis of the decertification petition or the facts it possessed establishing a reasonable basis for a belief that the Union had lost its majority. 4. Summary It is my conclusion that the allegations of the complaint as to surface bargaining are not substantiated by the record, and that Respondent' s termination of bargaining in late April 1972 was based upon the pending decertification petition and objective facts tending to establish the Union's loss of majority. Accordingly, it being my opinion that this good-faith doubt was not causally related to any improper or unlawful conduct attributable to Respondent, I shall recommend dismissal of the complaint in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Deblin Manufacturing Corporation is, and has been at all times material herein , an employer within the meaning of Section 2(3) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union , Local 28A, Metal Production and Novelty Workers' Union, International Brotherhood of Painters and Allied Trades, AFL-CIO, is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. 3. As found above, Respondent has not bargained in bad faith without intention of reaching agreement on and after April 5, 1972, has not engaged in an unlawful refusal to bargain by withholding recognition and refusing to bargain further with the Union on and after April 30, 1972, and has not engaged in unlawful conduct designed to destroy the Union's majority status among employees in the appropriate unit. Upon the foregoing findings of fact and conclusions of law, and upon the entire record herein , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER43 The complaint is hereby dismissed in its entirety. 43 In the event no exceptions are filed as provided by Sec 102.46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board , the findings, its findings, conclusions, and Order, and all objections thereto shall be conclusions , and recommended Order herein shall , as provided in Sec. deemed waived for all purposes.