Business Envelope Manufacturers of Tennessee, Inc.

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Business Envelope Manufacturers of Tennessee, Inc. and Local 234, Graphic Arts International Union, AFL-CIO. Cases 10-CA-11233 and 10-RC- 10261 December 15, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On April 2, 1976, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent and the Party of Interest' filed exceptions and supporting briefs, and the Charging Party2 filed a brief in opposition to the 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 record in 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 only to the extent consistent herewith. The Administrative Law Judge found Respondent violated Section 8(a)(1) and (2) by threatening its employees and rendering support and assistance to the Teamsters Union by, inter alia: coercively interro- gating its employees; threatening its employees with surveillance, loss of benefits, futility of bargaining, and plant closure if its employees chose the Graphic Arts Union as their collective-bargaining representa- tive; promising certain benefits if the employees chose the Teamsters as their collective-bargaining representative; and rendering special privileges to the Teamsters while denying similar privileges to the Graphic Arts Union. In his remedy, the Administra- tive Law Judge recommended that the election won by the Teamsters be set aside, Respondent be directed to bargain with the Graphic Arts Union, and Respondent be directed to take certain other appro- priate remedial actions designed to effectuate the purposes of the Act. No exceptions were filed to the findings of unfair labor practices or to the recommendation setting aside the election.3 However, Respondent and the Teamsters did file exceptions to the recommended bargaining order. For the reasons set forth below, we find merit to these exceptions. ' Teamsters Local Union No. 519, Knoxville and Vicinity , affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, hereafter referred to as the Teamsters. 2 Hereafter referred to as the Graphic Arts Union 3 Accordingly these findings are hereby adopted 227 NLRB No. 41 As set out more fully in the Administrative Law Judge's Decision, the Teamsters was the incumbent collective-bargaining representative of Respondent's production and maintenance employees and was party to a then current collective-bargaining agree- ment with Respondent expiring on March 30, 1975. In late 1974, officials of the Teamsters met with Respondent and, in a prenegotiation discussion, informed Respondent that the Teamsters intended to seek substantial wage increases during the forthcom- ing contract negotiations. The Teamsters and Re- spondent met several more times for prenegotiation discussions, and on February 17, 1975,4 the negotia- tions for a new collective-bargaining agreement were formally opened. Meanwhile, on or about February 10, the Graphic Arts Union began its organization campaign, and during the next several days two organization meetings were conducted. On February 17, the Graphic Arts Union notified Respondent by letter of its organization campaign. By February 21, the Graphic Arts Union had obtained authorization cards from a majority of the employees in the unit and on that date filed a petition for an election which raised a real question concerning representation. Thereafter, the Respondent, the Teamsters, and the Graphic Arts Union signed a Stipulation for Certifi- cation Upon Consent Election Agreement, and on April 2 a secret ballot election was conducted in which the Teamsters received a majority of the ballots cast. The Graphic Arts Union then filed the objections to the election and the unfair labor practice charges that are the subject of this proceed- ing. As found by the Administrative Law Judge, subse- quent to the advent of the organization campaign by the Graphic Arts Union, Respondent engaged in egregious and coercive conduct which was destruc- tive of the employees' Section 7 rights and that was designed to render unlawful assistance and support to the Teamsters in violation of Section 8(a)(1) and (2) of the Act. To remedy this unlawful conduct, the Administrative Law Judge, inter alia, citing The Brescome Distributors Corporation, 179 NLRB 787 (1969), as authority, recommended that Respondent be directed to recognize and bargain with the Graphic Arts Union. Member Penello is of the opinion that under the facts of this case the issuance of a bargaining order is inappropriate and that the Administrative Law Judge's reliance upon Brescome, supra, is misplaced.5 In Brescome, supra, the Board found the respondent had assisted in the initial All dates hereafter refer to 1975 , unless otherwise indicated. 5 The Administrative Law Judge also cited Lawrence Rigging, Inc, 202 NLRB 1094 (1973), and Overland Distribution Center; Inc, 194 NLRB 727 (1971), as authority for the bargaining order. However, neither of those cases involved an incumbent union. BUSINESS ENVELOPE MANUFACTURERS 281 organization of the incumbent, an independent association, and through its supervisors had contin- ued to influence the ' association in its collective- bargaining relationship. We further found the respon- dent's supervisors were officers and members of the association, at least one supervisor had been an active member of the bargaining committee, and with the exception of 1 year the dealings between the parties were never incorporated into a written agreement. Accordingly, in that situation where the employer had actively participated in the organization of the incumbent collective-bargaining agent and where the employer's unlawful conduct had interfered with the election and dissipated the petitioner's majority status, we found a bargaining order was justified. In the present case, on the other hand, there is no evidence that establishes that the incumbent, the Teamsters, was organized or controlled by Respon- dent. Further, there is no evidence that the Teamsters sought the assistance of Respondent or actively participated in the campaign of unlawful conduct .6 Accordingly, in these circumstances, where the Board is faced with competing claims of representation from an incumbent collective-bargaining agent and also from another labor organization with a legitimate card majority, Member Penello fords that a bargain- ing order is not warranted. Although the card majority is sufficient -to -raise a real question concern- ing representation, it is insufficient to establish majority status in the presence of a legitimate incumbent collective-bargaining agent.? Surely if Respondent had recognized the Graphic Arts Union after it had established a card majority and raised a question concerning representation, the Board would have found that relationship to be unlawful and would have directed Respondent to cease recognizing that union until properly certified by the Board. The Board cannot, therefore, issue a bargaining order establishing a collective-bargaining relationship, where elsewhere it would have found that relationship to be unlawful. Member Penello recognizes that Respondent's unlawful conduct has dissipated the support for the Graphic Arts Union and has created a situation which may prevent the immediate direction of a fair and impartial election. Nevertheless, in the face of the incumbent Teamsters claim of a continuing majority status, he is of the view that the Graphic Arts Union's claim' to a card majority is insufficient and that only a Board-conducted election can effectively insure that the employees are given -a free choice concerning the selection of a collective-bargaining representative. Member Penello disagrees with Member Jenkins' observation that our disposition of the case leaves Respondent free to repeat its unlawful conduct and to further distort and subvert the free choice of its employees. In this Decision and Order, the Board has specifically ordered Respondent to cease and desist from engaging in such activities and to take certain appropriate remedial action'set forth in the Order. In the face of such an Order from this Board, an agency of the Federal Government, Member Penello does not presume, as does the dissent, that Respondent will continue to act unlawfully. ' - Member Penello does agree, however, with Mem- ber - Jenkins' observation that our rules are not designed for the situation presented in this case. He also agrees that the Graphic Arts Union has an equitable claim to majority status based upon its card' majority and the resulting presumption. However, in a similar vein, he also fords that the Teamsters has an equitable claim to majority status based upon- its incumbency and the resulting presumption of its continuing majority status. Faced with such a dilem- ma, two conflicting presumptions of majority status, he finds that the two presumptions, in effect,'cancel each other and- that neither claim is sufficient to' establish majority status. Accordingly, it is only with the greatest reluctance that this Board postpones the employees' determination as to a collective-bargain- ing representative. However, under the facts of this case, there is no other choice. Perhaps the differences with Member Jenkins is best explained by the manner in which Member Jenkins defines the issue. Member Jenkins fords the Board is- faced with the question which of two nonoffending unions "has the superior claim to majority status?" There is, however, an even more basic question: Has either Union been able, in fact, to establish a sufficient claim to majority status. As indicated by the previous discussion, Member Penel- lo finds neither Union has been able to establish such a claim, and therefore a bargaining order is inappro- priate- Member Walther agrees with Member Penello I, a remedial bargaining order should not be imposed by the Board in this case. While Member Jenkins' opinion presents some important considerations in favor of a contrary result, in Member Walther's view, there are countervailing policies which are of more importance. 6 Member Penello finds the Administrative Law Judge's comments record as a whole the General Counsel's administrative investigation and regarding the dormancy of the Teamsters to be mere speculation unsubstan- determination that the Teamsters was a bona fide incumbent with a tiated by the record. He notes that the record fails to support the allegations legitimate interest in representing the unit employees. by the Graphic Arts Union that the Teamsters was organized and controlled r Western Commercial Transport, Inc., 201 NLRB 17,21 (1973), enfd. 487 by Respondent. In reaching this finding, he has considered as part of the F.2d 332 (C.A. 5,1973). 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Essentially, Member Walther does not find any evidence that either Union has demonstrated clear majority support by the employees, for the reasons set forth in his concurring opinion in U and I, Inc., 227 NLRB 1 (1976). Because of the presence of the Charging Party and also because of the Respondent's numerous violations of Section 8(a)(2), Member Walther finds it is clearly inappropriate to grant a bargaining order running to the Teamsters. On the other hand, he finds the Charging Party's authoriza- tion cards are an unsatisfactory measure of the employees' desire in this case absent full and com- plete investigation of the effect of the incumbent's status and the extent to which employees may have indicated support contemporaneously of both unions. Member Walther is of the view that the Supreme Court has specifically charged this Agency in its landmark decision that "effectuating ascertainable employee free choice is as important a goal as determining employer misbehavior."8 In view of the potential conflicting claims in this case, more is required to ascertain employee free choice than is present in this record. Member Walther is of the view that on the facts of this case, if Respondent had recognized the Charging Party solely on the basis of its cards, without having thoroughly investigated the Teamsters claim to ma- jority support, then Respondent would have had to demonstrate the clear validity of the Charging Party's majority support. See U & I, Inc., supra. Accordingly, for the reasons stated above, we adopt the Adminstrative Law Judge's Decision except for the portion of that Decision recommending that a bargaining order be issued. Further, we shall remand the representation case to the Regional Director for the purpose of conducting a new election at such time that he deems the circumstances permit a free choice concerning a bargaining representative. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent Business Envelope Manufacturers of Tennessee, Inc., Clinton, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concern- ing their union membership and activities. (b) Threatening employees that it would engage in surveillance of their union activities. (c) Threatening employees that it would close or move its plant if Local 234, Graphic Arts Internation- al Union, AFL-CIO, were chosen as the employees' collective-bargaining representative. (d) Threatening its employees that it would be futile to choose the above-named Union as the employees' collective-bargaining representative since it would be impossible to bargain with it. (e) Threatening its employees that their hours of work would be diminished if they chose the above- named union as their collective-bargaining represen- tative. (f) Threatening its employees that it would get "rough and tough" with them and limit their freedom of movement in the plant if they chose the above- named Union as their collective -bargaining represen- tative. (g) Promising employees that it would rescind a 32- hour workweek notice and return to a 40-hour workweek if the employees joined the Teamsters Union. (h) Promising its employees a retroactive wage increase and paid holidays if they chose the Team- sters Union as their collective-bargaining representa- tive. (i) Offering to pay reinstatement fees of employees to the Teamsters Union if the employees wished to rejoin the Teamsters Union. (j) Permitting the Teamsters Union to hold meet- ings of employees on Respondent's property during employees' worktime to discuss contract proposals or negotiations between the Respondent and the Team- sters Union. (k) Soliciting employees to circulate among other employees and encourage them to support the Teamsters Union. (1) Allowing or permitting an employee representa- tive or union steward of the Teamsters Union to solicit Teamsters authorization cards among the employees of the Respondent while at the same time denying a request of the Graphic Arts Union to solicit signatures on authorization cards during worktime in the plant. (m) Recognizing or contracting with Teamsters Local Union No. 519, Knoxville and Vicinity, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of any of its employees in the appropriate unit, for the purpose of dealing with said organization concerning grievances, labor disputes, wages, rates of pay, hours of employment , or other conditions of employment, unless and until Team- sters Local Union No. 519, Knoxville and Vicinity, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, shall have been certified as such representa- 8 NLRB v Gissel Packing Co, Inc, 395 U.S 575, 614 (1969). - BUSINESS ENVELOPE MANUFACTURERS 283 tive pursuant to a Board-conducted election among Respondent's employees. -However, nothing herein shall require Respondent to vary or abandon any wages, hours, seniority, or other substantive features of its relationship with said employees which have been established in any agreement between Respon- dent and Teamsters Local Union No. 519, Knoxville and Vicinity, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, -or to prejudice the assertion by such employees of any rights they may have acquired under such an agreement. (n) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purpose of the Act: (a) Post at its Clinton, Tennessee, plant, copies of the attached notice marked-"Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative of Respondent, shall be posted by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. - - (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed as to any alleged violations not found to have been sustained herein. IT IS FURTHER ORDERED that Case 10-RC-10261 be and it hereby is remanded to the Regional Director for Region 10' for the purposes of conducting a new election at such time as he deems that circumstances permit a free choice of a bargaining representative. MEMBER JENKINS, concurring and dissenting: I agree with my colleagues' conclusion that Re- spondent violated Section 8(a)(1) and (2) of the Act. However, I disagree with their conclusion that a bargaining order is inappropriate in this case. Respondent has engaged in "an egregious cam- paign of threats" which "ranged the spectrum of 9 In the event that this 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." 1O ALJD, sec. 11, par. 4 11 My majority colleagues view the situation before us as one involving the balancing of offsetting presumptions and, in so doing, they have fallen conduct violative of Section 8(a)(2) and (1) of the Act, making a free choice in the- election of April 2 impossible." 10 Because of the nature and extent of Respondent's unlawful conduct, I am of the opinion that there is no possibility of conducting a fair election at Respondent's facility in the foreseeable future. - The question- we are left with is: Between the two nonoffending Unions, which has the superior claim to majority status? For the following reasons, I am convinced that question must be resolved in favor of the Petitioner-Charging Party. As of the filing of the petition and immediately prior to Respondent's commencement of unlawful activity, the Petitioner- Charging Party enjoyed an overwhelming majority based upon authorization cards. While I am cogni- zant of the frailties of authorization cards as evidence of majority status generally, in this case they repre- sent the only evidence of the uncoerced opinion of the employees. Moreover, they represent the most recent expression of choice prior to the advent of Respondent's violative conduct. My colleagues hold that this card majority is insufficient to establish majority status in the pres- ence of the "legitimate incumbent" status of the Intervenor-Party of Interest. While it is true that a presumption of continuing majority status is usually accorded a legitimate incumbent-, that presumption is no more than its name implies. Here, I am convinced the substantial card majority is sufficient to rebut the normal presumption.11 Moreover, the record shows that the Teamsters had been the employees' represen- tative for only a single contract's duration. Its status was neither supported by certification nor any other objective evidence of majority. The April 2 election clearly cannot be viewed as evidence of continuing majority since those results were severely tainted by Respondent's massive unfair labor practices. Thus, in this case, a fair election being impossible, I conclude that on the basis of objective evidence the card majority is sufficient to rebut the Teamsters presumption of continuing -majority status and, that the bargaining order recommended by the Adminis- trative Law Judge is imperative. As the Supreme Court said in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969), "If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and into serious error. Here, it is only the claim of the incumbent Teamsters Umon which rests upon a presumption . The Graphic Arts Union's claim of majonty status has been proven by the record evidence before us which establishes that an overwhelming majority of the unit employees have authorized the Graphic Arts,Umon to serve as their bargaining representa- tive. A presumption of majority status cannot be given the same weight as actual proof of majority status and when, as here, the proof rebuts the presumption, the latter can no longer be said to have any continuing vitality. DECISIONS OF NATIONAL LABOR RELATIONS BOARD that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue °'. While the facts of that case were different, I find the logic applicable. The majority's argument by analogy to the situa- tion in which an employer recognizes a union on the basis of a card majority in the face of the presence of a legitimate incumbent is-misplaced. The availability of the election process for resolving the question concerning representation is what makes such recog- nition violative. But the fact is that here the question concerning representation raised by the authorization cards cannot be resolved by a fair election, because of the Respondent's grave misconduct. Indeed, if the majority's view is correct, then Respondent is free to repeat its violations in support of the Union which a majority of the employees have rejected, and free to distort and subvert the succeeding election(s) so that that Union wins again and again. My colleagues thus permit Respondent to frustrate indefinitely the desire of a majority of the employees to change their representative. Finally, the equities of the case dictate a bargaining order in favor of the Petitioner-Charging Party. To postpone the election for the period of time necessary to conduct a fair election defeats for far too long the employees' expressed, desires to effect a change in collective-bargaining representatives. In addition, to order a second election rewards Respondent's fla- grant unlawful activity and, as noted above, provides Respondent with another opportunity to effect the outcome it desires. Finally, while we are vainly caught in our own rules which were never designed for this situation, Respondent has successfully elimi- nated its obligation to bargain with any union representing its employees. For the foregoing reasons, I am compelled to give effect to the clear desire of the employees to be represented by the Petitioner-Charging Party and would adopt the recommended Decision and Order of the Administrative Law Judge in its entirety. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize or contract with Team- sters Local Union No. 519, Knoxville' and Vicini- ty, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America (hereinafter Teamsters Union), as the representative of our employees for the purpose of dealing with said organization con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and -until Teamsters Union shall have been certified as such representative pursuant to a Board-conducted election among our employees. However, this does not mean that we are required to vary or abandon any existing term or condition of employment. WE WILL NOT coercively interrogate our em- ployees concerning their union membership and activity. WE WILL NOT threaten employees that we will engage in surveillance of their union activities. WE WILL NOT threaten employees that we will close or move the plant if Local 234, Graphic Arts International - Union, AFL-CIO (hereinafter Graphic Arts Union), is chosen as the employees' collective-bargaining representative. WE WILL NOT -threaten our employees that it would be futile to choose Graphic Arts Union as their collective-bargaining representative since it would be impossible to bargain with it. WE WILL NOT threaten employees that their hours of work will be cut if they choose the Graphic Arts Union as their collective-bargaining representative. WE WILL NOT threaten our employees that we will get "rough and tough" with them and limit their freedom of movement in the plant if they choose the Graphic Arts Union as their collective- bargaining representative. WE WILL NOT promise employees that we will cancel the 32-hour workweek notice and return to a 40-hour workweek if they join the Teamsters Union. WE WILL NOT offer to pay the reinstatement fees of employees to the Teamsters Union if the employees wish to rejoin the Teamsters Union. WE WILL NOT permit the Teamsters Union to hold meetings of the employees on our property during employees' worktime to discuss contract proposals or negotiations. WE WILL NOT solicit employees to circulate among other employees and encourage them to support the Teamsters Union. WE WILL NOT allow or permit an employee representative or union steward of the Teamsters Union to solicit Teamsters authorization cards among the employees while at the same time denying a request of the Graphic Arts Union to solicit signatures on authorization cards during worktime in the plant. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. BUSINESS ENVELOPE MANUFACTURERS 285 BUSINESS ENVELOPE MANUFACTURERS OF TENNESSEE, INC. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge : This consoli- dated proceeding was heard at Clinton, Tennessee, on December 2-4, 1975,1 pursuant to due notice. The com- plaint in Case 10-CA-11233 was issued September 26, based on a charge against Respondent filed April 30 by the Charging Party. Case 10-RC-10261 was consolidated with the complaint proceeding by Order of the Regional Director for Region 10 of the National Labor Relations Board, dated October 2, in which a hearing was ordered based on the Petitioner's timely objections to an-.election conducted by the Board on April 2, among certain employees of the Respondent-Employer. The complaint alleges, in essence, that commencing in February, Respondent, through its agents and supervisors, illegally rendered support and assistance to the Intervenor- Party of Interest by engaging in acts and conduct more fully detailed herein . By its duly filed answer, Respondent admitted the jurisdictional allegations of the complaint and the status ofthe Petitioner-Charging Party and Intervenor- Party of Interest as labor, organizations within the meaning of the Act; however, it generally denied the commission of any unfair labor practices. At the close of the hearing, oral argument was waived; however, helpful, posthearing briefs were filed by counsel for the General Counsel, counsel for Respondent-Employ- er, and by counsel for the Petitioner-Charging Party, which have been duly considered. Upon the entire record in the case, including arguments of counsel and -my observation of the demeanor of the witnesses,2 I make the following: FINDINGS AND CONCLUSIONS 3 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a multiplant company engaged in the manufacture, sale, and distribution of business envelopes. It maintains facilities in the States of New York, California, and Tennessee, the Clinton, Tennessee, operation being the only one involved in this proceeding. Respondent -com- menced operations in Clinton several years prior to the events discussed herein, and in 1972 voluntarily recognized the Teamsters4 as the collective-bargaining representative i All dates hereinafter refer to the calendar year 1975, unless otherwise indicated. 2 Cf. Bishop and Malco,-Inc., dfb/a Walker's, 159 NLRB 1159, 1161 (1966). 3 There is no issue as to the Board's jurisdiction , or of the status of the Unions as labor organizations. As previously noted, the complaint alleges sufficient facts, which are admitted by answer, upon which I may, and do hereby, find that Respondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and that the Unions, and each of them, are labor organizations within the, meaning of See. 2(5) of the Act. 4 Teamsters Local Union No. 519, Knoxville and Vicinity, affiliated with of its production and maintenance employees.5 A collec- tive-bargaining agreement was entered into between the parties on May 1,1972; for a term of 3 years .6 On or about - February 10,_ an organizational campaign was commenced among Respondent's production and maintenance employees by Local 234, Graphic Arts Inter- national Union, AFL-CIO (herein sometimes called Graphic Arts or Petitioner-Charging Party). According to the undenied and credited testimony of James A. Rhyne, president of the Local, two meetings were conducted at a local motel in Clinton on February 11 and 15 , in further- ance of the campaign.7 On February 17, Rhyne dispatched a letter to Respondent- advising of the organizational campaign and ,naming certain of the employees as consti- tuting a volunteer "in-plant committee." 8 It is the conten- tion of the General Counsel and of the Charging Party that, commencing at about this time, Respondent engaged in a vigorous and extensive countercampaign against ,the Charg- ing Party and in favor of having the employees continue to be represented by the Teamsters . This campaign allegedly took the form of promises of benefit to the employees if they retained the Teamsters as their collective-bargaining representative, and threats of dire economic consequences if they changed their adherence to the Charging Party. Respondent is also alleged to have met and entered into negotiations with the Teamsters during the pendency of a real question concerning representation of Respondent's employees occasioned by the filing of a petition by Graphic Arts on February 21, in Case-10-RC-10261 . We come now to a consideration of the , evidence adduced in support of these contentions.. B. Alleged Interrogation, Threats, and Promises of Benefit 1. By Bernie -Muchnick Muchnick, plant manager of the Clinton facility, ac- knowledged that he called employee Marilyn Hansard into his office shortly after he received the letter from the Charging Party advising of the organizational campaign and of, the employees who constituted the "in-plant committee," hereinabove ^ referred to.9 Muchnick stated that he "thought highly" of Hansard and called her in to discuss the union campaign as "friend to friend." He testified that he asked Hansard if-she was aware that the Company was having negotiations with the incumbent union and advised her that, when-two unions clash, things can become "awfully sticky and drag out, and he-felt that the employees could be hurt." He also advised that he was somewhat disappointed that Hansard would be involved in something like that. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 5 At the time of the NLRB-conducted election at this plant in April, 1975, there were, according to the report of the Regional Director (G.C. Exh. 2(a)), approximately 135 employees in the unit. 6 See C.P. Exh. 102. 7 Clinton is a relatively small community located approximately 34 miles north of the city of Knoxville, Tennessee 8 G.C. Exh. 6. 9 Hansard was one of the employees named as being on the committee. 286 DECISIONS OF NATIONAL LABOR '-RELATIONS BOARD Hansard testified that she had two meetings with Much- nick in his office: the first taking place on or about February 18 or 19, and the second on or about March 7, shortly before the meeting of the employees with the Teamsters Union.10 At the first meeting, Muchnick asked her "what she was getting herself into," and she replied that she wanted to see if something more could be done for the employees. At the second meeting, according to Hansard's testimony, Muchnick told her that evidently the previous conversation had not "done any good," and he questioned again whether she knew what she was getting herself into. When she answered affirmatively, Muchnick went on to advise her of his knowledge of the "Printer's Union" which he acquired from relatives in New York who were out of a job because of this union. He went on to state that he knew his boss I'-better than Hansard did, and that he could get "rough and tough" on the employees in the plant by, for example, cutting down on their "roaming around the plant and talking at their machines"; he further advised that Kristel had made a very generous offer to the Teamsters in negotiations, and that the employees were going to get 50 cents additional per hour and that the employees "might just as well be satisfied with that and take it because no other union could do any better." 12 Muchnick denied making the "rough and tough" remark, and that Kristel would not tolerate the Graphic Arts Union. He also denied telling Hansard that employees' activities would be restricted if the Charging Party was voted for in the election. However, Hansard impressed me favorably as a witness, and I cannot believe that she fabricated the remarks attributed to Muchnick. Accordingly, I credit her testimony and find that, by such remarks, Respondent, through its agent and supervisor, Bernie Muclinick, interro- gated an employee concerning her union activities and threatened reprisals if the employees did not lend their adherence to the Teamsters Union in the competition between the two unions extant at the plant at that time. During the last week in March, Muchnick called employ- ee Richard Johnson into his office- and asked the latter to circulate around his department and talk to his fellow employees about the Teamsters - that "we were envelope makers not printers, and did not need the [Graphic Arts] union." Muchnick further stated that if the Graphic Arts Union did go in, his boss would "probably shut the plant down and move it." 13 I find the foregoing request and threat to constitute illegal support and assistance for the Teamsters Union, in viola- tion of Section 8(a)(2) and (1) of the Act. Woodard Rains, a former employee of the Company, testified that, around the middle of March, Muchnick called him into his office and told him that he (Muchnick) would prefer the Teamsters to the Graphic Arts Union. He further testified that Muchnick threatened to "close the plant down - that he wouldn't have Graphic Arts in there." Muchnick denied speaking to Woodard Rams about union activities at any time. The record shows that to The record establishes that the Teamsters conducted a meeting among Respondent's employees in the shipping room at approximately 4 p.m. on March 7 ' 11 Ira Kristel, president of the Respondent. 12 Testimony of Hansard. 13 Credited testimony of Johnson. Muchnick did not refer specifically in the threat attributed to Muchnick by Rains came only after a leading question by counsel for the General Counsel. Furthermore, on cross-examination, Rains appeared rather uncertain as to the alleged threat. Under all circumstances, including Rains' demeanor on the witness stand, I am not convinced that Muchnick uttered the threat on this occasion, and therefore find that this allegation of the complaint has not been sustained by the evidence. During the month of March, an employee of Respondent named Ann Martin, a machine operator and shop steward for the Teamsters Union at that time, circulated about the plant speaking on behalf of that Union and soliciting Teamsters authorization cards. During the time she was absent from her machine, Respondent replaced her with another employee since the machine was not fully automat- ic and required attention by an operator. The evidence further shows that some of the supervisors of the various departments she visited were aware of her activities. For example, Richard Johnson testified that while she was soliciting in the cutting department, Supervisor Delaney was present.14 Marilyn Hansard testified that when Martin came into her department and talked to her about the Teamsters Union, Hansard's supervisor was in the depart- ment. Hansard further testified that she observed Martin talking to other employees during worktime in other areas of the plant. Employee Shirley Kanipes observed Martin in her department (the jigger department), and saw Martin first go to Supervisor Pete Gati when Martin first came into the department and then proceed to solicit the machine operators there on behalf of the Teamsters Union.15 Employee Betty Sue Clabough testified that she observed Ann Martin in the comet department (Martin was a machine operator in the webb departm_ ent). Clabough further testified - that Martin talked to her about the Teamsters' Union during working hours and solicited Clabough to sign an authorization card for the Teamsters. Clabough's supervisor, C6chran,16 was present in the department when Martin was- there. Clabough further testified that she was an employee who was called upon to work at Martin's machine 1 day while Martin was going through the plant engaging in the activities above de- scribed. Martin was not called as a witness at the hearing. Muchnick testified that Respondent permitted the Team- sters shop steward to go around the plant for the purpose of asking the employees if they had any questions and if they wanted to make an appointment, with either himself or Plant Coordinator Al Smith, for clarification of any issues. Muchnick denied that Martin advised - him that she was attempting to obtain signatures on Teamsters authorization cards, and he -further denied that he was aware that Martin was attempting- to solicit. Such denial is not credited. Indeed, the evidence shows that following her observation of Martin's activities described above, Marilyn Hansard went into the office of Muchnick and requested "equal time" to perform the same functions on behalf of the his testimony to a conversation with Johnson but generally denied telling any employee that the Company would close if the Graphic Arts Union were to come in. I do not credit this denial. 14 Delaney did not testify at the heanng. 15 Gati did not testify at the hearing. 16 Cochran did not testify at the hearing. BUSINESS ENVELOPE MANUFACTURERS 287 Graphic Arts Union that Martin did for the Teamsters, Union. Muchnick acknowledged that Hansard made such a request, but testified that -he did not "really understand" what she meant by equal time. She replied that "If you have the Teamsters here why can't we have the GAIU here," to which Muchnick responded that, the matter was "in, the hands of the lawyers.- . Based on all of the foregoing, I am convinced and therefore find that the activities of Martin were well known to the agents of Respondent and were condoned (if not encouraged) by Respondent. Under the circumstances, -I find that such conduct constituted illegal support and assistance to the Teamsters Union, in violation of Section 8(aX2) and (1) of the Act. 2. By Plant Coordinator Allen Smith Allen Smith, an admitted supervisor, is known as the plant coordinator;. his primary responsibility is with respect to the departments (jigger, comet, and darkroom) on the second floor of the building. He admitted to holding several meetings with employees in these departments in February or March in response to individual questions which had been asked of him by the employees. He testified that he had no prepared text, and made no opening statement other than to tell the employees that there would be no recrimina- tion for union activities of any kind in the plant, and that no one had to remain if they chose not to. He thea-threw:the meetings open for questions. - - Effie Mae DeStefano, an employee at that time in the jigger department, testified that Smith told the employees that the owner of the Company (Ira Kristel) would not have the Graphic Arts Union in the plant - "that he could not live with them"; that if the employees voted for the Teamsters; they would receive a 50-cent-per-hour raise "then and there." Smith further stated, according " to DeStefano's testimony, that Kristel -would close the plant down and move it and that all of the employees would be out of a job. She further testified that the question of union dues was raised, and that Smith stated that if any of the employees wished to rejoin the Teamsters Union but did not have the necessary money for a reinstatement fee, Smith stated that he would "personally take $25 out of his pocket andpay it for them." 17 David Wells, an employee of the Company in the comet department, stated that Smith spoke to the employees in early March. Smith stated that he had known Ira Kristel-for a long while and had-been to school with him, and it was his opinion that, if the employees voted for the Graphic Arts Union, Knstel would shut the plant and move it somewhere else. Wells also affirmed that Smith said that, if employees would rejoin the Teamsters and needed money for a reinstatement fee, he (Smith) would pay the initiation fee out of his own pocket. Linda Bowling, an employee in the jigger department, also affirmed Smith's statement that he knew Kristel personally and he knew that Kristel "could not live with" the Graphic Arts Union; that Smith-further stated that, if the Graphic Arts Union got in, the Company already had a plant located in :either North Carolina or South Carolina to which they would move. Bowling further affirmed that employee Shirley Kanipes asked Smith the amount of the fee to get back into the Teamsters Union, to which Smith responded that he really did not know but that it would probably be around $25, and that he would pay it out of his own pocket to any employee who needed it. Bowling further -testified that Smith mentioned a notice which had been posted on the plant bulletin board on March 4, which notice advised all employees that "Because of extremely poor sales in our business envelope area, the Company is herewith forced to reduce B.E. departments from a 40 hour to a 32 hour workweek." 18 , Smith stated that if all employees voted for the Teamsters, the Company would go back to a 40-hour workweek. Shirley Kanipes, an employee in the jigger department, affirmed that Smith held a meeting in the early part, of March among employees, in that department and stated that "If the Graphic Arts [Union] came in, Kristel would not live with it and he would move the plant to North Carolina within 3 months, and we would be out on, the street, out of a job." She further affirmed that, referring to the aforementioned notice (G.C. Exh. 15) posted on the bulletin board, Smith said that if the-Teamsters came in the work would go - back to 40 hours but if the Graphic Arts Union got in,-it might go down to 3 days a week; Finally, respecting the reinstatement fee, Smith stated that he would pay that amount ($25) out of his own pocket if anyone wanted to rejoin the Teamsters Union. - Betty Sue Clabough, an employee in the comet depart- ment, affirmed that Smith stated in a meeting around the first of March that Kristel-could not "live with" the Graphic Arts Union, and - there was the possibility of cutting the workweek to 4 days and possibly 3 days per week if the Graphic Arts Union was voted in. She further affirmed that Smith promised to pay the initiation fee of the Teamsters Union to anyone who wished to rejoin but did not have the money. With respect to moving the plant, she testified that Smith stated that the Company had a place picked out in North Carolina "all ready and waiting," and that they might move if the Graphic Arts Union was voted in. Smith testified that on the -issue of plant removal, he -explained that to the best of his knowledge - emphasizing that he was not a lawyer - he doubted if the plant could,be moved during union negotiations; however, he stated that it was owned by an individual, and he="could do with his company as, he pleased, when he pleased." He denied, however, telling the group- that the Company would be moved if they voted for one union rather than the other - that they should vote for the Union of their choice. He stated that he,, told the employees that $6 per hour, (which the `Graphic Arts Union was assertedly seeking) was an impractical wage figure in the envelope industry and doubted that Kristel could pay that kind of wage and stay in business. With respect to the union dues issue, hestated that someone asked the question whether an employee- who wished to rejoin the Teamsters Union would have to pay an initiation fee again., He responded that he did not know, but that "if this was going to keep somebody, from rejoining a 17 DStefano-emphasized that she distinctly recalled this remark because 1 See G.C. Exh. 15. It was in response to a question from herself 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union of their choice . . . [he] would take care of that for her." Smith denied that there was any discussion concern- ing the working hours of the employees in the plant during these meetings but admitted that General Counsel's Exhibit 15 was posted in the plant on or about March 4. He averred that the reason for the posting was because the Company was having very poor sales, but that the short workweek was never placed into effect because the Company was told by the Teamsters Union that it was a violation of the contract for the Company to reduce the workweek since the contract guaranteed a 40-hour workweek. After a consideration of all of the testimony as to what occurred respecting the meetings held by Plant Coordinator Smith with the employees in the three aforementioned departments, I am convinced and therefore find that such remarks contained the following threats and promises of benefit all of which constituted violations of Section 8(a)(2) and (1) of the Act: (1) the threats to move the plant, with the resulting loss of jobs to the employees, if they favored the Charging Party; (2) the promise of a pay raise if they favored the Teamsters Union; (3) the promise to pay the reinstatement fee on behalf of any employees who needed it in order to rejoin the Teamsters Union; and (4) the threat to cut back the workweek if the employees joined or retained their adherence to the Charging Party (but to maintain or restore the existing workweek if they favored the Team- sters).19 - John Lee Smith, an employee in the letterhead depart- ment, credibly testified that he had a conversation with Smith in the darkroom area during the last part of February. In that conversation, Allen Smith told John Lee Smith that if the Graphic Arts Union came in, it would put a lot of people out of work. He stated that Respondent was an independently owned company, and that they could shut down and move the plant if the Graphic Arts Union came in.20 I find the foregoing threat to constitute an additional violation of Section 8(a)(2) and (1) of the Act. 3. By Night Foreman Osvaldo Aponte Around the middle of February, Aponte asked employee Woodard Rains if the latter was going to the meeting at the Scottish Inns. Rains advised that he did not know anything about it; whereupon, Aponte stated that he (Aponte) rs There were no records or other documentary evidence adduced to support the Respondent's defense that the threatened cut of hours was caused by a slowdown in sales (and therefore production). It is true that an employee Shirley Kampes testified that at the time the notice was put up work was "a little slow." However, she also testified that it had been slow before. In any event, it was the threat uttered by Smith which constitutes the violation. There is nothing in the record to show that he ever advised the employees that, as Respondent contends , the,notice was removed because it was later learned by Muchnick that it constituted a violation of a provision in the existing collective-bargammg agreement with the Teamsters which guaranteed a 40-hour workweek to the employees. 20 Allen Smith denied that he had any 'conversation with John Lee Smith in a darkroom with respect to union matters. He recalled that after some of the group meetings, several people came to see him in his office and he remembers John Lee Smith as being in his office; however, he did not recall whether the latter was alone or with other people. He denied telling John Lee Smith that the advent of the Charging Party would result in people being put out of work. Such denial is not credited. 21 Testimony of Rains. Aponte acknowledged that he was aware - by virtue of seeing some pamphlets in the plant - of a meeting at the Scottish Inn for the Graphic Arts Union However, he denied asking Rains anything "might be up that way sometime that night." 21 I find that the foregoing statement of Aponte constitutes a threat of surveillance of, union activities, in violation of Section 8(a)(1) of the Act. On or about March 3 or 4, Aponte approached employee Walter Duncan at his machine, following a union meeting on or about March 2. Aponte asked Duncan what the employees were asking for - more money or more holidays. Duncan replied that "we were in no position to do any bargaining at that time.1122- I find the foregoing statement of Aponte to constitute unlawful interrogation concerning employees' union activities, in violation of Section 8(a)(l) of the Act. 4. By Traffic Manager Thomas Fitzpatrick On or about March 5, Fitzpatrick, an admitted supervisor in the shipping department, told employee Kenneth Lee Phillips that if the employees voted in the Teamsters Union, they would get a 50-cent-per-hour raise and a paid holiday the first year, and a 15-cent-per-hour raise and a paid holiday for both the second and third year of the contract. Fitzpatrick requested that Phillips pass this information to the remainder of the employees, and further advised that if they did not vote the Teamsters in, "they" would shut the plant down.23 Fitzpatrick was not called as a witness, and his failure to testify is unexplained on the record. Under these circumstances, it is not only warranted to credit the uncontradicted testimony of Phillips, but also to infer that had Fitzpatrick been called as a witness, his testimony would have been adverse to the interests of Respondent 24 I find the foregoing promise and, threat to constitute illegal support and assistance to the Teamsters Union, in violation of Section 8(aX2) and (1) of the Act 25 In the same conversation, Fitzpatrick told Phillips the only reason the notice concerning the 32-hour workweek (hereinabove referred to) was posted was "because they were made, and [he] said that if they voted the Teamsters in, they would take the 32-hour week off and make-it a 40- hour workweek.26 About the middle of March, Fitzpatrick spoke to employ- ee. Jerry Lee Day in the shipping department of the plant. Fitzpatrick inquired whether Day had heard about the raise that the employees were supposed to get: to wit, a 50-cent- about the meeting, and, indeed, denied discussing the Union with any employee. The, credibility resolution on this aspect ofthe case has been exceedingly difficult. It may very well be that' Rams held a bias against the Company because he was discharged in April; on the other hand, Aponte was not impressive as a witness. Under all circumstances, I am unable to believe that Rains fabricated the conversation; and I therefore credit his testimony over Aponte's denial. 22 Testimony of Duncan. Aponte denied speaking to Walter Duncan about the Union. This testimony is not credited. 23 Testimony of Phillips. 24 N.L.RB. v. M. J. Prrolli & Sons, Inc., 80 LRRM 3170,68 LC par. 12, 843, (C.A. 1, 1972), enfg.194 NLRB 241, 246 (1971), and cases cited therein. 25 The last phrase of Fitzpatrick's statement is admittedly ambiguous since he did not specify who "they" were. However, in context, it seems reasonable to infer that "they" referred to the management of Respondent and not the Teamsters Union. 26 Credited testimony of Phillips. I find the foregoing statement of Fitzpatrick to constitute an additional promise of benefit to the employees if the latter , supported the Teamsters Union in violation of Sec. 8(aX2) and (I) of the Act. BUSINESS ENVELOPE MANUFACTURERS 289 per-hour raise and a holiday the first year, and a 15-cent- per-hour raise and a holiday for both the second and third year. Fitzpatrick advised, however, that this was condi- tioned upon- the Teamsters- Union retaining representation rights in the plant. Day inquired of Fitzpatrick what would happen if the Teamsters did not prevail, to which the latter responded, "The company - would fight the union, the Graphic Arts, he said if they could not beat the union they would close the plant and move it. He did mention moving it to either North or South Carolina. >27 I find the foregoing promise of benefit if the employees favored the Teamsters Union, and threat of reprisal if they did not, to constitute an additional violation of Section 8(a)(2) and (1) of the Act. 5. By Ira Kristel Kristel, president of Respondent, maintains his principal office in New York. He testified that he came to Clinton in the latter part of March and spoke to about five or six groups of employees for about 15 to 20 minutes each. He spoke extemporaneously, and made essentially the same remarks to all the groups, and then opened the floor for questions. Kristel testified that, in his opening remarks, he advised the employees that he was "not antiunion, that he had been unionized for many years in New York and that he could live with many unions ... however, the demands of the Lithographers were so unrealistic that economically the company could not survive." He went on to point out that the Company was competing with other envelope manufac- turers and not newspapers.28 Kristel pointed out that there formerly were approximately 13 newspapers in New York City and now there were only three, and that the reason was that the Unions had effectively put them out of business. In making this statement he admittedly made particular reference, to the Charging Party. Kristel .stated that in every meeting someone asked about the issue of.plant removaL He testified that he told the employees he had no intention of moving the plant but that, on the other hand, the demands of the Charging Party were so unrealistic that he did not think the Company could not economically survive; that there was no law that said he could not move, but that he had no intentions of doing so; however, he also had no intention of going broke.29 Kristel admitted telling the employees that they would get a 50-cent-per-hour wage increase if the Teamsters were elected, but if the Charging Party were elected, bargaining would'' commence from scratch and the 50-cent increase would not apply. I find the foregoing promise of benefit to constitute illegal support and assistance to- the Teamsters Union, in violation of Section 8(a)(2) and (1) of the Act. Later that day, Kristel asked Betty Sue Clabough to come with him into the Webb department office. No one else was present. Kristel inquired why she was involved with the Union - what she wanted. Clabough advised that she 27 Credited testimony ofDay. 28 The literature distributed by the Charging Party in the campaign referred to the wages received by its members who worked for the Knoxville News Sentinel. That member received $636 per hour whereas the wage earner at the Respondent's plant received $2.40 per hour. 29 Several employees, witnesses for the General Counsel, testified that Kristel threatened to close the plant down and/or move if they voted in the Charging Party. See, e.g., testimony of Walter Duncan and Effie Mae wanted more money for what she was doing. Kristel testified that he was interested in fording out whether there were other things important to the employees aside from economic considerations. When Clabough advised him as aforesaid, he said, "Okay, at least I understand where we stand." 30 I find the foregoing interrogation, which took place in the sanctum of a supervisor's office, without any legitimate purpose or assurances against recrimination , to constitute interference with employee rights guaranteed in Section 7 of the Act, in violation of Section 8(ax l) of the Act. 6. The negotiations between the Respondent and the Teamsters Union As previously set forth, the collective-bargaining agree- ment between the Respondent and the Teamsters ran from May 1, 1972, through April 30, 1975. The record reflects that on December 6, 1974, the following letter was sent from George R. Clapp, secretary-treasurer of the Teamsters Union to Bernie Muchnick, plant manager of Respondent: Dear Mr. Muchnick: This will confirm the conversation in your office on December 4, 1974 between -the undersigned, Mr. Hubert L. Payne of Local 519, and yourself, and the several telephone conversations we had during the month of November in which we discussed the very dire need of your employees receiving a substantial wage increase in the forthcoming contract negotiations. These conversations, of course, are premature, in so far as contract negotiations are concerned, since the present agreement does not expire until April 30,1975. However, it is our feeling -that this information should be relayed to Mr. Ira Kristel so that he can be prepared for the contract proposal which will be forthcoming. Mr. Muchnick, it is our hope that negotiations can be completed early so that the new contract and wages can go into effect immediately without the need for retroactivity. Since the previous contract was negotiated under adverse conditions everyone expects a much better contract with a substantial wage increase this time. For the reasons mentioned above we respectfully request that you relay this information to Mr. Kristel so that he will be prepared to sit down and negotiate in earnest when he comes into Knoxville. The events which occurred following the receipt of the foregoing letter are somewhat vague and indefinite in the record. Muchnick testified that he had several telephone conversations with representatives of the Teamsters some- time in January and February, and he "thought" that the DeStefano. On the other hand, Linda Bowling testified that Kristel did not threaten to move the plant at that meeting. Under all circumstances , I am not convinced that there is substantial evidence to find that Knstel threatened to close or move the plant in his speeches to the employees in March. 30 Kristel acknowledged that he called in Clabough because be under- stood that she and Marilyn Hansard were very strong with the Charging Party, but Marilyn Hansard was not at work that day. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president of the Teamsters Local came -to visit him once on union negotiations. However, there -was no exchange of written proposals by either party to the other during this period.31 On February 17, an official notice of .reopening was dispatched by the Teamsters secretary-treasurer to Muchnick as follows: .Dear Mr. Muchnick: This will officially advise you and your Company that Teamsters Local Union No. 519 desires to open the collective bargaining agreement between your company and this Local Union for the purpose of making certain changes and modifications in accordance with Article 39 of the existing agreement. We will appreciate you advising the undersigned of a- convenient date to meet for the purpose of discussing the forthcoming negotiations. Following this notice, there were further telephone discussions between Muchnick and the representatives of the Teamsters, and a meeting was arranged with Kristel present on or about March 1 at the Teamsters Hall in Clinton. It was at this meeting that the wage increases and paid holidays hereinabove referred to were agreed upon. Following that meeting, the Teamsters requested and were granted a meeting with employees at the Company's plant to be held on March 7 at 4 o'clock p.m. (which was during some of the employees' worktime) for the purpose of discussing contract negotiations (G.C. Exh. 14). I find such conduct on the part of the Company to constitute addition- al unlawful aid and assistance to the Teamsters in violation of Section 8(ax2)-and (1) of the Act 32 On March 24 a-notice was posted ow the Respondent's bulletin boards respecting the status of the Company's negotiations with the Teamsters , as follows: FROM: IRA B. KRISTEL, PRESIDENT TO: ALL ELIGIBLE UNION EMPLOYEES There seems to be some confusion among you regarding our union negotiations with the Teamsters that started back last November, 1974. Let me clear this up. Should the Teamsters win the election on April 2, my offer standsfirm and has been approved in the presence of the Teamsters Negotiating Committee . Major items approved as follows: 1. Wages - A three year contract-50¢ first year, 15e second year, l5¢ third year - While the new contract would start on 5/l/75, I have given my word as President to make the first year increase (500 per hour) retroactive for the week starting March 17, 1975. 31 No representative of the Teamsters Union testified at the hearing, although its secretary-treasurer was present throughout However, this statement should not be construed to mean that the burden of proof switched from the General Counsel to Respondent. See, e.g., H. Koch & Sons, 220 NLRB 1103 ( 1975). 2. The company will pay the full medical insurance- program regardless if an individual does not put in 40 hours. Furthermore, the incentive bonus of 54 per hour .for people who -put in 40 consecutive hours per week still stands. - 3. One additional Holiday will be added to each year of the contract. I will be down on Monday, 3/31/75, and will go through the plant to answer any questions to help clear up any misunderstandings. As previously indicated, a petition for an election was filed by the Charging 'Party with the Board on February 21. A notice of representation hearing on the aforesaid petition was issued on February 26 with copies served on all parties on that date. It is well settled that, in these circumstances, a real question concerning representation was raised to the extent that it was' wrongful and unlawful for the Respon- dent to continue and complete negotiations with the Teamsters subsequent to the filing of such petition. Such conduct clearly constituted unwarranted and illegal assis- tance and support to the Teamsters Union , in violation of Section 8(aX2) and (1) of the Act.33 H. THE REMEDY Having found that Respondent engaged-in unfair labor practices in violation of Section 8(a)(1) and (2) of the Act, I shall recommend that the Respondent be directed to cease and desist -therefrom, and to take certain affirmative action designed to effectuate the purposes of the Act. A major issue in the case is whether a bargaining order in favor of the Charging Party is appropriate in the circumstances. Respondent vigorously argues that such an order would not be appropriate in this case where there are "two bona fide labor organizations, both of which are seeking recognition with regard to the same unit of employees." 34 It is further argued that this is especially so where one of the two vying unions is an incumbent, which enjoys a presumption of majority representation through the life of the contract (Respondent's brief, citing Barrington Plaza and Tragniew, Inc., 185 NLRB 962, 963 (1970). Finally, Respondent argues, a bargaining order in favor of the Charging Party would be punitive rather than remedial in nature since it would dictate the employees' choice of representation. Counsel for the General Counsel did not seek a bargain- ing order as part of the remedy in this case on the grounds that. "the evidence was insufficient to establish that the Teamsters actively sought the Respondent's assistance or actively participated in conduct sufficiently unlawful to negate it's status as a bona fide incumbent union with a legitimate interest in representing the employees."35 How- ever, it is noted that no authority is cited by counsel for the 32 See, e.g., Hermet, Inc., 222 NLRB 29 (1976). 33 Hermes, Inc., supra and cases cited. 34 Respondent's brief. 35 G.C. brief. BUSINESS ENVELOPE MANUFACTURERS 291 General Counsel in support of his position, and have not discovered any through independent research.36 The Charging Party vigorously contends that a bargain- ing order is the only fair andeffective remedy in view of the flagrant and extensive unfair labor practices engaged in-by Respondent- following the filing of its petition 37 After a consideration of all the evidence in the record, including arguments of counsel, I am convinced, and therefore ford, that a _ bargaining order in favor of the Charging Party is the only fair and effective remedy which can be applied within the framework of the statute to the facts in this case. Thus, there is, presented here a situation where an employer, assertedly faced with competing claims of two labor organizations, immediately embarks upon an egregious campaign of threats of economic retribution should his employees favor the Union which he opposes, and promises of benefit to them should they adhere to the Union which he favors. "Such conduct, as set forth herein- above, ranged the spectrum of conduct violative of Section 8(a)(2) and (1) of the Act, making a free choice in the election of April 2 impossible.38 The record herein establishes that, as of the time of the filing of its petition, the Charging Party had an uncoerced majority of the employees in the unit 39 Thus, on February 21, it had signed authorization cards from 94 employees4o in a unit of approximately 135 employees 41 The language of the Board in Brescome, supra, justifying a bargaining order is singularly appropriate to the factual situation in the instant case: An employer, faced with a competing representation claim, quite properly should be protected from a union's refusal-to-bargain charge, even where that union is able to demonstrate a card majority, in a situation where he evidences his neutrality by maintain- ing the status quo while the question concerning representation is being determined by the Board. But it is foreign to the basic concept of the rule to invoke it as justification for a refusal to bargain in a situation where, as here, the employer, instead of remaining neutral, takes sides, and engages in unfair labor practices aimed at assisting and supporting the union he favors, and utilizes this as a means of dissipating the majority of the rival union to which he is opposed. In this situation, to excuse the refusal to bargain and deny the remedial relief of a bargaining order could serve only to exalt the 36 Respondent submitted concomitantly with the filing of its brief a motion to reopen hearing for the purpose of placing into evidence a ruling of the General Counsel in which the latter declined to issue a complaint under Sec. 8(a)(5) of the Act, in this case. Such motion is dewed as lacking in merit since such ruling by the General Counsel would be irrelevant to the issues in the case, which are, of course, framed by the complaint which is issued by the General Counsel. To the extent such motion is bottomed on the so-called Freedom of Information Act, there is no showing that Respondent has complied with the proper procedures before the General Counsel and/or the Board which are conditions precedent to securing such information. 37 Prior to and at the hearing, the Charging Party filed a motion to amend complaint and notice of intent to request bargaining order (G.C. Exh. 1(k)). The motion to amend the complaint to include allegations bearing upon the Respondent's obligation to bargain collectively with the Charging Party was denied on the ground that final authority with respect to the issuance of complaints is with the General Counsel, and the General Counsel objected to the Charging Party's motion in this case. However, the Charging Party was -letter of the rule whilestultifying its purpose, and would leave the victimized union without- a truly effective remedy. Since the. recent decision of the Supreme Court in the Gissel case, the legal touchstone for a bargaining order is whether the employer has engaged in unfair labor practices of such a character as to preclude a fair election and to permit a fording that a majority established by -cards 'is more reliable tha[n ] an election as the indicator of employee desires. In -this case the Trial Examiner found that the nature and effect of Respondent's unlawful demonstration of its favoritism to the Association, coupled with its dire prediction of adverse consequences, which might be expected if the Union should be selected and attempt to bargain with Respondent, was such as to prevent the possibility.of a fair election. , We agree, and upon the basis of the Union's demonstrated card majority ford that Respon-, dent violated Section 8(a)(5). 3.. We also further find upon a consideration of the entire record, and in agreement with the Trial Examin- er, that, apart from the violation of Section 8(aX5), an order directing Respondent to bargain with the Union, upon request, is necessary to remedy the effects of its other unfair labor practices. The record establishes that the Union had a majority when the Respondent began its course of unfair labor practices directed at destroy- ing this support. The subsequent diminution of support, as revealed by the Union's loss in the election, can only be attributed to Respondent's unlawful conduct. There- fore, we shall order Respondent to bargain, upon request, with the Union not only to remedy its violation of Section 8(a)(5) but also its violations of Section 8(a)(1) of the Act. [footnotes omitted.] I have also taken into consideration in resolving this issue the history of Respondent's relationship with the Teamsters prior to the statutory 6-month limitation period, for the assistance that it provides in evaluating the events which occurred within that period (Brescome, supra). I note that the Teamsters was voluntarily recognized by the Respon- dent, and there is a dearth of evidence in the record respecting activities or involvement of the Teamsters in the affairs of the employees from 1972 for approximately 2-1/2 years until the events in this case. One witness (Jerry Lee Day) testified that he worked for the Company for almost a allowed to introduce evidence relating to its claim of majority status at the time of its filing of the petition, so that the record would be complete before the Board who has primary responsibility with respect to the appropriateness of a remedy in the matter. (See, e.g., 7-tidee Products, Inc., 196 NLRB 158). 38 See The Brescome Distributors Corporation, 179 NLRB 787,788 (1969); Lawrence Rigging, Inc., 202 NLRB 1094 (1973); Overland Distribution Centers, 194 NLRB 727 (1971). 39 The appropriate unit, agreed upon by the parties and approved by the Regional Director in Case 10-RC- 10261, is: All production and maintenance employees employed by the Respondent at its Clinton, Tennessee, facility, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 40 There were 98 cards received in evidence, but 4 were dated subsequent to February 21. 41 This the number of eligible voters at the election, according to the Regional Director's report (G.C. Exh. 2(a)). 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year before he knew that the employees were represented by a union. Moreover, Muchnick testified that, until the events in this case, he did not know that Ann Martin was a steward for the Teamsters Union. Such dormancy on the part of the incumbent union may well explain the interest of the employees in seeking another labor organization to represent them. In view of the flagrant and pervasive nature of the unfair labor practices, I shall recommend a broad cease-and-desist order. Highland House Nursing Center, Inc., 222 NLRB 134 (1976); Lawrence Rigging Inc., supra. The Objections to the Election The evidence, as set forth hereinabove, occurring subse- quent to the filing of the petition and prior to the election, provides ample support for a finding that the Charging Party's objections should be sustained. Accordingly, I conclude and find that the election conducted by the Board on April 2 should be set aside. However, in view of my finding that an order to bargain in favor of the Charging Party should issue, I will not, of course, direct that another election be held. Rather, I willrecommend that the petition in Case 10-RC-10261 be dismissed, unless it is withdrawn. CONCLUSIONS OF LAW 1. Business Envelope Manufacturers ofTennessee, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 234, Graphic Arts International Union, AFL- CIO, and Teamsters Local Union No. 519, Knoxville and Vicinity, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and each of them, are labor organizations within the meaning of Section 2(5) of the Act. 3. By the acts and conduct of its agents and supervisors described above, Respondent -has interfered with the administration of a labor organization and contributed assistance and support to it, in violation of Section 8(a)(2) of the Act. 4. By the foregoing, and by engaging in other acts and conduct described above, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]