Condon Transport, Inc.

CONDON TRANSPORT, INC. 297 Condon Transport, Inc. and General Teamsters, Warehouse and Dairy Employees Union Local 126, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 30-CA-2188 and 30-CA-2405 June 10, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 25, 1974, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Respondent filed a brief in opposition thereto as well as cross- exceptions and a supporting brief, and the Charging Party filed a brief in reply to Respondent's opposi- tion and in opposition to the cross-exceptions. 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 attached Decision in light of the exceptions 1 and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recom- mended 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 Respondent, Condon Transport, Inc., Ripon, Wisconsin, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I The General Counsel's exceptions include a request that the Order provide that Respondent pay to the Board and the Union the costs and expenses incurred by each in the investigation, preparation, presentation, and conduct of this case as provided in Tiidee Products, Inc., 194 NLRB 1234. We do not find sufficient evidence to support a finding that Respondent's defenses constituted frivolous litigation within the meaning of Tiidee Products and, accordingly, deny the General Counsel's request. Thus, having denied the General Counsel 's request, we find Respondent's exception to be moot. Members Fanning and Jenkins do not rely on the Administrative Law Judge's dictum concerning Telautograph Corporation, 199 NLRB 892. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was heard in Green Lake, Wisconsin, on October 16 and 17, and December 11 and 12, 1973, upon charges filed on December 21, 1972, and July 18, 1973, and a consolidated complaint which issued on August 27, 1973, alleging that Respondent independently violated Section 8(a)(1) of the Act by unlawfully assisting employees in the filing of a decertification petition, and Section 8(a)(5) of the Act by withdrawing recognition and refusing, since October 10, 1972, to bargain with the Union as majority representative of employees in the appropriate bargaining unit. Respon- dent filed an answer, admitting certain facts, but denying the commission of any unfair labor practices. After the hearing, the General Counsel, Charging Party, and Respondent filed briefs. Upon the entire record, including consideration of the briefs, and my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, Condon Transport, Inc., is a Wisconsin corporation engaged in the transportation of petroleum products by motor truck from its place of business in Ripon, Wisconsin. During the calendar year preceding issuance of the consolidated complaint, a representative period, Respondent in the course and conduct of said operations derived revenues in excess of $50,000 for services performed for Condon Oil Co., a Wisconsin corporation, located in Ripon, Wisconsin. Condon Oil Co., during said calendar year, purchased goods valued in excess of $50,000 from points located directly outside the State of Wisconsin, and had gross revenues exceeding $500,000. The complaint alleges, the answer admits, and I find that the Respondent is and, at all times material , has been an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the-Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that General Teamsters, Warehouse and Dairy Employees Union Local 126, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The ultimate issue in this case is whether Respondent, following recognition of the Union, acted lawfully in subsequently withdrawing recognition and refusing to bargain further. Respondent argues that said action was perfectly legitimate in view of the decertification activities of unit employees and a good-faith doubt that the Union continued to represent a majority. The General Counsel, with concurrence of the Charging Party, asserts that Respondent was not free to assert such a defense, in view of its unlawful assistance of the decertification activity, as confirmed by background evidence, which, as the argu- 211 NLRB No. 37 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment goes, shows that Respondent, at all times, was guilty of bad faith, and intent on undermining the Union's representative status . Finally, Respondent argues that, even if the General Counsel were sustained as to the above matters, any bargaining order should be withheld pursuant to the policy set forth by the Board in Laura Modes Company, 144 NLRB 1592. B. Bargaining History The duty to bargain with the Union first inured to Respondent through a private settlement of an earlier complaint issued by the Regional Director in Case 30-.CA-1862. The settlement was effected on May 10, 1972, and consisted of an agreement whereby the parties would be bound by various bargaining agreements and Teamster-sponsored fringe benefit programs. The settle- ment terms, in accordance with Section 8(d) of the Act, plainly contemplated the parties execution of the govern- ing documents. The Respondent's assistance to employee decertification activity, which is the subject of the instant complaint, allegedly began on May 11, 1972, the day after an administrative law judge accepted the above agreement adjusting the complaint in the earlier case. C. Background Condon Transport, Inc., is affiliated with and exclusively engaged in the cartage of bulk petroleum products for Condon Oil Company, which, in turn, is engaged in the wholesale distribution and sale of Texaco products. Prior to January 10, 1972, Condon Oil utilized independent common carriers for over-the-road transport of its prod- ucts, principally Bulk Transport Company. Bulk Transport Company was under contract with the Charging Union. Two of Bulk's drivers, Joseph M. Davis and Roy Voss, were primarily engaged in servicing Bulk's Condon Oil account. Some time in late 1970, Condon Oil began to consider the possibility of purchasing equipment and performing its own over-the-road hauling. In the spring of 1971, B. Kent Bauman, a vice president of Condon Oil Company, began discussions with Voss and Davis as to their possible employment with the new trucking opera- tion. Bauman also sought the advice of Davis and Voss as to their preferences for equipment and, ultimately, in ordering same, accepted some of their recommendations. As between Bauman, Davis, and Voss, there was no question that Davis and Voss would be hired as drivers when the new trucking operation commenced. On January 10, 1972, Condon Transport formally began operations. Davis and Voss were the only two drivers in its employ at that time. Previous to that date, both had discussed with Bauman the terms under which they would be employed . Davis supplied Bauman with a copy of the collective-bargaining agreement covering them at Bulk Transport. Bauman assured them that, though he intended to compensate them on a percentage-of-volume-handled basis, rather than the hourly basis in effect at Bulk, both I Prior to this, Davis and Voss had been working a substantial number of overtime hours. 2 Prior to January 17, Voss and Davis were the only drivers in Respondent's employ. A third driver, Richard Dykstra, was hired on that would take home at least the equivalent of their prior earnings. There was also discussion as to whether the drivers would continue to be covered by the pension and health and welfare plans which were in effect at Bulk under auspices of the latter's bargaining agreement with the Charging Union. Although both men considered continued coverage under these programs as extremely important, Bauman did not provide conclusive assurances in this regard. Davis and Voss, in December 1971, contacted Donald F. Wetzel, the Union's secretary-treasurer, urging him to contact Bauman and consult him in their behalf. Wetzel, since this was prior to actual employment of the two drivers, advised them that, upon their execution of membership applications, he would take action when the time became appropriate. As indicated on January 10, 1972, Davis and Voss began their employment with Respondent. That same day, both executed membership applications and representation authorizations for Wetzel. On January 12, 1972, Wetzel formally notified Respondent that the Union represented the drivers and demanded recognition . The demand letter further requested that Bauman appear at the Union's office in Fond du Lac, Wisconsin, either on January 17, 18, or 19, 1972. Bauman, pursuant to this request, appeared at union headquarters on January 19, 1972. At that time, he expressed an interest in participating in the Union's pension and welfare programs, but apparently was uncertain as to his interest in being obligated to the Union in other respects. At this meeting, Wetzel and Bauman discussed the latter's desire for a percentage method of compensation-such a system of compensation differed from either the hourly or mileage methods usually endorsed by the Union, but Wetzel was open to such possibility. The meeting ended with Wetzel giving Bauman copies of various agreements necessary to operate as a Teamsters shop, and Bauman advising that he would get back in touch after trying to further research the percentage formula he planned to adopt. When Wetzel subsequently heard nothing from Bauman, he sent a letter to Bauman, acknowledging the initial meeting, and requesting another. In the meantime, Davis and Voss had become somewhat concerned at certain of Bauman's activities. Both credibly testified that, shortly after the Union's demand for recognition, Bauman repeatedly questioned them as to "who signed the Union cards." Voss further credibly testified that, the day after Bauman's meeting with Wetzel, Bauman told him "There would be no need for Teamsters because we would be paid as good or better than what we were getting when we worked for Bulk Transport." Davis also credibly testified that in late January 1972 Bauman told him "He could not see paying the big overtime that the Union would demand, and that if Roy [Voss ] and I [Davis] kept pushing the Union, that he would have to go to maybe 40 hours and maybe it would be a swing shift." ' Fearing that Bauman was intent upon hiring new employees to pack the unit,2 Davis and Voss reported this possibility to Wetzel. As a date. The suspicion of Voss and Davis as to possible packing of the unit was probably based upon Bauman's antiunion statements set forth above, as well as their having seen Bauman's notation on certain employment applications taken in the winter of 1971 to the effect that certain applicants "Dislike Unions." CONDON TRANSPORT, INC. 299 result, Wetzel, on February 2, 1972, filed a representation petition. Shortly after the filing of said petition, Bauman orally agreed with a Board agent to execute a stipulation upon consent election agreement. However, when the Regional Office submitted such a document for Bauman's execution, he failed to respond. Following successive inquiries by the Region, Bauman on February 10, 1972, finally indicated he would decline to sign on the stated ground that an election ought to be deferred to afford the opportunity to vote to an additional driver that Respondent planned to hire. In the interim, on February 5, 1972, Bauman telephoned Wetzel, and when Wetzel could not be reached, Bauman requested his secretary to forward copies of the pension plan and health and welfare programs, which in due course were forwarded to Bauman. On or about February 7, Bauman approached the drivers with proposals on a percentage that would constitute their basis for compensation. Davis and Voss refused to discuss this with Bauman, referring him to their bargaining representative. On February 16, 1972, Bauman hired Preuss, a fourth driver, who was added to the existing unit of Dykstra, Davis, and Voss. Davis and Voss contacted Wetzel, reporting that the Company was cutting runs and hiring additional drivers. After consulting with Wetzel, they tentatively decided to strike. The strike commenced on February 22, 1972, and unfair labor practice charges in Case 30-CA-1862 were filed that same day. On February 28 and 29, Wetzel by telephone and telegram contacted Bauman, and indicated that Voss and Davis would return to work. Both were reinstated on March 6, 1972. On April 7, 1972, the Regional Director issued a complaint in Case 30-CA-1862, alleging that Respondent independently violated Section 8(a)(1) by threatening employees that no union member would ever drive Respondent's trucks, by coercive interrogation, threatening to change work hours if employees selected a union, threatening to fight to keep a union from representing employees, and by bargaining individually with employees. Said complaint further alleged that Respondent violated Section 8(a)(3) of the Act by according preferential consideration to applicants who signified a dislike of unions, by assigning Davis and Voss less desirable work, and by laying off Davis. Finally, the complaint alleged that Respondent violated Section 8(a)(5) by granting, then withdrawing, recognition of the Union, and, in any event, that a bargaining order would be warranted in view of the 3 At the original hearing in this proceeding, I denied, on objection of Respondent, the General Counsel the opportunity to litigate the allegations in Case 30-CA-1862, as background . That complaint had been withdrawn on the basis of a private settlement agreement, which the Regional Director had no authority to set aside in issuing the instant complaint. By telegraphic order, dated November 2, 1973, the Board, pursuant to the General Counsel's appeal, reversed my ruling and remanded for hearing with respect to "unlawful interrogation of prospective new employees and certain other activities designed to destroy union status ...: At a resumption of the hearing on December I I and 12, 1973, these additional matters were litigated . On the basis thereof, I find that Respondent, through Bauman, did engage in the acts of interrogation and revealed his antiunion sentiment through coercive expressions set forth in the above text . Further, the background evidence does contribute to my conclusion that Bauman was pervasive nature of the other violations of Section 8(a)(1) and (3).3 A hearing on said complaint opened on May 9. On May 10, the hearing was closed in view of the private settlement reached by the parties with respect to the issues raised therein. As will be seen in greater detail, infra, the unfair labor practices, which are the subject of the instant complaint, allegedly commenced immediately after settlement of Case 30-CA-1862. However, a brief chronology of the ensuing events may prove helpful. Respondent did not immediately execute the supplemen- tal agreement or rider that formed the predicate of the above settlement. However, after several efforts by the Union to obtain execution thereof, Respondent finally did so on September 12, 1972. That supplemental agreement, by its terms, was sched- uled to expire on December 31, 1972. On October 10, 1972, the Union notified Respondent of its intention to terminate said agreement, and sought information as to a possible meeting date for negotiation of a new contract .4 Thereaf- ter, a decertification petition was filed with respect to Respondent's drivers on October 30, 1972. No response to the Union's request for renegotiation having been received, the Union again wrote the Company on January 11, 1973, forwarding a contract proposal and requesting a meeting date. On January 16, 1973, Bauman wrote the Union, stating: We cannot meet or negotiate while a question of representation is pending. On January 23, 1973, the Union again requested that Respondent bargain. On January 24, 1973, the instant complaint issued. On January 30, 1973, Respondent informed the Union that: Because Condon Transport, Inc. has a good faith doubt of the majority status of your Union and there has been no adjudication that the petition for decertifi- cation was in fact and in law illegally asserted, it cannot agree to your demand to make arrangements for a date, time and place to negotiate a new agreement covering its employees represented by your Union. In the meantime, Respondent, upon expiration of the supplemental agreement, on December 31, 1972, unilater- ally ceased contributing to the Union's health, welfare, and pension programs. On February 1, 1973, Respondent unilaterally put into effect a private health insurance plan. not above interference with Sec. 7 rights of employees to any extent necessary to accomplish his own objectives with respect to the ultimate labor costs of Respondent's operations . On the other hand, Case 30-CA-1862 also alleged that Respondent engaged in certain discriminato- ry actions with respect to applicants, as well as Davis and Voss. However, the evidence adduced, in my opinion, does not substantiate these allegations. Nonetheless, since the reasons for that conclusion would require elaborate discussion, and the issues presented thereby are plainly cumula- tive, it would be inappropriate to render a detailed accounting of these academic matters at the expense of further delays in issuance of the remedy called for by the record made on the instant complaint. 4 There is no merit in Respondent's contention that this letter was not a proper demand for a resumption of negotiations. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings Lending some support to Respondent's position that the withdrawal of recognition in this case was perfectly legitimate, is the Board's decision in Telautograph Corpora- tion,5 which, in effect, held that a decertification petition, supported by an adequate showing of interest, which raises a real question concerning representations may alone provide a defense to an employer's refusal to participate in further contract negotiations . However, in National Cash Register Company,7 the Board distinguished Telautograph, supra, by holding that a decertification petition furnished no defense to a refusal to bargain where the employer had inspired the filing of such a petition. A parallel to that proposition is the long-established Board policy which precludes an employer from asserting a good-faith doubt of majority where the employer has engaged in misconduct tending to dissipate the union's majority and thereby to induce said loss of majority .8 Turning to the evidence adduced in support of the General Counsel's cause, it is conceded fact on this record that Respondent (1) initially furnished employees informa- tion as to how the decertification process could be invoked, (2) obtained and supplied the decertification petition forms for employees, (3) supplied employees information re- quired by the petition forms, and (4) advised employees as to the open period dates within which a timely petition could be filed. The General Counsel is not off the mark in observing that virtually every act, other than the mailing of the final petition, was the work of the Respondent .9 Nonetheless, Respondent argues that there was nothing illegal in this course of conduct since, in each instance, the assistance provided was on request of employees. Respon- dent also observes that it never suggested to employess that they get rid of the Union, and, further, that Respondent, when responsive to employee requests, repeatedly cau- tioned that it could not help the employees in any way. The only witnesses called to relate the circumstances surrounding the Respondent's involvement with the decertification activity were Bauman, Reiser,10 and em- ployee Dickerson, a cosigner of the decertification petition. Their accounts are in essential respects set forth below. Those of Bauman and Reiser show a substantial degree of assistance by the employer, which they attempt to excuse as having been in each instance provoked by spontaneous employee inquiry. As will be seen, infra, I do not believe this mitigating testimony. On May 10, 1972, when Respondent entered the settlement agreement, there were four drivers in Respon- 5 199 NLRB 892 9 The fact that a decertification petition has been administratively dismissed because of a pending 8(a)(5) complaint does not vitiate the defense raised here . The administrative determination that no question concerning representation exists is not conclusive, and is disregarded where through litigation of the complaint no possible connection between employer misconduct and employee decertification activity is shown. See Deblin Manufacturing Corporation, 208 NLRB No. 24. r 201 NLRB 1034. 8-Celanese Corporation of America, 95 NLRB 664, 673 ; Plastiline, Inc., 190 NLRB 365, 374; General Motors Acceptance Corporation, 196 NLRB 137, and cases cited at In . 8 thereof. 9 1 am not entirely certain as to the reliability of the testimony of James Dickerson, the principal protagonist of decertification, to the effect that he mailed said petition without aid of Respondent. It is noted that Dickerson dent's employ. Davis and Voss worked days. And Dickerson, who had just been hired on May 7, 1972, and Dykstra worked nights. The day drivers were known to be union, and the night drivers were believed by Respondent to be nonunion. According to Bauman, who was called as a 43(b) witness by the General Counsel, on the evening of May 10, Bauman, having entered the settlement agreement that very day, asked his attorney for information as to what employees could do if they didn't like the union contract. Bauman testified that, when accorded legal advice as to the possibility of a decertification petition, he jotted it down because, as he testified, ". . . I wanted to give a full account to the employees as I have the past 18 years, as long as I've been in personnel management. " The next day, Bauman called a meeting limited to Dykstra and Dicker- son, the night drivers, who were regarded by Respondent as nonunion. Dykstra and Dickerson did not attend the unfair labor practice hearing which culminated in the contract with the Union , and, according to Bauman, both had requested information as to what had transpired, from Bob Reiser, the dispatcher." Bauman told them they would be under a union contract which would run until December 31, 1972. According to Bauman, when one of the drivers asked what they could do if they weren't happy with the Union,12 Bauman relayed the information he had obtained from his attorney the previous night concerning the decertification process, with the admonition that they would have to contact the NLRB or get their own attorney to take such action. It is conceded on the face of the testimony of Bauman and Reiser that, if this latter admonition was in fact expressed, the Company did not stand behind it. Following the May 11 meeting, and beginning sometime in August, Dykstra and Dickerson repeatedly requested of Reiser that the Company obtain decertification forms for them. Reiser on these occasions told the men that he would have to check with Bauman. When Reiser did so, Bauman told him that he would have to check with Respondent's attorney. On the first occasion, the attorney advised Bauman that the men would have to get their own lawyer, and this was relayed to Dickerson and Dykstra. Neither was in favor of getting a lawyer because of the expense involved. Thereafter, the two drivers again requested that Reiser obtain the forms. He again told them that he would check with Bauman, which he did, and was again informed by Bauman that he would check with the Company's attorney. Thereafter Bauman advised that they could find out "where to get . . . the application or whatever ...," but testified that before he obtained the petition forms he requested the Company to provide them because he was unable to obtain information as to the address of the NLRB Regional Office. The Company's subsequent cooperation with Dickerson would hardly have encouraged him to act on his own in taking the steps necessary to the mailing of the petition. iO Robert Reiser is the Respondent's dispatcher and personnel manager and an admitted agent. ii Reiser testified in corroboration of Bauman, indicating that Dykstra had been inquiring as to what was happening, and the main purpose of the meeting was to explain to Dickerson and Dykstra what had transpired at the hearing. i2 Reiser also corroborated Bauman in this respect , stating that one of the drivers, whose identity he could not recall, raised the question of how they could ". . . get rid of the union or something to that effect." CONDON TRANSPORT, INC. 301 Bauman emphasized that the Company would ".. . definitely not assist them in any way." When Reiser reported back to Dickerson and Dykstra, they again requested that the Company obtain the forms. At this point, Reiser told Bauman to get the form. Reiser further testified that in late September the decertification petition form was furnished by the Compa- ny's attorney.13 A few days after its receipt, the form was given to Dickerson. Dickerson, after receiving the form, went to Reiser, seeking assistance with respect to certain parts of the petition he did not understand. Reiser did not immediately provide the information. According to his testimony, he again indicated he would have to check with Bauman, who again indicated he would have to check with Respondent's attorney. Thereafter, the information was provided to Dickerson.14 Subsequently, Dickerson had another problem with the mechanics of signing the petition . He again sought Reiser's assistance. Reiser testified that he again would contact Bauman, who again indicated he would check with the Company's attorney. Bauman thereafter provided the information for relay to Dickerson, again admonishing Reiser "not to assist" Dickerson. Bauman also testified that in late September or October Dickerson had inquired as to when the petition had to be filed. Bauman called his attorney, and obtained the open period dates from him, which Bauman relayed to Reiser with the understanding that Reiser would so advise Dickerson. In addition to the testimony of Reiser and Bauman, James Dickerson, testified that he was initially employed by Respondent on May 7, 1972. Dickerson, who impressed me while testifying, as highly concerned with the possibility that he might give testimony prejudicial to Respondent and fearful of that possibility, did relate credibly as to certain matters contrary to Respondent's interest. Thus, he did indicate that during his prehire interview, shortly before the May 11 meeting, Bauman asked him what he thought of unions. Dickerson replied that he "didn't think . . . [he] ... was interested in the union." Bauman also told him that the two day drivers were union and the night driver was nonunion. Dickerson also credibly testified to a conversation with 13 It was stipulated that September 14, 1972, was Dykstra's last day of employment. From that point until October 20, 1972, the only drivers employed by Respondent were Davis, Voss, and Dickerson. 14 The RD petition is in evidence as G.C. Exh. 8. Reiser conceded that he obtained the information used in answering items, 5, 6-A, 6-B, 10, and I 1-B therein . Reiser provided the information on a separate piece of paper on advise of Respondent's counsel. At least part of the information furnished Dickerson was supplied by that attorney. 15 Birkholz subsequently joined Dickerson as a cosponsor of the petition. It is apparent from Dickerson's account of the information supplied him by the Company that Respondent was of the view that the RD petition required signatures of two drivers. I do believe that Dickerson was interrogated by Bauman as to Birkholz' union attitudes. I find incredible Bauman's testimony that on an earlier date Birkholz had come into his office and officiously bared his antiunion sentiments . As will subsequently be indicated, I was totally unimpressed with Bauman's demeanor, and it is my belief that Dickerson would not have testified as to this instance of interrogation had it not occurred . I also believe that at the time Bauman was highly interested in Birkholz' attitudes because of concern that two signatures were needed on the petition. 16 Dykstra testified at a resumption of the hearing in this case , pursuant to the remand order of the Board , requiring me to permit the General Bauman relative to another driver, James Birkholz, who commenced working for the Respondent as a night driver on October 20, 1972, as Dykstra' s replacement. Bauman asked Dickerson on or about that date if he knew what Mr. Birkholz' feelings were towards the Union.15 Dickerson responded that, as far as he knew, Birkholz would just as soon not have the Union. Birkholz did ultimately sign the petition a few days prior to its filing. Analysis of whether or not the Company was unlawfully involved in the decertification activity must start with the May meeting. It is my conclusion, from an assessment of the testimony of Dickerson, Bauman, and Reiser, that Bauman the previous evening had obtained the legal advice relative to decertification on his own, and without a reasonable basis for believing that employees would raise this issue. Apart from the testimony of Bauman and Reiser, there is no evidence that Dykstra or Dickerson were so openly antiunion that, without knowing whether or not the settlement agreement enhanced their conditions of work, they would have expressed anything to Reiser or Bauman which would lead the latter to believe that they were intent on getting rid of the Union from the very outset of the bargaining relationship.16 I am satisfied that Bauman on May 10 obtained the decertification information with the plain intention of implanting the decertification idea among the night drivers, in order eventually to evade the bargaining obligation that he had agreed to assume that same day. Bauman was hardly an impressive witness. His testimony was shifting, contradictory, and marked by frequent insertions of either a lack of knowledge as to the law or a lack of recollection which impressed me as Bauman's chosen means of excusing improprieties or foreclosing effective scrutiny of the Company's defense. He impressed me as a schemer, who, while willing to give lip service to the interests and rights of his employees, was intent on retaining absolute control over Respondent's operations, and willing to engage in whatever manipulation of employees, the Union, and the law that he deemed necessary to meet these ends. His own testimony and that of Reiser 17 plainly evidences Bauman's practice of making statements to employees to the effect that he would abide by the law, while turning around and doing the exact Counsel to litigate as background the matters raised by the settled complaint in Case 30-CA-1862. Dykstra was not examined as to the events preceding or what had transpired at the May I I meeting. He did testify that, at the time of his employment with Respondent , he was a member of a sister local to the Charging Party. It was not my impression that Dykstra was as militantly antiunion as Bauman and Reiser would have me believe. Dickerson testified that in conversations with Dykstra prior to Dickerson's hire Dykstra never commented on his feelings towards unions, and Dickerson had no idea of Dykstra's attitudes in this regard . This, despite the fact that Dykstra had recruited Dickerson for employment with the Company and had taken him on student runs. Dickerson further testified that he had no discussions with Dykstra about the Union until after the hearing. As for Dickerson's sentiments, he testified that at the time of his hire on May 7, just 2 days prior to the opening of the hearing in 30-CA- 1862, he did not know of the organization drive by the Charging Union . Although Dickerson, on questioning by Bauman, had indicated that he was not "interested" in unions, there is no evidence that he said anything to Bauman that would lead Bauman to believe that Dickerson would subsequently raise any question as to how to get rid of the Union . Indeed, it is the sense of Dickerson's testimony that he did not do so at the May 11 meeting. 17 I was also unimpressed with the corroborative testimony of Reiser, (Continued) 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposite. Furthermore, there is no question in my mind that Bauman, though professing to adopt a stance of neutrality and disinterest, would long ago have suppressed the interests of nonunion employees had the Union offered a deal to his suiting. I am satisfied and find that not only was the decertifica- tion possibility conceived by Bauman, but that he implanted that idea without specific request for such information by either Dickerson or Dykstra. Aside from my impression as to the means by which Bauman operated, and the fact that I do not believe either his exculpating testimony or that of Reiser, I believe it entirely implausible that as of May 10, 1972, Dykstra or Dickerson, without prodding from management, would have inquired as to the means of getting rid of the Union.18 The suspicion generated by the timing of Bauman's having obtained the information on decertification is enforced by his passing on this information at a meeting of employees who would be most sympathetic. I note that I am satisfied that Bauman was mindful of the potential for rivalry between the day and night drivers, based upon the more desirable nature of day work. This factor would encourage the night drivers to nurture the good graces of the Company. The exclusion of Davis and Voss from that meeting plainly reveals that Bauman was not acting out of complete objectivity and, in my opinion, was calculated to impress Dickerson and Dykstra with the implicit assurances that the Company fostered and would support the decertifica- tion effort. As events subsequently unfolded, this proved to have been the case. Neither Dykstra nor Dickerson at any time saw the need to seek assistance from independent sources. If company spokesmen had advised them that it would not lend assistance and that they should get independent counsel, neither Dykstra nor Dickerson took these words seriously. At every turn, they went to the Company for whatever information, data, or documents they needed to perfect the filing of a timely petition. As I am certain they would anticipate, in each instance, the Company was responsive.19 In these circumstances, it is immaterial that the Respondent did not expressly advise them to get rid of the Union, for such a desire was implicit from the comprehensive assistance afforded them. Based upon the foregoing, I find that Respondent violated Section 8(a)(1) by its overall assistance to and support of the decertification activity.20 I would further note that even were I to accept the entirety of the whose testimony amounted to a "pat" outline of Respondent's legal defense In observing Reiser on the stand , it was my impression that he was intent on relaying testimony which would absolve the Company of wrongdoing, rather than the facts as they occurred. is I note that portions of Dickerson's testimony on cross-examination by Respondent's counsel does suggest that the decertification issue was raised by either he or Dykstra . Although the entirety of Dickerson's testimony is somewhat vague on this point, other points in his testimony indicate that his response on cross-examination may well have been the byproduct of leading questions by Respondent's counsel . In the total circumstances, I regard Dickerson's testimony on this point as entitled to no weight ie In contrast to his cooperative efforts with respect to the decertification activity, Bauman's dealings with the Union may hardly be viewed as receptive to the principles of collective bargaining. He first delayed execution of the agreement required by the settlement until September 12, 1972, and did so on highly technical , and legally erroneous, grounds. Secondly, he declined to acknowledge or respond to the Union's request of October 10, 1972, for a meeting date to negotiate a new contract, even testimony of Bauman and Reiser my conclusion in this regard would not be altered. It may well be that the law permits an employer, on request of employees, to provide on an isolated and limited basis certain information otherwise unavailable to them, or beyond their personal knowledge 21 However, such privilege may not be con- strued as a license for an employer to use employee requests as a pretext for enmeshing itself in virtually every stage of the decertification process . The degree of involve- ment here, even on the testimony of Respondent's agents, was such as to make the Respondent a full partner in the effort to oust the Union, and would create an atmosphere whereby employees, despite indifference or only marginal opposition to the Union, would be encouraged to support management's implicit intention in this regard . For these reasons, I would find the 8(a)(l) violation even were I to believe that Bauman, at the May 11 meeting, raised the decertification issue only in response to specific inquiry by an employee. Having so found, it follows that Respondent is not free to invoke the decertification petition as a defense to its refusal to bargain with the Union beginning on October 10, 1972.22 It is my further finding that, as Respondent's unlawful participation in the decertification activity tended to dissipate and induce the Union's loss of majority, the Respondent could not assert a good-faith doubt of a majority in defense of its aforedescribed refusal to bargain.23 Accordingly, I find that Respondent since October 12, 1972, violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union in the historic collective-bargaining unit. Further, there being no dispute that Respondent on February 1, 1972, without bargaining or notification to the Union, established a private insurance plan and suspended contributions to the previously negotiated health and welfare plans, I find that, by such unilateral action, Respondent further violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Condon Transport, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. General Teamsters, Warehouse and Dairy Employ- ees Union Local 126, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen though no arguable bar existed to recognition until some 3 weeks thereafter. 2O I also find that Respondent violated Sec . 8(axl) by Bauman's coercive interrogation of Dickerson as to Birkholz' union sentiments. 21 See, e.g., North American Aviation, 163 NLRB 863; Keno-TV-Mission, 163 NLRB 1005; Consolidated Rebuilders, Inc., 171 NLRB 1415. A fourth case cited by Respondent, Clark Control Division ofA 0 Smith Corp., 166 NLRB 266, is distinguishable as it does not involve employer assistance in the context of an existing bargaining relationship, but involves an initial organization campaign, in the course of which, certain employees having signed authorization cards, sought information as to how they could be revoked. Considering the nature of authorization cards and conditions prevailing during an organization campaign, employers are afforded considerably more latitude in furnishing assistance to employees in such circumstances . In any event, the degree of assistance involved there is significantly more limited than that of Respondent in this case. 22 National Cash Register Company, supra. 23 Cases cited at In. 8, supra. CONDON TRANSPORT, INC. 303 and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees who perform semidriving services, excluding office -clerical employees, salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent, by implicitly suggesting to employees that they file a decertification petition with the Board, by obtaining the decertification forms for employees, by obtaining and providing information for employees re- quired to perfect filing of the decertification petition, and by interrogating employees regarding union sympathies of other employees, violated Section 8(a)(1) of the Act. 5. Respondent, by refusing to bargain since October 12, 1972, with the Union as exclusive bargaining representative of employees in the appropriate bargaining unit set forth above, and by unilaterally establishing a private insurance plan and eliminating other employee pension and health and welfare benefits, has violated Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices constitute unfair labor practices which affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain violations of Section 8(a)(5) and (1) of the Act, it shall be recommended that Respondent cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Respondent contends that, despite any refusal to bargain, a recommended order that it bargain with the Union would in this case be inappropriate. In this regard Respondent relies upon Allou Distributors, Inc., 201 NLRB 47, and Laura Modes Company, 144 NLRB 1592, where such a remedy was withheld against a background of union violence and intimidation calculated to insure employee adherence to a union. In my opinion the principles of the cited cases are inapplicable here. The only misconduct attributable to the charging Union in this case relates to a prior charge in Case 30-CB-580. A complaint issued on that charge alleging that, on or about November 20, 1972, the Union violated Section 8(b)(1)(a) and (2) of the Act by threatening to cause the discharges of Birkholz and Dickerson, because of their failure to become members of the Union when not obligated to do so. That complaint was disposed of by the Regional Office through execution of an informal settlement agreement, with a nonadmission clause. As to the issue underlying that dispute, I am satisfied that it involved a good-faith attempt by the Union to enforce the union-security clause of the subsisting collective-bargaining agreement, with the lawfulness of that action turning upon whether or not the laws of the State of Wisconsin precluded enforcement of such provi- sions at that time. The conduct in Case 30-CB-580, at worst, was limited to an effort by the Union to enforce contractual membership obligations, was not otherwise designed to influence employee attitudes towards the Union, and was an isolated, violence-free incident which hardly suffices to bear upon the appropriateness of the conventional Board remedy in this type of case. See, e.g., World Carpets of New York, Inc., 188 NLRB 122, fn. 5; and New Fairview Hall Convalescent Home, 206 NLRB No. 108. Accordingly, I shall order Respondent to bargain upon request with the Union, and to embody any agreement reached in a written contract. To redress the unilateral termination of employee benefits under the joint management-Teamsters pension, health and welfare programs, I shall recommend that Respondent restore such benefit programs and make employees whole for any losses they may have sustained by virtue of the lapse in coverage resulting from Respondent's unlawful refusal to bargain, including the payment of unpaid contributions to said plans to the extent necessary to redress any prejudice to employees with respect to conditions of eligibility, service credits, or other terms which employees would have enjoyed had their participa- tion been continuous.24 The Charging Party requests certain extraordinary remedies, including (1) reinstitution of the expired collec- tive-bargaining agreement until an impasse is reached pursuant to the bargaining order; (2) reimbursement of the Union for loss of any dues not checked off; and (3) reimbursement of the Board and the Union for the cost of investigation, preparation, presentation, conducting of the case, reasonable attorney's fees, salaries, witness fees, transcript and records, printing costs, travel expenses, per diem allowances, and any other reasonable costs and expenses incurred. In my opinion, such relief is unwarrant- ed in the circumstances of this case. As to (1) and (2) above, existing law protects employees against unilateral changes with respect to contractual terms constituting wages, hours, and terms and conditions of employment as defined in the Act, and insofar as the contract includes matters not fitting that definition, here again, I see no reason why the remedial processes of the Board should be substituted for collective bargaining. As to (3) above, the Charging Party cites Tiidee Products, Inc., 194 NLRB 1234, where the Board, following a remand from the United States Court of Appeals for the District of Columbia,25 afforded such relief because the respondent's action in that case had produced frivilous, unwarranted litigation. The Charging Party also cites Food Store Employees Local 347 [Heck's, Inc.] v. N.L.R.B., 476 F.2d 546 (C.A.D.C.), cert. denied 414 U.S. 1069 (1973), where the circuit court enlarged the Board's remedy to include reimbursement for expenses similar to that requested here where the employer had persisted in an unlawful pattern of resisting union organization. With respect to the Heck's case, it is noted that the Board did not accept the court's decision, and instead sought certiorari, which was denied by the Supreme Court. Until a conclusive determination by the Supreme Court on this major issue affecting the remedial discretion 24 This provision is not to be construed as requiring the Respondent to make contributions in amounts exceeding preexisting contribution levels Restoration of the status quo ante may be accomplished without imposition of new terms and conditions of employment at the expense of collective bargaining 25 International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R B, 426 F.2d 1243 (C A.D.C.), cert. denied 400 U.S. 950 (1970). 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Board, there will be no clear guidelines for insure that said notices are not altered, defaced, or covered determining the appropriateness of such relief in any given by any other material. case. However, while it is my opinion that the violations (e) Notify the Regional Director for Region 30, in here add up to a serious and flagrant breach of statutory writing, within 20 days from the date of this Order, what obligations, I do not see this case as sufficiently out of the steps the Respondent has taken to comply herewith. mainstream of cases in which Board processes are invoked and where no such relief has been granted, to warrant imposition of such extraordinary remedies. Accordingly, I do not deem it appropriate to grant the Charging Party's request in this case. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER26 Respondent, Condon Transport, Inc., Ripon, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating, implicitly suggesting to employees that they file a decertification petition, obtain- ing decertification petition forms for employees, obtaining for and providing information to employees required to perfect filing of such petitions, or in any other manner assisting employees in decertification activity. (b) Refusing to bargain collectively with the Union as exclusive bargaining representative of all employees in the appropriate bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (c) Unilaterally changing the terms and conditions of employment of employees in the appropriate collective- bargaining unit without prior notification, consultation, and bargaining in good faith with the Union as their exclusive representative. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union as the exclusive representative of employees in the appropri- ate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, rescind any unilateral changes in the terms of employment effectuated by the Respondent after January 1, 1973. (c) Make whole employees in the bargaining unit for monetary and other losses incurred as a result of the unlawful unilateral changes in terms and cond-ons of employment, in the manner set forth in the portion of this Decision entitled "The Remedy." (d) Post in conspicuous places at its Ripon, Wisconsin, facility, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix."27 Copies of the notice, on forms provided by the Regional Director for Region 30, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to 26 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. 27 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees concerning union activity or in any manner assist them in efforts to decertify General Teamsters, Warehouse and Dairy Employees Union Local 126, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. WE WILL NOT change any existing terms and conditions of employment negotiated by the above Union, without first notifying, consulting, and bargain- ing with the Union as exclusive representative of employees in the appropriate collective-bargaining unit, consisting of : All employees who perform semidriving services, excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL, upon request, recognize and bargain with the above named Union as the exclusive representative of all our employees in the above bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a signed agreement. WE WILL make whole our employees for any losses sustained by our unilateral cancellation of the pension, health, and welfare programs previously negotiated by the Union in the manner set forth in the section entitled "The Remedy" in the Decision of the Administrative Law Judge. CONDON TRANSPORT, INC. (Employer) CONDON TRANSPORT, INC. 305 Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concerning this notice or compliance with This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, anyone. Commerce Building, Second Floor, 744 North Fourth This notice must remain posted for 60 consecutive days Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.