Orion Corp.

ORION CORPORATION Orion Corporation and District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 30-CA-2157 May 16, 1974 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On June 19, 1973, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed limited exceptions and a supporting 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 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 as modified herein. The record shows, and the Administrative Law Judge found, that the Respondent refused to bargain with the Charging Party in violation of Section 8(a)(5) of the Act. Briefly, the Union was certified on April 1, 1971, as the exclusive bargaining representa- tive for the Respondent's production and mainte- nance employees. During the next year the parties held over 25 negotiating sessions, the last of which was held on May 19, 1972, when a Federal mediator was present. By letter dated August 11, 1972, the Respondent advised the Union that it was withdraw- ing recognition on the ground that it believed the Union n- longer represented a majority of employ- ees. The Administrative Law Judge found, and we agree for the reasons set forth in his Decision, that the Respondent had no reasonable basis for believing that a majority of employees in the unit no longer wished to be represented by the Union. Under established Board precedent,' a certified union, upon the expiration of the first year following its certification enjoys a rebuttable presumption that its majority representative status continues. An employer may lawfully refuse to bargain with a union if it affirmatively establishes that, at the time of the refusal, the union no longer commanded a majority or that the employer's refusal was predicat- ed on a reasonably based doubt as to the continuing i Celanese Corporatien of America, 95 NLRB 664 2 Member Kennedy states in his dissent , "The Union's admission that it had only 16 or 17 members in a bargaining unit of 44 employees is 633 majority. With respect to the former there must be affirmative proof that the majority of unit employees no longer wanted the union to represent them. With regard to the latter, the employer need not prove that the union lost its majority but need only establish that it had a reasonable basis for doubting the union's majority at the time it refused to bargain. The Board has recently reaffirmed these principles in Automated Business Systems, 205 NLRB No. 35. In applying the above principles to the instant case, the Administrative Law Judge found that the basis upon which the Respondent formed its doubt as to the Union's majority representative status was as a whole not objective, but rather subjective, a matter of opinion and a frame of mind. We agree. Prior to its withdrawal of recognition, the Respondent checked a list of unit employees which Respondent claims revealed that 24 to 26 of the approximately 44 unit employees no longer supported the Union. As more fully set out in the Administrative Law Judge's Decision, the record shows that although there is objective evidence with respect to a few of these employees, there was no reliable evidence with respect to the majority of these employees. The Respondent's information about this latter group of employees consisted of such speculations as the employee was happy, he was a loner, or he was acquainted with business problems. The Respondent, in its exceptions, contends that the Union in fact no longer represented a majority of unit employees on August 11, 1972, when recognition was withdrawn. To support its contention, Respon- dent relies on evidence that 10 employees resigned from the Union in 1972 before August 11 and that the Union admitted at the hearing that it had only 16 or 17 members on that date. This evidence is insufficient to prove that the Union failed to represent a majority. "For, a showing as to employee membership in, or actual financial support of, an incumbent union is not the equivalent of establishing the number of employees who continue to desire representation by that union. There is no necessary correlation between membership and the number of union supporters since no one could know how many employees who favor union bargaining do not become or remain members thereof." 2 The Respon- dent has offered no other evidence bearing on this issue. For the above reasons, we find that the Respon- dent has not shown (1) that the refusal to bargain was predicated oil a reasonably based doubt as to the continuing majority status of the Union; or (2) that the Union, at the time Respondent withdrew recogni- dispositive of this case " We do not agree as it is our understanding that this is contrary to Board law. See Terre!! Machine Company, 173 NLRB 1480, 1481, and United Aircraft Corporation, 168 NLRB 480. 210 NLRB No. 71 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, no longer represented a majority of unit employees. Therefore, we agree with the Administra- tive Law Judge that Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from the Union on August 11, 1972. In his dissent Member Kennedy, relying in part on the evidence from the Union's records that 10 employees had resigned from the Union prior to August 11, 1972, and that there were only 16 or 17 union members on that date, concludes that the Respondent's doubt was based on objective consid- erations. We do not agree. The Respondent first learned of this evidence at the hearing-long after it withdrew recognition from the Union.3 Assuming such evidence were relevant to a showing of a reasonable basis for doubt, it cannot have a bearing here, since facts regarding union support ascertained after the refusal to bargain are not controlling, or even guiding, in determining whether the Employer had a reasonable basis for doubt at the time it refused to bargain. Rather, what is controlling is whether the Respondent had a reasonable basis for doubt at the time it refused to bargain. We have found that it did not. We recently stated in Automated Business Systems, supra, "Member Kennedy, while he acknowledges that there is a distinction between establishing a basis for reasonable doubt and proving loss of majority, nevertheless equates the two in legal effect ...." Member Kennedy's rationale here would equate evidence relating to loss of majority with evidence proving an objective basis for doubt. The timing is off. His rationale would permit an employer at its whim to withdraw recognition in the hope that subsequent litigation would reveal what would be grounds for reasonable doubt had the employer based its withdrawal on that evidence. This is contrary to the well-established principle that if an employer does not establish that it had a reasonable doubt when it ceased bargaining, it can defend against an 8(a)(5) allegation only by showing actual loss of majority as of the date of withdrawal of recognition.4 While we agree with the Administrative Law Judge that Respondent violated the Act, we have difficul- ties with respect to certain aspects of the Administra- tive Law Judge's recommended remedy and to certain remedies sought by the General Counsel. The Administrative Law Judge, in addition to the usual cease-and-desist order and notice-posting requirements, recommended a broad order requiring Respondent to cease and desist from in any other manner interfering with employee rights. A broad order is clearly warranted here. The Respondent's violation goes to the very heart of the Act. The Administrative Law Judge, citing Tiidee Products, Inc., 194 NLRB 1234, also recommended that the Respondent be ordered to reimburse the Charging Party for its litigation costs in this case and for expenses incurred in negotiating with the Respon- dent. While we agree that Respondent acted in bad faith and failed to assert a meritorious defense for its actions, we do not agree that it would effectuate the policies of the Act to require reimbursement of such costs in the circumstances herein. Normally, litiga- tion and bargaining expenses are not recoverable by the Charging Party. In our opinion, the Respondent's conduct, although serious, is not so aggravated and pervasive, or its defense so frivolous, as to warrant this special additional remedy. The Respondent's conduct is not part of a pattern of repeated unlawful actions. Nor is this a summary judgment case in which the Respondent continues to assert frivolous contentions, not to preserve a defense, but to further delay compliance with an earlier decision.5 As we recently stated in Heck's Inc., 191 NLRB 886, the public interest in allowing a charging party to recover costs of litigation does not override, except in extraordinary circumstances, the principle that litiga- tion expenses are normally not recoverable. In the present case, we find no extraordinary circumstances warranting such a remedy and deem it inappropriate to depart from our existing policy with respect to remedial orders in cases involving violations of Section 8(a)(5). Accordingly, we shall delete the recommended reimbursement order. In his limited exceptions, the General Counsel requests that the Board order the Respondent to pay costs under Rule 38, Federal Rules of Civil Proce- dure, in the event it fails to comply with the Board's Order. For reasons set out above, we do z & feel that the Respondent's conduct is so aggravated and its defense so frivolous that we should now direct the General Counsel to seek relief under Rule 38. The General Counsel also requests, and the Administra- tive Law Judge recommended, that we order the certification year to be deemed as commencing anew when the Respondent begins to bargain in good faith. We have found, however, that the Respondent has unlawfully refused to bargain commencing on August 11, 1972, more than a year after certification issued. (The Union was certified on April 1, 1971.) Furthermore, since the charge herein was filed on November 14, 1972, we are precluded by Section 3 When it withdrew recognition from the Union , the Respondent WOAF-TV, AM-FM, 201 NLRB 801, Member Penello later made it clear apparently was aware that some employees had resigned from the Union that he approved the result therein on the basis of a different rationale. See but was not aware of the evidence in the subpenaed records. fn 19, Automated Business systems, supra Although he joined Member Kennedy in Taft Broadcasting, 5 Cf. John Singer, Inc, 197 NLRB 88. ORION CORPORATION 635 10(b) of the Act from finding a violation of the Act occurring before May 14, 1972. Therefore, the Administrative Law Judge's finding that Respondent acted in bad faith from the date of certifications cannot be construed as a finding of a separate violation of the Act. As we are precluded from finding that Respondent violated the Act during the certification year, we cannot remedy Respondent's bad faith during that year. Extension of the certifica- tion year is therefore not warranted. 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, as modified below, and hereby orders that the Respon- dent, Orion Corporation, Grafton, Wisconsin, its officers, agents, successors, and assigns, shall take action set forth in said recommended Order, as so modified: 1. Delete paragraph 2(b) of the recommended Order and renumber the remaining paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER KENNEDY, dissenting: Respondent's withdrawal of recognition on August 11, 1972, occurred under circumstances which clearly establish an objective basis for Respondent's belief that the Union had lost its majority status. Indeed, the Union admitted that when recognition was withdrawn there were only 16 or 17 members in a bargaining unit of 44 employees. Consequently, I find that Respondent did not violate Section 8(a)(5) or (1) of the Act when it refused to continue to recognize the Union as the bargaining representative of its employees. The decision of the majority here is contrary to numerous Board and court cases which recognize that "an employer may lawfully withdraw recognition from an incumbent union because of an asserted doubt of the union's continued majority if its assertion of doubt is raised in a context free of unfair labor practices and is supported by a showing of objective considerations providing reasonable grounds for a belief that a majority of the employees no longer desire representation." See Southern Wipers, Inc., 192 NLRB 816, citing Viking Lithogra- phers, Inc., 184 NLRB 139. The facts in this case are largely undisputed. The Union was certified as the bargaining representative of Respondent's employees on April 1, 1971, follow- ing a Board-conducted election in which 20 votes were cast for the Union and 13 against. A series of 25 bargaining sessions were held over a period of 15 months . It is undisputed that 24 of these 25 meetings occurred outside the 10(b) period.7 The only meeting within the 10(b) period was held shortly before 5 p.m. on May 19, 1972, when the Union and Respondent met separately with a Federal mediator. The parties did not meet face to face and nothing occurred during that meeting which will support a finding that Respondent's conduct violated the Act in any way and we are precluded by the statute from finding any violation on the basis of anything that occurred at the other 24 meetings. It is undisputed that, through- out the 25 bargaining sessions, the parties never discussed wages. The Union admits that it had not made any wage proposal during the negotiations. It is not suprising that support for the Union declined among the unit employees during the long series of unproductive negotiations which did not include discussion of wages. Union Committee Chairman William R. Riedel, Jr., testified that membership started to decline after the first of the year and the members became "disgusted" because of the lack of progress in negotiations. The Union refrained from reporting to the employees as to what transpired at the bargaining sessions because they did not want to stir them up. Another factor prompting the employees to become disenchanted with the Union was a dues increase which was effective in January 1972. The subepnaed records of the Union reveal that 10 employees actually resigned from the Union between February and August 1972 and the dues of others lapsed. The Union made no secret of the defections by the employees. Indeed, the Union resorted to the tactic of trying to shame the employees into staying in the Union. Committee Chairman Riedel testified that he solicited defecting employees to sign a form stating, "I refuse to accept any benefits that will be won by Union negotiations . . . and I hereby authorize and direct the Company to withhold the amount of the Union-won benefits from my pay- check and to donate it to charity." Riedel testified that Dennis Higgins who was also a member of the bargaining committee also solicited employees to sign the shame form. It escapes me how the members of this Board can believe that the solicitation of employees to sign this form would not come to the attention of management of the Respondent. The majority is incorrect in its observation that 6 We do not agree with our dissenting colleague that permitting litigation majority by evidencing that the loss was occasioned by the Respondent's of the conduct of bargaining was prejudicial error. Such evidence is relevant bad faith as background to show the context in which Respondent withdrew r The initial charge herein was filed November 14, 1972. recognition I t would also be relevant to rebut a showing, if any, of loss of 636 DECISIONS OF NATIONAL Respondent first learned of the resignations at the hearing in this case. The plain fact is that General Counsel affirmatively developed during his case-in- chief that Respondent's supervisors were well aware of resignations and defections in the winter and spring preceding its withdrawal of recognition in August. Having elicited abundant testimony without objection, the General Counsel cannot now repudi- ate the very testimony which he offered. The testimony which General Counsel obtained from Joseph Moravchik, Respondent's manager of manu- facturing, as to his conversations with McBride, Mathews, Melk, Mentzel, Fromm, D. Harmon, W. Harmon, Bode, Kiehnau, Zirtzlaff, Pennington, and Labenstein cannot now be brushed aside as hearsay. Many of the conversations were between Moravchik and employees and therefore were not hearsay. Furthermore, the courts have long recognized that even hearsay evidence which is received without objection has probative value.8 Similarly, the testimony which General Counsel elicited without objection from owner and General Manager Charles P. LeBahn cannot be discounted, LeBahn testified supervisors had reported to him that 10 employees had dropped out of the Union before July 24, 1972.9 It is significant, I think, that the subpenaed records of the Union which were later produced at the hearing verified that 10 employees had in fact resigned from the Union before Respon- dent withdrew recognition. We have not said in earlier cases that a respondent must have proof, admissible in a court of law, that a union has lost the support of a majority of employ- ees. As a matter of fact we have said quite the contrary. In Taft Broadcasting, 210 NLRB No. 113, we said: While it is clear . . . that each of the factors relied on by the Respondent standing alone may have weaknesses as a basis for supporting a good- faith doubt of the Union's majority status, we note that the Respondent does not rely on any one reason alone, but rather on all as a whole .... [and] has produced sufficient evidence s See N L R B v. International Union of Operating Engineers, Local Union No. 12, 413 F.2d 705 (C.A. 9), enfg 165 NLRB 358, where the court stated: "There was no objection to this hearsay testimony. 'Hearsay, even at common law, if unobjected to when offered, can be of probative value, and certainly occupies a similar position in an administrative proceeding such as this.' Th " s The 10 employees named by LeBahn were Stanley Mathews, Kendall McBride, Ruth Newberry, Phillip Uselding, Marvin Hempleman, Mildred Bode, Donald Harmon, Edwin Hesprich, Arthur Kiehnau, and Ernst Fromm iu My colleagues disagree in in 2 of the majority opinion with my conclusion that the Union's admission that it had only 16 or 17 members in a bargaining unit of 44 employees is dispositive of this case. They cite United Aircraft Corporation, 168 NLRB 480, which was denied enforcement by the D C Circuit Court of Appeals 416 F 2d 809 (1969), and Terrell Machine Company, 173 NLRB 1480. I will not follow the Terre!! case since it LABOR RELATIONS BOARD when considered in its entirety to cast serious doubt on the Union's continued bargaining role and to support Respondent's decision to reassess the Union's majority status... . ... Since General Counsel failed to come forward with evidence that on the refusal-to- bargain date the Union in fact did represent a majority of employees in the unit in question, the allegations in the complaint are found without' merit. The Union's admission that it had only 16 or 17 members in a bargaining unit of 44 employees is dispositive of this case.i° In my view, resignation from a union cancellation of a checkoff authoriza- tion is totally inconsistent with the notion that the employee wants a union to continue to act as his bargaining agent. At the very least, such resignations or cancellations of checkoff raise doubts of contin- ued majority. This is particularly true since the employer is unable to question employees and ascertain their purpose in resigning or canceling their checkoff. It is axiomatic that there is no duty to bargain with a union which does not command support from a majority of employees. See N. L. R. B. v. Nu-Southern Dyeing & Finishing, Inc., 444 F.2d 11, 15 (C.A. 4, 1971), where the court stated: The law is settled that during the first year following certification a union is entitled to an irrebutable presumption of majority support. After this certification year, however, the pre- sumption may be overcome by proof that the union no longer enjoys such support or that the company reasonably has a good faith doubt of such support. [Emphasis supplied.] My colleagues ignore the fundamental principle that an employer may not deal with a minority union. The Employer's mistaken good-faith belief that a union represents a majority is no defense. Interna- tional Ladies' Garment Workers' Union, AFL-CIO, v. is inconsistent with the Board's decision in Convarr Division of General Dynamics Corporation, 169 NLRB 131 The Board dismissed the complaint and stated. [T]he sole evidence readily available to the Respondent as a reliable measure of union support was that provided by the employees' checkoff authorizations. The Board held that a 10-percent drop in checkoff authorizations was significant enough that the company could rely on the decrease as an objective factor showing that the union no longer held majority support. Similarly, in Hayworth Roll and Panel Company, 130 NLRB 604, the Board dismissed the 8(a)(5) complaint because the union had checkoff cards from less than a majority of the employees In Otto Klein, 172 NLRB 1922, the union's admission of lack of majority with only seven dues-paying members was a decisive factor in the Board's dismissal of the 8(ax5) complaint ORION CORPORATION 637 N.LR.B., 366 U.S. 731 (1961). We have said that an employer may not continue to deal with an incum- bent union if he has reasonable cause to believe that the union does not command majority support. In Anderson Pharmacy, 187 NLRB 301, the Board found that the employers violated Section 8(a)(1) and (2) by executing a new contract with an incumbent union when there was ample evidence that the employers were aware that the status of the Guild as the bargaining agent of the employees was open to serious question. The same reasoning must apply in the instant case. On this record there can be no question that Respondent's doubt was based on objective consid- erations. The General Counsel made no effort to prove that the Union in fact represented a majority of Respondent's employees in August 1972. Under these circumstances, the complaint should be dis- missed for failure of proof of the essential allegation of a refusal-to-bargain complaint. I reject the suggestion in the majority opinion that my "rationale would permit an employer at its whim to withdraw recognition." It is totally inaccurate to suggest or imply that Respondent's withdrawal of recognition was based on a mere whim. In this case, I adhere to precisely the same rationale I expressed in Southern Wipers, Inc., supra, and Taft Broadcasting, 201 NLRB 801. I think it noteworthy that Member Jenkins joined me in my rationale in the Southern Wipers case and Member Penello joined me in my rationale in the Taft Broadcasting case. In the last paragraph of the Taft Broadcasting case we said: "In sum, we conclude that, at the time it withdrew recognition, the Respondent had sufficient objective grounds for believing that a majority of the employ- ees no longer desired union representation. Since the General Counsel failed to come forward with evidence that on the refusal-to-bargain date the Union in fact did represent a majority of employees in the unit in question, the allegations in the complaint are found to be without merit." i I The result I reach in this case obviates extensive consideration by me of Respondent's various excep- ii The District of Columbia Court of Appeals stated the applicable rules in Lodges 1746 and 743, International Association of Machinists and Aerospace Workers, AFL-CIO [Untied Aircraft Corporation) v N L.R B, 416 F.2d 809, 811- 812 The legal principles relating to withdrawal of recognition of a bargaining representative are well settled. Absent special circum- stances, the union enjoys an irrebuttable presumption of majority status for one year after certification Thereafter, the presumption continues but becomes rebuttable upon a showing of "sufficient evidence to cast serious doubt on the union's continued majority status." At that point, the burden shifts to the General Counsel to prove that, on the critical date, the union in fact represented a majority of the employees [Emphasis supplied.] The Sixth Circuit Court of Appeals and the Eighth Circuit Court of Appeals tions which allege that the decision of the Adminis- trative Law Judge demonstrates "manifest bias of the Administrative Law Judge." In adopting his conclu- sion, however, the majority cannot ignore these exceptions in view of his abrasive rhetoric. I disavow the Administrative Law Judge's gratuitous comment that Respondent's counsel "was party to an overall and persistent plan by the Respondent to frustrate the expressed desires of its employees to bargain collectively through their union `from the day one.' " I can find nothing in this record which warrants such harsh criticism. The charge in this case was filed more than 6 months after the expiration of the certification year. The complaint does not and could not put in issue Respondent's conduct at the bargaining table during the certification year. There are no independent 8(a)(1) allegations in the complaint nor are there any allegations of 8(a)(3) violations of the Act. There is not the slightest suggestion in this record that the resignations and defections of the employees from the Union were the result of 8(a)(1) conduct. Under these circumstances, it was improper, in my opinion, for the Administrative Law Judge to charge that Respondent's bargaining was an "outrageous flout- ing" of the law "from the day one." If the Union believed that Respondent had engaged in "sham bargaining sessions," as found by the Administrative Law Judge, it was incumbent upon the Union to file a timely 8(a)(5) charge. I think it highly inappropri- ate for the Administrative Law Judge to have criticized Respondent's bargaining when the out- standing complaint raised no issue with respect thereto. The ultimate conclusion of the Administrative Law Judge that Respondent's withdrawal of recognition violated Section 8(a)(5) of the Act within the 10(b) period is predicated upon events outside the 10(b) period which the Administrative Law Judge consid- ered to be unlawful, but which Section 10(b) precludes from being found to be unlawful. Thus, the pre-10(b) conduct has become the sine qua non for the finding of an 8(a)(5) violation within the 10(b) agree that the General Counsel must prove majority if the employer offers evidence which casts serious doubt that the union no longer commands a majority See N L.R.B. v Dayton Motels, Inc, 474 F 2d 328, 331 (C A 6, 1973), NLRB v Little Rock Downtowner, Inc, 414 F 2d 1084, 1090-91 (C A 8, 1969) The courts thus recognize the reality stated by the Board in Stoner Rubbc, Company, Inc, 123 NLRB 1440, that since proof of majority is peculiarly within the special competence of the union , ordinarily an employer can hardly prove that the union does not represent a majority since he does not have access to the union's membership lists, its authorization cards, or other proof of union adherence In denying enforcement of Laystrom Manufactur- ing Co, 151 NLRB 1482, 359 F.2d 799 (1966), the Seventh Circuit Court of Appeals quoted with approval the Board's observation in the Stoner case that the "employer can hardly prove that a union no longer represents a majority." 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period. The Supreme Court in the Bryan Manufactur- ing Company case 12 plainly drew a distinction between what is commonly called "background" evidence and the use of evidence outside the 10(b) period to establish a violation within the 10(b) period. The Court stated: The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time- barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice. I do not understand how my colleagues can affirm the Administrative Law Judge's reliance upon pre- 10(b) conduct. They recently dismissed a CB complaint in Paper Products and Miscellaneous Chauffeurs, Warehousemen and Helpers, Local 27, IBT (Combined Container Industries), 209 NLRB No. 140, with the explanation that they could not rely on evidence of an earlier time-barred unfair labor practice. They stated: This is precisely what Bryan forbids the Board to do; i.e., find that an unfair labor practice was committed outside the 10(b) period to establish that another unfair labor practice was committed within the 10(b) period.4 If this is the only way a violation of the Act within Section 10(b) can be established, the complaint must fail. In the instant case the alleged coercion of the employees by supervisors to sign authorization cards would be an unfair labor practice if committed within the 10(b) period. And, unless this unfair labor practice is established, which it cannot be, the unfair labor practice of executing the contract cannot be established. Nor does it help to say, as the Administrative Law Judge does, that he is merely considering the circum- stances under which the cards were signed to "shed light" on the validity of the cards in order to establish the unfair labor practice of executing the contract. This is not a case of "shedding light." This is clearly a case of finding a precedent unfair labor practice as the predicate for an unfair labor practice within the 10(b) period. 4 Bryan Manufacturing Co, supra at 416, 417. In the instant case, the propriety of Respondent's conduct at the bargaining table was not challenged in the complaint and it cannot be an issue here by virtue of Section 10(b) of the Act. For the foregoing reasons, I dissent from the majority's decision. I would dismiss the complaint in its entirety. 12 Local Lodge No. 1424, International Association of Machinists [Bryan Mfg. Co] N LR.B., 362 U S 411,416-417. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the Federal law by refusing to bargain in good faith with District No. 10, International Association of Machinists and Aeros- pace Workers, AFL-CIO: WE WILL NOT refuse to recognize and bargain collectively with District No. 10, International Association of Machinists and Aerospace Work- ers, AFL-CIO, as the exclusive representative of the employees in the unit described below. The bargaining unit is: All production and maintenance employees in our Grafton, Wisconsin, plant, excluding office clerical employees, professional em- ployees, guards, and supervisors within the meaning of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to join or assist District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL bargain collectively, upon request, with the above-named Union as the exclusive representative of the employees in the above- described unit with respect to rates of pay, wages, hours of employment , and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. ORION CORPORATION (Employer) Dated By (Representative) (Title) 11 ORION CORPORATION 639 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held on February 22 and 23, and on April 30 and May 1, 1973, at Milwaukee, Wisconsin, on complaint of the General Counsel against Orion Corpora- tion, herein called the Respondent or the Company. The charge was filed on November 14, 1972, and the complaint issued on January 12, 1973. The sole issue of the case is whether the Respondent unlawfully refused to bargain, in violation of Section 8(a)(5) of the Act, with District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Orion Corporation, a Delaware corporation, is engaged in the manufacture of bearings at its plant located in Grafton, Wisconsin. During the past calendar year, a representative period, it sold and shipped goods valued in excess of $50,000 from this location directly to points outside the State of Wisconsin. I find that the Respondent is an employer within the meaning of Section 2(2) of the Act and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of the Case This is literally a refusal-to-bargain case. Following a Board-conducted election the Union was certified in April 1971 as exclusive bargaining agent for the Respondent's then approximately 33 production and maintenance employees. There followed, between about May 1971 and April 1972, more than 25 negotiation meetings between the parties. They last met on May 19, 1972, with a Federal conciliator in attendance; all that happened there is that the issues outstanding were somewhat identified. By letter dated August 11, 1972, the Respondent advised the Union it was withdrawing recognition on the ground that it believed the Union no longer represented the majority of the employees. These facts-certification in April 1971, 25 bargaining sessions, withdrawal of recognition-are clear and undisputed. The complaint alleges that the refusal to bargain on that day and, as the Company also concedes, thereafter, was illegal. The defense rests entirely upon an assertion that the Respondent had a reasonable and good- faith doubt about the Union's majority status. This question, as plainly stated here, is all that this case is about.' There are other allegations spelled out in the complaint, each a subordinate or collateral aspect of the general charge that the Respondent violated Section 8(a)(5) of the Act by its refusal "to bargain in good faith with the Union." These deal with tangential matters, some revealing and some cumulative and perhaps confusing. They will be dealt with at the end of this decision. On the real issue, the law is simple and clear. During the 12 months following Board certification of the union as the exclusive bargaining agent, there is a virtually conclusive presumption of continuing majority status. Ray Brooks v. N. L. R. B., 348 U.S. 96. The presumption continues thereaf- ter, but it then becomes rebuttable, depending upon the circumstances Terrell Machine Company, 173 NLRB 1480, enfd. 427 F.2d 1088 (C.A. 4, 1970). And when, following the initial 12-month period, an employer choses to withdraw recognition because it claims the union lost majority thereafter, the burden is upon the employer to establish the fact. Laystrom Manufacturing Co., 151 NLRB' 1482, reversed on other grounds 359 F.2d 799 (C.A. 7, 1966). This rule of law follows of necessity from the fact there is a presumption in favor of the refusal to bargain complaint in such cases and it has been so held. Celanese Corp. of America, 95 NLRB 664. And whenever an employer does in such a situation assert it had a reasonable or good-faith doubt of loss of majority, it must point to objective criteria to prove its defense. United States Gypsum Company, 157 NLRB 652. Mere statements of opinion by management agents, testimony reflecting no more than the mental operation of company witnesses, will not suffice. Objective means the opposite of subjective; it means something said or done by the employees themselves, upon which an impartial observer would be justified in making an inference of some kind. And finally, as it has also been held, evidence of dissatisfaction with a collective-bargain- ing agent duly selected must properly come from the employees themselves, if it is to carry any weight, and not from the employer on their behalf. N.L.R.B. v. Sanson Hosiery Mills, Inc., 195 F.2d 350 (C.A. 5). i There is no issue as to the appropriate unit The complaint alleges, the clerical employees, professional employees, guards and supervisors as answer does not deny, and I find that all production and maintenance defined in the Act, constitute a unit appropriate for the purposes of employees at the Respondent's Grafton, Wisconsin, plant, excluding office collective bargaining within the meaning of Section 9(b) of the Act 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Evidence Said to Support a Reasonable Doubt of Majority Charles LaBahn, president and owner of the Company, said unequivocally at the hearing it was he who made the decision to discontinue bargaining with the Umon. The other two participants in the critical events were James Mallien, the company lawyer who did all the bargaining personally, and Joseph Moravchik, the operations manager who part of the time assisted Mallien in the negotiating sessions. LaBahn testified that none of the employees spoke to him at all about their pro- or anti-union feelings. He made clear the only information that came to him on the entire subject he received from Moravchik, who may also have heard from other supervisors. Moravchik is the man whose day-to-day supervisory duties bring him in contact with the employees; he sees them often and is friends with a good number of them. What objective criteria or impersonal proof of an intent by employees no longer to be represented by the Union there may have been, came to Moravchik, and only to him. His testimony is therefore the ultimate story on which the affirmative defense to the complaint stands or falls. The thinking of management, and therefore of necessity a look at what basis it had for what it decided to do, is very clearly revealed by a document produced by Lawyer Mallien at the hearing, and by his testimony relating to it. On August 11, 1972, a letter withdrawing recognition was prepared immediately following a conference between the lawyer and the president of the company. Each had a list of employee names in his hands, and with LeBahn doing the talking about who he believed should be counted this way or that, they checked off what they thought was the Union's status at the moment. Mallien had the Excelsior list of 1971, with 33 names-the employee complement at the time of the election. LaBahn apparently had a longer and more current list, for about 14 employees had been hired after the balloting. In the Board election, held in March 1971, the vote had been 20 in favor and 13 against the Union. There had also been a Wisconsin's Employ- ment Relations Commission agency shop referendum election among the employees on August 31, 1971, where the vote had been 23 yes to the Union, and 11 no. Mallien and LaBahn went about it mathematically that day. On his list Mallien wrote "14 hired since Excelsior List, 2 retired, 1 (Dennis) is super." Dennis is Dennis Higgins, an employee who had been on the Union's bargaining committee at most of the bargaining sessions and who was promoted to supervisor on August 3, 1972. After noting that 23 had voted "yes" in the Wisconsin referendum, Mallien then subtracted 3 from that number and reduced the prounion group to 20. He then wrote down that there were 44 "employees now." As a witness he said this alone showed a lack of majority. His notes also contained the statement "however-at least five have resigned from union." Deferring for the moment appraisal of Moravchik's testimony about the factual basis of his thinking as to who favored the Union and who did not, if the case in defense be appraised in terms of Mallien's written calculation and his testimony, it would have to be found that the Respondent violated Section 8(a)(5) when it withdrew recognition on August 11. To say that the Union lost two adherents merely because two employees retired is pure speculation and not an objective criterion at all. Asked had he not considered the 14 new hires antiunion solely for the reason that they had come to work after the Board election, Mallien first equivocated but then admitted the fact. He qualified the position by saying 2 of the 14 were known members of the IAM when hired. If it be assumed for the moment five employees in fact told management they had resigned from the union, at best the Respondent could conclude was six employees out of 44-the five plus Higgins-no longer wished to engage in collective bargain- ing through this Union. It had no objective criteria for concluding anything more damaging than this to the Union's continuing majority status. See Laystrom, supra, ". . . new employees will be presumed to support a union in the same ratio as those whom they have replaced." As to what indication the Respondent had from the employees themselves concerning their attitudes toward collective bargaining through this union, we come to the evidence offered by Manager Moravchik . As to the 14 employees hired after the Union's certification, he said he interviewed "about 95 percent" of them before they started work ; he added that the applicants were also inter- viewed-"50 percent" of the time-by LaBahn . Without specific reference to particular individuals in this group of 14, Moravchik testified they-or a considerable number of them-indicated in the hiring interviews they were not in favor of the Union. LaBahn described his, and Moravch- ik's employment interviews, as follows: .. in the course of the interview, we felt it was the company's obligation to tell them what the circum- stance was at the time , that there was a union in the picture that had gained representation , that there had ... that no settlement had been reached, and that a dispute might result . Some made absolutely no com- ment when told that. Others would make other comments like it would make no difference to me or I've crossed picket lines before , expressions like that." Q. (By Mr. Greco) About how many people would say that? A. I don't know. s s s s Q. Could have been just one or two? A. No, it would be more than that. Q. Maybe five or ten? A. Yes, sir. Pressed for more precise quotation of what the appli- cants had said, Moravchik admitted clearly none said anything about "whether they wanted the Union to represent them." Moravchik also candidly conceded the conclusion he reached at the time-that the applicants, at least those that said anything-did not like unions, was purely his , "general opinion." If the complaint had so alleged it might well be that the testimony of LaBahn about the hiring interviews would support a finding that the Respondent illegally coerced the new employees within the meaning of Section 8(axl) of the Act. Certainly ORION CORPORATION 641 whatever any of them may have said about picketing lines was drawn from then by the not so subtle interrogation of their perspective employers. In any event, they said nothing about whether they wished the Union to bargain for them. It follows that as to those persons at work in the spring and summer of 1972, the Respondent has no basis at all on which to predicate its asserted reasonable doubt. Moravchik testified twice at the hearing, first as an adverse witness called by the General Counsel, and again, after a long unavoidable recess occasioned by unrelated factors, when called by the Respondent in defense. He spoke in detail of individual, named employees, and explicated why he believed this one or that one did not wish to be represented by the Union any more. What he said as a witness on these matters becomes what he passed on to the president, who, it will be recalled, said that he withdrew recognition strictly and exclusively on the basis of what Moravchik reported to him. Fair appraisal of what Moravchik considered objective criteria for concluding the Union had lost majority standing in the spring of 1972, requires appreciation at the outset of what the Company agents-the manager, the president, and the lawyer-had been doing from first to last throughout the certification year in furtherence of their ever-present concern with the employees' attitude towards collective bargaining. Moravchik said it was a "shock" when he learned of the Unions' organization campaign and of employees agreeing to favor the Union. He added that in consequence he and Groth, another supervisor, soon started to keep notes, mental and written, of the Union's representative strength. He also reported what he heard, and his thinking, to LaBahn from time-to-time. Asked how long this had been going on, Moravchik answered: "We had been doing that all the while . . . I think-since about 1971 on. Q. As soon as the union got in? A. Yes . . . . Q. Well, what did you check in the beginning? The Witness: As to who we in our opinion was for union and who was against the union and who was just in between." Moravch- ik did the same thing with his assistant. "He [Groth ] was my assistant, and he and I would do the same thing many times . . . . Q. Tell me, when did you start doing that with him? A. From the day one. Q. April 1, 1971, when the Union was certified? A. Yes. He and I would sit down and make a list of who we thought was happy with the company and who was unhappy or whatever you want to call it." Moravchik used to attend the bargaining sessions with Mallien. He quoted the lawyer as follows: "He would ask me about how things were going on the floor, how the mood of the people was, and whether they were-they were antagonistic or something like that." LaBahn started by saying he and Moravchik went over a list of employees for this purpose "perhaps every 2 months . .. perhaps early spring of 1972." At one point he said he never told the lawyer of his doubts before July 1972. The witness then switched to say he did "Sometime in the spring of 1972," and that when he did so, Mallien "said 2 Mallien was simply not a credible witness As early as June 8 , in a letter to the Union, he wrote "we see no point in further meeting " Asked did he know "during the course of the negotiations" that the Company was keeping a running tally of the Union's representative strength, he answered he was "unaware of that " Asked did LaBahn respond to him in any way after his January legal advice about how employees withdraw from unions, keep an ear open and keep me informed as to what you think the majority status of the Union is . . . Q. And you in turn told that to Mr. Moravchik, didn't you? A. Yes." Then came more from LaBahn's testimony: Early in 1972 he told Mallien employee Fromm had resigned his union membership; he told Mallien "in the spring or winter of 1972" an employee named Uselding was reported as disaffecting"; "Mr. Mallien was made aware of deminish- ing union strength prior to that . . . . All during the spring of 1972 whenever a rumor reached me that someone had resigned or wasn't paying dues." "Q. And what did Mr. Mallien say? A. Well, he just said stay close to what's happening among your employees." All this before expiration of the certification year. We come to Mallien's testimony. He denied nothing of what Moravchik and LaBahn put in his mouth. The implied burden of his story was to remove himself from the picture, so far as any decision to question the Union's majority at any time; he said all he did was the negotiating. But if all the record testimony be considered, the truth is otherwise. One fact, brought to light when he was on the witness stand, suffices to tie him to the activities of Moravchik and LaBahn, unquestionably aimed at getting this union out of the plant. Early in March he had a lawyer in his office research Board law on the question of withdrawing recognition from a certified union. He sent the results of his research, no doubt accompanied by professional recommendations, in writing to LaBahn. At first equivocating about how he happened to do this during the very period when he was meeting with the union agents and ostensibly bargaining in good faith, he gave the following explanation of why he forwarded this material to his client. "The latter part of July, sometime in there, subsequent to-oh, about a month or so subsequent to the expiration of the certification year, the client was getting concerned about having to continue to pay for negotiation meetings and wanted to know if there wasn't some way to end it all." [sic-the entire quotation! ] LaBahn was not in the hearing room while Mallien testified. Called later by the Company, LeBahn denied flatly ever receiving anything from the lawyer in writing on the subject of withdrawal of recognition. Obviously neither man was telling the truth from the witness stand. With this, there emerges also a special significance in the further fact that on January 25, 1972, Mallien wrote another letter to LaBahn "regarding resignation of union members." He explained this one by saying: ". . . the same as I do for any other client. If I come across to any other information that might be pertinent to them or find useful or helpful, I make a copy and send it to them." In the context of the total story unfolded, I do not believe Mallien. I am convinced he was party to an overall and persistent plan by the Respondent to frustrate the expressed desires of its employees to bargain collectively through their Union "from the day one." 2 It is in the light of this background as a significant he gave a flat "No" How does one reconcile this with LaBahn's very detailed testimony of keeping the lawyer informed in all details about continuing reports of individual employee attitudes towards the Union from January right through into July and August9 Between the lawyer and his client, the two cast a grave shadow upon the entire defense. it was not the first time Mallien stepped over the line in this field of law Compare, John (Continued) 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picture of management's frame of mind throughout the bargaining that we come to Moravchik's testimony about what he heard and why he believed what he believed. At the time of the Board election in 1971 there were 33 employees in the bargaining unit; in early August 1972, on the 4th as well as the 11th, there were 43. As part of its answer to the complaint, the Respondent attached a letter it wrote to the Union on August 11, formally withdrawing recognition. Actually the Company raised the question of majority and effectively rejected the Union as exclusive agent long before that date. Be that as it may, Moravchik's testimony went to what he thought, and why, in early August. In his first appearance as a witness on February 22, 1973, he referred to 24 employees by name; when he returned to the stand in defense on May 1, he spoke about 26. There are material changes in his testimony between the two dates; in the interval, it may be assumed, his first testimony had been studied. For example, asked had "any employ- ees" told him they did not wish to be represented by the Union, he clearly answered "no," this after speaking of Zirtzlaff, Mentzel, and Melk, his son-in-law. In his later appearance Moravchik added that both Mentzel and Melk had told him they "did not want to be represented." The lawyer who studied Board decisions for his client knew, of course, that there is a fatal difference between an employee discontinuing his dues or even outright membership in the union, and being unwilling to gain by its bargaining status. There were other changes in Moravchik's testimony. The first time he said he believed employee Clark had rejected the Union; the second time around he said that man remained prounion. In any event, considering his total story, he said of no less than 13 persons that his conclusion was entirely a matter of opinion, that he had heard nothing from these employees themselves, or even indirectly by hearsay about them. Vasilauskas: "It is an opinion of mine based on the man's personality." Hesprich: "He never told me any- thing. . . . Going on opinion now, my opinion." Sinad.• "He never said anything. He doesn't talk very much .. . He is a loner, loner's don't belong in Unions . . . It's my opinion. . . . Based on his personality." I just feel he's a man who wouldn't. That's all." Sedlacek: "... he has a little business of his own . . . it is strictly an opinion of how the man thinks of what you have to do in order to stay in business. . . . He didn't say anything. It's an opinion." Clark• "Nothing that would indicate it. It's just an opinion I have . . . . Just based on his work and his attitude towards the company." Disch: "It was his expression that he did not want to be a member of anything. He wanted to negotiate everything for himself." Schreurs: "I believe that he was disenchanted with the-with being represented the way he was. . . . Never spoke to me directly." Christian- son. "This is an opinion also of mine formed from knowing people." Carkle. ". . . was an elderly employee and-I felt that he was considerably-kept considerably to himself and was not about to belong to any group. I just felt-that was an opinion of mine." Whether by accident of design, in his testimony about the following employees Morvchik exposed the fact that in his opinion anyone who wishes to advance with this Company must of necessity be antiunion minded. Osheim: "Osheim was an opinion based on the fact that he was going to school . . . . He was interested in how he could better himself with our company." Rosenbaum: "He didn't tell me he didn't belong to the union. It's an opinion... . Based on . . . conversation that we have been talking about his job and how he liked it . . . he was satisfied with his . . . with the type of job he was assigned to." Maciejewski: ". . . I thought he had good potentials. He was a good employee . . . he was a relatively good company man and the kind that would be with this company for a long time." Gelhar: ". . . an opinion of mine based on his desire to become a part of management .... He was going to do anything that he could to become a better employee and further himself with the company." Fromm is an employee who on February 17, 1972, advised the Union in writing that he was resigning. Moravchik testified, without contradiction , that Fromm told him about it at the time. There is no reason for not believing this. With Fromm, Moravchik joined four others-D. Harmon, W. Harmon, Bode, and Kiehnau -by saying Fromm told him the four were "going to get out like he did." He admitted he himself heard nothing directly from any of these. Fromm was not produced to support the manager's pure hearsay testimony. In the light of the character of Moravchik's total testimony, I cannot rely on his testimony concerning these employees, to say nothing of the fact he conceded he heard nothing about their not wanting the Union to bargain for them as free riders, i.e., not paying dues as matters progressed. In an apparent attempt to bolster Moravchik's testimony, the Respondent offered into evidence letters from all four of these employees resigning from the Union. One is dated August 10, one August H, and two August 14 . But this was long after the Respondent's decision to withdraw recognition had been made ; in fact there is documentary proof-from Lawyer Mallien's files-that on both August 10 and August 3 he told Union Agent Quast the Company seriously doubted the Union's majority status. ". . . we're going through an exercise in futility . . . there's a substantial doubt as to whether the Union at this point represents a majority of the people ." The four letters of resignation therefore could not have been a factor-or an objective criteria-in the Respondent's asserted good-faith doubt. Indeed, Moravchik admitted he had never seen such documents; they were produced at the hearing from the Union's files pursuant to the Respondent's subpena, long after the events. By this time, of course, the unfair labor practice had been completed , and the employees' reaction to it could hardly serve retroactively to support the defense now. Three other employees named by Moravchik must be said to fall within the hearsay category. Uselding: "What did you base your opinion on with respect to him? A: His statement . . . That he didn't belong-I don't know how it came out. Q: Who did he say it to? A: To AlMentzel .. . Oster Mfg Co , 173 NLRB 503, 508 ORION CORPORATION 643 Q: He didn't say he no longer wanted the Union to represent him? A: If he said it, I never heard it." Hemplemen ". . . hearsay from another person... Q: You never spoke to Mr. Hemplemen? A: No. Q: Who was the hearsay you heard it from? A: Uselding made it to Mentzel at the same time." Clearly Moravchik's state of mind throughout, like that of management generally from first to last, was to seek out antiunion expressions from among the employees. It is to be expected that when management's representatives look for a certain point of view, in fact hope to discover it, they will think they hear it from others when in fact it is not there. An excellent example is his testimony about an employee named Baldwin. In the beginning of his story he placed Baldwin among those who told him "they weren't going to join the Union." Later, after going through one name after another, Moravchik said "Baldwin . . . never told me anything. That's an opinion of mine .... Based on his background, his feelings towards the company .. . he has been more or less self-employed or in conjunction with his brother. I think from business point of view he'd recognize that . . . I never talked to him about it." As to three others Moravchik's testimony is that he based his opinion on what he knew about them as of the time of the 1971 election or earlier. Zirtzlaff.. ". . . he came to me on the onset and said if he had to belong, he would not be able to work for me." Pennington: "That he thought the Company that small didn't need anything but personal negotiations . . . . That was early in `71: Labenstein: "He was a foreman at one time and dropped back into a worker at his own request. . . . What did he tell me?.... He would never belong to no union . . . . Q: When? A: Well, originally, when the Union first came in." Commenting generally on his mental process with respect to this concern as to the Union's strength, at one point Moravchik said: "I think ever since the Union has been there. I just had an opinion of who I thought would join and who I thought wouldn't." Whatever the manager may have heard, or believed, at the time of the organizational campaign, or when the election took place, by no stretch of the imagination can it serve as objective criterion to prove that long after the Union was certified, the employees did not wish to bargain collectively. Reference has already been made to Mentzel and Melk. During his first appearance as a witness Moravchik testified his son-in-law, Melk, told him he would not join but never said he did not wish to be represented by the Union, and that Mentzel also said "he wasn't going to join," but that he never asked the man whether he wished to be represented. When testifying a second time Moravch- ik added that both these men also told him they did not want to be represented. I do not believe his second version. As to a third man, Newberry, the manager said he heard the employees say he "was getting out." On April 28, 1972, Newberry resigned from the Union in writing, asking that his name be removed from the mailing list. Like other letters sent to the Union then or later, Moravchik never saw this one either until after it was all over. In addition to all the foregoing, Moravchik spoke of McBride and Mathews. Like Fromm, who resigned from the Union on February 17, these two also sent written resignations to the Union early in the year, McBride on February 7 and Mathews on February 27. As to each of these Moravchik said they personally spoke to him. He made no claim to have seen these letters of resignation either ; he said only these three told him they were leaving, or had quit the Union. It is at this point that two other aspects of this case must be considered. C. Union Dues and the "Bargaining" Sessions The Union saw fit to collect dues from the employees of this Company even before achieving for them a signed contract, and a number of them paid . They were not required to pay, or to join as members, for there never was a contract and the Union did not condition its duty to represent the entire complement pursuant to the certifica- tion upon their paying anything at all. Dues payments were recorded, of course, and in a sense this could be called membership in the Union, as distinguished from a vote in favor of its acting as exclusive collective -bargaining agent. There came a time when some employees balked at continuing to pay dues when the Union was getting nowhere in its efforts to agree upon a contract with the Company. As meeting after meeting produced virtually nothing, understandably employees started to feel they might be wasting their money. Besides, they knew that anyone who chose not to pay dues would enjoy the same contract benefits in the end, if anything were ever accomplished, as did those who did pay. And whenever anyone discontinued his dues, his card record was marked "lapsed." The Union even conceded at the hearing that by August 1972 only about 16 or 17 employees were still paying, or were recorded as "members." The Respondent's agents had no insight into the current number at any time, for it never saw these records until they were produced at the hearing pursuant to subpena. All the Company knew was what Moravchik testified to at the hearing, as detailed above. Between May 1971 and the following April, Mallien, doing all the talking for the Company, met with two union representatives to discuss contract proposals and counter- proposals, 25 times, a number of hours on each occasion. On May 19, 1972, they had a final meeting with a Federal conciliator. He asked each side to jot down what the remaining issues might be, believing, no doubt , that by this time there could not be much left to resolve. The Union gave him a list of 23 items , each referring to a contract proposal ; 12 of these were marked "major," meaning that those matters were of serious import, and still required much discussion. The Company gave the conciliator two written lists of outstanding issues; one referred to the Union's proposals, and of the 32 items set out there, noted that 29 of them were still "open." The second list noted 29 company proposals, with only 11 marked "ok" and the rest "open." The only contract clause which Mallien marked as having been agreed to by both parties was Report Pay; all the rest were marked "open," on either the union proposal list or on that of the Company. The parties had not even touched upon the subject of wages as yet, and they never met again. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis and Conclusion I find that the Respondent failed to bargain in good faith, that it had no reasonable basis for believing a majority of the employees no longer wished to be represented by the Union, that it questioned majority in bad faith, that it unlawfully withdrew recognition from the Union, and that by the totality of its conduct it refused to bargain with the Union in violation of Section 8(a)(5) of the Act. An employer who approaches the bargaining table with an honest intent of trying to come to terms with the chosen representative of its employees, as the statute requires, does not simultaneously have its principal officer and supervi- sors keep a watchful eye upon the employees with the hope of finding evidence of a change of heart among them-as did all three of them in this case-LaBahn, Moravchik, and Groth. Moravchik started "from the day one" to keep a tally to offset the balloting results leading to the Union's certification. He and LaBahn continued to match notes every month or two, keeping "an ear to the ground," as the lawyer advised. And as early as January 1972 the lawyer sent written advice to LaBahn on the question of how employees may indicate rejection of a union as their bargaining agent. How did this become "useful or helpful" to the client, as the lawyer explained at the hearing, except to nourish a preconceived plan to put a stop to union activities altogether? Can the external format of collective bargaining apace with such activities ever mean anything but a cover for pervasive bad faith? In total disregard of the law which says that during the first 12 months after certification the Union's majority status must be presumed to hold fast, the president asked his lawyer in the beginning of March to find a way "to end it all." LaBahn was the principal, and that his purpose throughout was to make a mockery of the negotiations could not be clearer. And the lawyer, always cooperative with the objective, searched the law to find means for discontinuing all bargaining with a certified union. This is the man who during those very days was meeting and talking for hours with union agents about contract proposals and counterproposals. He had one eye on the union agents, and the other on their principals, waiting for the moment when a claim could be made that the agency authorization had been withdrawn by the principals. If this be honest collective bargaining, the phrase "good faith" must be deleted from Section 8(d) of the statute. In his brief, counsel for the Respondent stresses certain Board precedents which speak of the absence of "inde- pendent unfair labor practices" by an employer who questions the continued validity of an established majority status . I deem those precedents inapposite to the case at bar. While it is true the Respondent here is not found to have committed out-and-out violations of the statute aside from the refusal to bargain, the very clear activities aimed at ferretting out-if not creating-antiunion evidence throughout the certification year, proved by the Compa- ny's own witnesses, destroys its assertion of good faith 3 Terre!! Machine Company, supra, " a showing as to employee membership in, or actual financial support of , an incumbent union is not the equivalent of establishing the number of employees who continue to quite as much as would directly coercive statements in violation of Section 8(a)(l). Of all the many provisions normally found in collective- bargaining contracts, not one of substance was agreed upon throughout the 25 meetings that took place between the parties. Mr. Walter Davis, who acted as trial counsel for the Respondent, correctly argues that no employer is required by law to make any concession in the bargaining process, and that if in the end he holds fast to any and all items, it follows logically that the Union was equally unyielding as to each of them. He calls this hard bargaining. If other factors reflected on this record and bearing upon the negotiation be ignored, if the annotated proposals shuffled back and forth be taken out of context and evaluated in isolation, a certain picture would emerge. But Mr. Davis is now saddled with all the other things that happened simultaneously with the meetings, all directly related to the so-called bargaining and pointing to a totally different conclusion. He was not a party to the events; in fact there is indication that the evidence most destructive of the defense came as a surprise to him, as indeed it was to the General Counsel too. Hard bargaining in this case not only assured the passage of 12 months from the date of certification, but also gave promise of growing reluctance by the employees towards continuing to pay union dues. It is the extent of the Company's adamancy-about as extraordinary as is ever seen-that, coupled with the clear proof of continuing search for antiunion sentiment and contemporaneous planning of a legal defense in anticipation of the Labor Board complaint that was sure to follow, demands an ultimate finding of bad faith, both in the discussions that took place and in the final rejection of the Union. The object of frustrating the Union was won, for some employees did stop paying dues in consequence. But discontinuance of dues is not basis, or objective criteria, for inferring rejection of collective-bargaining in the minds of the employees.3 And even that technique is shown to have failed, for when, in their effort to continue collection of necessary expenses from the employees, the union officers sarcastically invited some of them to waive contract benefits which the Union might eventually win, none signed. Even in the face of the Company's delaying tactics, they never wavered in their willingness to have the Union speak for them. That the refusal to bargain in this case was unlawful is so clear that no purpose would be served by reporting the evidentiary details said to support collateral and cumula- tive allegations. The complaint says that on August 11 the Company also refused the Union's request for a list of employee names and their wage rates, that in September it made unilateral changes in health benefits and life insurance, and that in October it increased holiday and vacation benefits without consulting the Union. The decision to withdraw recognition from the Union was made as early as July, as the President himself admitted, and perhaps even June. This meant the Company would have nothing to do with the Union thereafter, including, of desire representation by that union " See also N.L.R.B. v Master Touch Dental Laboratories, Inc, 405 F 2d 80 (C A 2, 1968). ORION CORPORATION 645 course, any thought of consulting it in any way on how to run the business or giving it any information at all. The whole includes the sum of its parts. If the Respondent had a right to exclude the Union entirely from its affairs, of necessity anything it thereafter did independently it would also have a right to do. If it was wrong in rejecting the spokesmen of its employees, by like reasoning every unilateral change it later made in conditions of employ- ment was part and parcel of its continuing refusal to bargain, and equally unlawful. Restated: the order to bargain which must issue is as broad as the entire spectrum of the Act. If the purpose of the additional allegations was to obtain specific directions to the Respondent to cease and desist from these particular unilateral activities, it was a superfluous gesture, for clearly, albeit implicitly, the broad order extends to every action of the type anyway. On June 5, 1972, shortly after the completely abortive meeting with the Federal conciliator, the Union sent to the Company a request for "a finalized proposal in the form of a complete contract" "covering the areas in which we have been negotiating since May 5, 1971." Malien answered 3 days later saying he could not do so, that the attempt would be an "exercise in futility," and closing with "we see no point in further meetings." There is not, and there could not be, any claim that full agreement had been reached and that its failure to reduce the accord to writing amounted to a refusal by the Respondent to sign a fully negotiated contract. I do not understand how, in view of the fact no agreement had been reached on any substantive matters, the Respondent's failure to prepare a full contract at this point could be viewed, as the complaint apparently alleges, either as an independent unfair labor practice, or as cumulative proof of a refusal to bargain. The incident does no more than illustrate the complete frustration which the Respondent's overall strategy had wrought in the Union's ranks. IV. THE REMEDY The Respondent having refused to bargain with the Union, the first element of the remedy must be that it be ordered to bargain now, and to bargain in good faith. This being a Board certification case, proper remedy also requires that the certification year be deemed as commenc- ing anew on the day the Respondent begins to bargain in good faith. This is also a case in which the Union's request for reimbursement from the employer for expenses it incurred in cjequence of the Respondent's calculated unfair labor practices, is persuasive. The refusal to bargain in this instance was not occasioned by any rersonable disagreement as to law, it did not flow from any substantial or ostensibly defensible position. Rather, the record as a whole makes very clear the Respondent was determined to utilize the so-called bargaining sessions as a device to await the day when its original intent of removing the Union from its plant could be successfully achieved. In the circumstances, its entire course of conduct can fairly be called premeditated, pervasive and outrageous flouting of the very basic principles of the law. Justice therefore requires that the Respondent be ordered to reimburse the Union for all expenses incurred in connection with this litigation, including reasonable counsel fees, witnesses fees, transcript and record costs, printing cost (in the event of further litigation), travel expenses, and per diem of its agents and representatives. This shall include the expenses incurred by the Union's professional representative in attending the sham bargaining sessions with the lawyer Mallien.4 In view of the extent and character of the unfair labor practices committed, the Respondent must also be ordered from in any other manner restraining or coercing its employees in their statutory right to engage in collective bargaining. V. THE EFFECT OF THE UNIAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade , traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. All production and maintenance employees of the Respondent at its Grafton, Wisconsin, plant, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since April 1, 1971, the Union has been and now is, the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing, on August 11, 1972, and thereafter, to bargain collectively with District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 4. 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 foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS The Respondent, Orion Corporation, Grafton, Wiscon- sin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 4 See Tudee Products, Inc, 194 NLRB 1234; Food Store Employees Union Local 347, Amalgamated Meat Cutters [Heck's Inc], 476 F 2d 546, (C.A.D.C., 1973) 5 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. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain in good faith upon request with the above-named Union. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self- organization , to form labor organizations, to join or assist District No. 10, International Association of Machinists and Aerospace Workers , AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the unit described above, and, if an understanding is reached , embody it in a signed agreement. (b) Reimburse the Union for costs and expenses incurred in connection with this entire litigation in the manner described in the section above entitled, "The Remedy." (c) Post at its plant in Grafton, Wisconsin, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by its representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. 6 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board." Order of the National Labor Relations Board" shall be changed to read