Arkay Packaging Corp.

ARKAY PACKAGING CORPORATION Arkay Packaging Corporation andLocal 51, New York Printing Pressmen & Offset Workers, Internation- al Printing:-,& -Graphic- Communications Union, AFL-CIO ,and Local: No. 23, New, York Printing Assistants and Offset Workers, International Print- ing & Graphic Communications Union, AFL-CIO and Local 1, International Printing & Graphic Communications Union, AFL-CIO. Cases 29-CA- 4222, 29-CA-4282, and 29-CA-4332 December 17, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 6, 1976, Administrative Law Judge James L. Rose issued the,attached Decision in this proceeding., Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm only so much of that Decision as is ' consistent with this Decision and Order. We find no 'error, however,' in his rulings on evidentiary or procedural` matters. - We do not agree with the Administrative Law Judge that Respondent's refusal to negotiate new contracts with each of the Charging Parties violated Section 8(a)(5) of the Act. Respondent rejected each Union's request for negotiations on the ground that it no longer represented a majority of employees in the bargaining 'unit which it represented. Although con- cluding that-'the circumstances obtaining at the time "reasonably cast serious doubt on each Union's continued majority status," the Administrative Law Judge nevertheless found violations on the ground that the General Counsel had demonstrated that each Union in fact continued to represent a majority in its bargaining unit. No exceptions have been taken to the Administra- tive Law Judge's finding to the effect that a reason- ably based doubt existed as to the, majority status of each Union, and we adopt'this finding. But we need not, and do not, 'rely entirely on the absence of exceptions as a reason for adopting this conclusion of the Administrative -Law Judge. We find it to be completely justified by the record, a view which the General Counsel apparently shares as evidenced by his failure to except. The following recapitualation-by ' Respondent claims, and the Administrative Law Judge's Decision indicates, that some positions once held by strikers may no longer exist 227 NLRB No. 59 397 the Administrative Law Judge demonstrates this supportive evidence: Having had status as the recognized bargaining agent for the employees in its respective unit, each Union had a rebuttable presumption of continued majority status. I conclude, however, that events following July 1, 1974, rebut the presumption. After the employees began honoring the Local 119B picket line, the Respondent wrote each Union to the effect that its members would be replaced. These communications went unan- swered. Thereafter, the Respondent in fact hired replacements. Importantly, none of the three Unions made any effort to contact the Respon- dent or to police its collective-bargaining agree- ment after July 1974. It is reasonable to conclude that none of the three Unions in fact had been designated by any of the replacements, nor is there evidence to the contrary. This and their apparent lack of interest for several months reasonably cast serious doubt on each union's continued majority status. The dissent offers nothing that refutes the factual basis for this conclusion or its logic. Surely, the fact that the Unions appeared between January and April 1975 to request negotiation of a new contract-after many months of silence by both the striking employ- ees and the Unions and,without anly,expression or claim by the Unions of support by the strikers or an indication even that those employees, long since replaced, _ had any interest in further employment with Respondent-cannot be regarded as an assur- ance to Respondent by the Unions of their represen- tative status in the bargaining units involved. It is equally clear that, not having heard from the 17 or 18 strikers themselves since July 1974, Respondent could reasonably question both the measure of their support for the Unions as well as their interest in reemployment within the bargaining units. As for the 1I striker replacements,i we would not, contrary to the dissent, charge Respondent, in fact or in law, with a belief that. they desired representation by the Unions. The dissent would do so on the theory that "the Board has long held that new employees will be presumed to support a union in 'the same ratio as those whom they have replaced." This'presumption has been held to obtain in the normal turnover situation, such as is found in Laystrom Manufacturing Co.2 -which the dissent cites. But, in the strike situation present in this case, it would be wholly unwarranted and unrealistic to presume as a matter of law that, when hired, the replacements for the 2 151 NLRB 1482(1966). 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union employees who had gone out on strike favored representation by the Unions to the same extent as the strikers.3 The facts certainly would not support such a presumption. And since the replacements' hiring, no more - has been heard from- them to demonstrate any degree 'of union -support than -has been heard from the strikers. There is, therefore, at least as much justification for not indulging in a presumption that the replacements favor the Unions and for finding that Respondent had reasonable grounds for not believing that to be so, as there is for finding, as we have, that it was reasonable for Respondent to question the continued union adher- ence of the striking employees. In all the circumstances, we are satisfied that Respondent did have an objective basis for a reason- ably based , doubt -- as to the Unions' continued majority status. Establishment of this reasonably based doubt constitutes a complete defense to the allegations of unlawful refusals to bargain herein and it is unneces- sary to proceed to ascertain whether each Union in fact enjoyed majority status.4 In the words of the Court of Appeals for, the Sixth Circuit in N. L. R. B. v. Dayton Motels, Inc., d/b/a Holiday Inn of Dayton: 5 [E]ven if the Union is proved to be actually, representative of a majority, the employer is not guilty of a Section 8(a)(5) violation if the employer had a reasonably-grounded belief that the Union '-did not represent an uncoerced 'majority of its employees... - . A good-faith doubt exculpates the employer even if the'Union in fact represented a majority of the employees. We shall therefore dismiss the complaint in its entirety. ORDER- Pursuant to Section 10(c) -of the National Labor Relations Act, as amended, the National Labor Relations Board, hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: For the following reasons ,.1 disagree with my colleagues that the Respondent has established a legally sufficient defense to the instant refusal-to- bargain charges. 3 See, for example, the Board's observation in Peoples Gas System, Inc., 214 NLRB 944,947 (1974), that: While it is of course possible that the replacements , who had chosen not to engage in the strike activity, might nevertheless have favored union representation, it was not unreasonable for Respondent to infer that the degree of union support among those employees who had chosen to ignore a Union -sponsored picket line might well be somewhat Briefly, the record shows that in 1974 Locals 51, 23i and 1, each admittedly representing -an appropriate unit of the Respondent's" employees, executed 1-year contracts which were to- expire on, March - 3, 1975 (Local 51), and-April 30, 1975 (Locals 23 and 1). In July 1974, following execution of these agreements, virtually all of the member-employees represented by the three Unions engaged in economic strike activity, and, upon notice to their respective Unions, Respon- dent replaced the strikers. Apparently, only one of the strikers returned to work behind the Unions' picket line and he continued to pay union dues. The Unions neither responded to the Respondent's letters warning of replacement, nor appeared to assert an active role in policing their bargaining agreements, each of which contained union-security provisions. Indeed, there is no evidence that any of the 11 or so,, individuals - who replaced the 18 nonsupervisory member-employees became union members. Nor is there evidence to the contrary. ' - - In any event, between January and April 1975, each of the Unions served timely notice of its desire to negotiate a new agreement. In response to these demands, the - Respondent notified each Union- Local 51 on February 4, Local 23 on March 25, and Local 1 on April 22-that it was withdrawing recognition because "valid, objective considerations" indicated that ` none, of the Unions represented a majority. Thereafter, each Union filed the instant 8(a)(5) and (1) charges. Of course, at the time of the withdrawals- of recognition, none of the three contracts had expired. Thus, during this time each Union was entitled to a rebuttable presumption of continued majority status. See, e.g., Shamrock Dairy, Inc., 119 NLRB 998, 1002 (1957), and 124 NLRB 494 (1959), enfd: 280 F.2d 665 (C.A.D.C., 1960); cert. denied 364 U.S. 892. Such midterm withdrawal of recognition establishes a prima facie case of unlawful 8(a)(5) misconduct. And to rebut the presumption of majority status, an employer must affirmatively establish that the union in fact no longer represented a majority, or that,its refusal was predicated upon objective circumstances justifying a reasonable doubt of the union's majority status. See, e.g., Terrell Machine Company, 173 NLRB 1480, 1480-81 (1969), enfd. 427 F.2d 1088 (C.A. 4, 1970). As shown here, the Respondent rested its weaker than the support offered by those who had vrgotously engaged in concerted activity onibehalf of Umon-sponsored objectives. This view is as valid in the circumstances of this case as it was in Peoples Gas even if, as the dissent asserts, the facts are not identical. 4 Bartenders, Hotel, Motel and Restaurant Employers Bargaining Associa- tion of Pocatello, Idaho, 213 NLRB 651(1974). 5 474 F.2d 328, 331-332 (1973). ARKAY PACKAGING CORPORATION defense on the Celanese rule-that is, a reasonable doubt based on valid objective considerations .6 But, while fairly articulating the Respondent's defense in accord with the foregoing familiar princi- ples, the Administrative Law Judge erred in describ- ing the General Counsel's burden in meeting the Respondent's asserted good-faith doubt. As my colleagues point out, the Administrative Law Judge's error stems -from his literal interpretation of Taft Broadcasting, WDAF-TV, AF-FM, 201 NLRB 801 (1973). As subsequently interpreted by this Board, it is now clear that under Taft the General Counsel does not bear the burden of proving actual majority status, but rather it is the Respondent who must establish the existence of those valid objective considerations on which its doubt is based. See, e.g., Bartenders, Hotel, Motel and Restaurant Employers Bargaining Associa- tion, supra. In sum, as the Respondent correctly notes in its brief, the question is not whether each Union enjoyed a majority status, but whether its "doubt of majority- status was in `good faith' 7 and was based on valid `objective considerations,' " as,the Respondent asserts it was. And although misapplying Board precedent elsewhere in his Decision , at the outset of his analysis the Administrative Law Judge recognized that, aside from actual majority standing, the remain- ing question was whether, "in any event, the Compa- ny did not haYe valid objective reasons for withdraw- ing recognition." That is the question -before us, and, in my view, the majority has failed to provide a legally,sufficient answer: The thrust of the Respondent's contention is that "none of the 3 Unions attempted to have any contact with the -[Respondent ] for over a six month period after the replacements had occurred ." However, it is abundantly clear that, at the critical time when, in February, March, and April, the Respondent with- drew recognition, the Unions had duly notified the Respondent of their desire to negotiate new contracts to replace the 1-year agreements. Thus, the record itself refutes the Respondent's contention that the Unions had abandoned interest in the units. The' Respondent further asserts that there is no evidence that the -11 employees who replaced the 18 striking employees became union members, or were required to do so. But the Board ,has long held that new employees will be presumed to support a union in the same ratio as those whom they have -replaced. See, e.g., Laystrom Manufacturing Co., 151, NLRB 1482, 1484-85 (1966)_ And, aside from its suspicions 6 Celanese Corporation ofAmenca 95 NLRB 664, 671-672 (195,1). Indeed, while the Respondent asserted that none of the Unions represented a majonty of the employees, in its brief it maintains that inquiry into the actual representative status (or lack thereof) of each Union is irrelevant in disposing of the issues at hand. Moreover, the Respondent attacks the Administrative Law Judge's efforts to establish the actual majonty status of each Union as "speculation," and beyond the issues as framed. As explained more fully 399 regarding the 6-month hiatus before the Unions demanded new negotiations, supra the Respondent has offered no evidence to rebut this presumption. Nonetheless, my colleagues decided not to "hold the Respondent to a belief that the 11 replacements desired representation by the Unions," in part because this is not a "normal" turnover situation, relying on Peoples Gas System, Inc., 214 NLRB 944 (1974). But this logic is faulty for two obvious reasons: First, the test applicable here is the validity of the Respondent's objective reasons for doubting the Unions' majority status in rebutting the presump- tion, and not its subjective reasons for asserting that the presumption does or does not apply. For the presumption applies as a matter of law, and the Respondent assumes the- burden of rebutting it. Second, the majority's- reliance on Peoples Gas is misplaced. There the Board noted that turnover following an unsuccessful strike raised a mere infer- ence of loss of majority which became an objective consideration only when coupled with additional "tangible" evidence that union financial support had dropped sharply; the composition of the bargaining unit had changed substantially under- circumstances indicating a decline in union support; and a radical change in bargaining strategy revealed a total lack of confidence in the -union. None of the foregoing attendant- circumstances is present in this case to provide some evidentiary basis for the -turnover consideration. And without conceding the point, if, as the majority, suggests, turnover following an unsuc- cessful strike is alone sufficient to overcome the Laystrom presumption, I believe that it is important to note that in the instant case only one of the strikers returned to work;- whereas in Peoples Gas apparently a substantial number of the striking employees broke rank and returned to their jobs.In sum, without some firm evidence of employee dissatisfaction with their present bargaining representatives, I find nothing in this record to suggest that the incumbent employees were less desirous of union representation than were the employees they replaced. Compare Peoples Gas, supra. - In my opinion, it is one thing to say that a presumption of majority status has been successfully rebutted and quite another to suggest, as do my colleagues, that each Union- was not even entitled to the, benefit of the presumption in the. first place. Under the latter approach the whole purpose--of the presumption is negated because it shifts the whole below, I agree that the Respondent was neither required to establish in defense of its conduct, nor has established, that the Unions no longer represented a majonty in their respective units. 7 Although even the Board continues to employ the term "good faith," it is plain from the decisions that what is meant is "reasonable" doubt, and not the subjective state of mind of the employer. 400 DECISIONS OF "NATIONAL LABOR RELATIONS BOARD burden of proof from the one charged with rebutting the presumption to the one seeking to claim it. The unreasonableness of this standard perhaps can best be demonstrated by the way the majority has applied it to the economic strikers vis-a-vis the striker replace- ments. In denying each Union the presumption of majority status on the basis of the contract, the majority points to circumstances which they believe demonstrate a lack of interest among the economic strikers in further representation by the Union or in continued employment with the Respondent. But, when it comes to dealing with the union sentiments of the striker replacements, they are quite willing to presume that a majority of such individuals would not have supported the Unions even though there is absolutely no affirmative evidence upon which to base this conclusion or for that matter the reverse of it.s If this is to be the manner in which my colleagues henceforth will determine the applicability of _ the presumption of continuing majority status on the basis of contract, then the value of the presumption is, to say the very least, seriously impaired. Simply stated, the Respondent has failed to present valid objective considerations sufficient to support a reasonable doubt of each Union's continued repre- sentative status. Accordingly, I find that the Respon- dent has failed and refused to bargain with Locals 51, 23, and 1, as found by the Administrative Law Judge. 8 I would think that if the majority is going to indulge in the speculation that the striker replacements are opposed to each Union ; they would give equal recognition to the fact that economic strikers are considered to be included in the unit for all purposes absent specific evidence that they have abandoned their employment . See C H. Guenther & Son, Inc , d/b/a Pioneer Flour Mills, 174 NLRB 1202 ( 1969) If the economic strikers here were counted as part of the unit, as they should be, then there would be nothing to warrant the conclusion that the Respondent had a reasonable doubt as to each Union's continuing status as majority representative. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard on December 1 and 2, 1975, in Brooklyn, New York. In general terms, theGeneral Counsel alleged that the Respondent withdrew recognition of, and refused to bargain with, the three Charging Party Unions when their respective contracts expired in 1975 , in violation of Section 8(a)(5) of the National Labor Relations Act, as amended. An-independent 8(a)(1) violation is also alleged. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I make the following: FINDINGS OF FACT A. The Business of :the Respondent The Respondent is a New York corporation maintaining its principal office and place of business at 22 Arcade Drive in the town of Hauppauge, County of Suffolk, State of New York, and is engaged in the manufacture , sale, and distribution of paper cartons, wrapping materials, labels, and related products . The Company produces and distri- butes products valued in excess of $1 million, of which products valued in excess of $50,000 during the preceding year were shipped from its facility in interstate commerce directly to points outside the State of New York. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. B. The Labor Organizations Involved The Respondent admits, and I find, that Local 51, New York Printing Pressmen & Offset Workers, International Printing & Graphic Communications Union, AFL-CIO; Local No. 23, New York Printing Assistants and Offset Workers, International Printing & Graphic Communica- tions Union, AFL-CIO; and Local 1, International Print- ing & Graphic Communications, AFL-CIO , are labor organizations within the meaning-of Section 2(5) of the Act. C. The Alleged Unfair Labor Practices By way of background, the findings set forth in Arkay Packaging Corporation, 221 NLRB 99, ALJD (1975), are noted. The factual situation surrounding that case is antecedent to the instant matter. Briefly, the Company is involved in the manufacture of cartons and other paper products, and for a number of years its employees have been represented by seven different unions with whom it negotiated collec- tive-bargaining agreements . Unitl 1974 the Company had belonged to the Printers' League Section of the Printing Industries of Metropolitan New York which organization negotiated contracts with the three Charging Party Unions as well as Local 119B, Graphic Arts International Union, AFL-CIO, the charging party in the referenced case. In 1974, the Respondent gave timely notice of its withdrawal from the employer association and thereafter had separate negotiations at least with the three Charging Party Unions and Local 119B. The Respondent does not dispute that it entered into 1- year contracts with each of the three Charging Party Unions in the spring of 1974, the agreements expiring in March and April 1975.1 Apparently, the Respondent was unable to reach a similar agreement with Local 119B during negotiations in 1974 and on. June 10, 1974, members of Local 119B engaged , in an economic strike and placed picket signs at the plant gate. 1 Local 51's contract expired March 3, 1975; Local 23's contract expired April 30,1975; and Local 1's contract expired April 30, 1975. ARKAY PACKAGING CORPORATION For a short time members of the three Charging Party Unions crossed the picket line and continued to work. However, during this period there were a number of incidents, including employees being called "scabs" on crossing the picket line. Each of the employees who testified at 'the hearing also stated that on one or more occasions they had found nails in the tires of their respective cars. Some employees received anonymous calls wherein gener- alized threats against them and their families were made. There was a meeting at which Vice President Bates told the employees that the Company would do everything in its power to protect them and their property when they came to work. The Company also hired a private protection agency and on occasions there were Suffolk County police at the plant gate. During this period individual members of the Charging Party Unions contacted their respective business agents inquiring as to what they should do or what their rights were with regard to the picketing by Local 119B. Each business agent who testified in this matter stated that when such contact was made, his response was that the-Union had a contract with the Respondent which had to be honored and that any _ determination by the employee, presumably concerning whether or not to honor the picket line, would have to be an individual thing. Thus, on or about July 1, 1974, perhaps with notice- although there is some indication that it might have occurred spontaneously-members of the Charging Party Unions gathered before work in the parking lot of a lodge near the Company's plant. At this time there was a general discussion concerning what the employees should do. According to the testimony of the employees, it was determined by a majority of each of the union groups that they would cease working and honor the picket line. This fact was communicated then to their respective business agents, who, in turn, contacted the Company. Thus most of the members of Locals 51, 23, and I ceased working on or about July 1 and had not returned by the date of the hearing. The General Counsel alleges, and I find, that in ceasing work on July 1, 1974, the employees were in fact engaging in concerted activity and were in effect supporting the Local 119B strike. Thereafter, the Respondent sent a mailgram to each employee advising that, if he did not return to work by July 8, he would be permanently ' replaced. The same general communication was sent to each of the Charging Parties. There was then no contact between the employees or their Unions and the Company until sometime in 1975 when each of the Charging Parties wrote the Company advising that the contract was about to terminate and requesting a new contract. In each case the Company responded that inasmuch as there was substantial objective evidence that the Union no longer represented a majority of the employees in the particular bargaining unit, it would refuse -to bargain for a new contract. During the period following July 1974, at least one Local 51 member continued to work and the Company continued to make appropriate deductions from his wages for union dues, contributions to the vacation fund, and health and 401 welfare payments, all of which were remitted to the appropriate union trust account. There is also -credible evidence that following July 1, 1974, the Company commenced hiring permanent replace- ments. If not for specific members of Locals 51 , 23, and 1, at least- the new employees were hired for the job functions which had been performed by members of those unions. Also, the Company hired replacements for Local 119B members, all of which is set forth in more detail in the first Arkay decision, supra. The Company, however, on hiring replacements, did not notify any of the three Charging Party Unions that it had done so. Thus the Charging Parties had no way of knowing that new employees were working within the jurisdiction of their respective contracts . On the-other hand, the Unions did not inquire concerning whether or not there were replacements. In any event, the Unions did not police their respective contracts, which include union-shop clauses. Finally, in connection with these events, Local 119B filed a joint petition with a Teamsters local petitioning for a unit which appears to exclude the job functions performed by members of Locals 51, 23, and 1, although such an interpretation is open to question. One of the findings ofan unfair labor practice committed by the Company in connection with the first Arkay case, supra, is that the Company had recognized and bargained with an employee committee , found to be a labor organiza- tion, at a time when there existed a question concerning a representation based upon the joint petition filed by Local 119B and the Teamsters. The allegation of independent 8(a)(1) activity on the part of the Company in this matter is that a company agent tried to get an employee to quit his union and return to work. 1. Issue The principal issue here is whether, on these facts, the Respondent violated its obligation to bargain with the three Charging PartyUnions or any of them. Analysis There are two preliminary matters which the Respondent has brought into issue and which should -be disposed of. Julius Seide, the business agent for Local 51 , testified that in January 1975 he had a telephone conversation with Mr. Roche, a vice president and treasurer of the Company, concerning a request for negotiations. Roche denies ever having a conversation with Seide, and his counsel stated that at no time did Roche tell him about such a conversa- tion. While there is thus a conflict in this regard, it is concluded that whether or not a conversation such as described by Seide took place is not material to the resolution of this matter. Accordingly, no finding concern- ing it need be made. Locals 51 , 23, and 1, individually and in writing, did request the Respondent to -negotiate new contracts upon the expiration of their 1974-75 agreements, which the Company refused to do. Whether there were additional oral communications would make no difference. Another issue concerns .the supervisory status of three Local 51 members. From the undisputed testimony of Roche, these individuals do possess the powers of supervi- 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sion as set forth in Section 2(11) of the Act. Their status, however, is not particularly material because, as will be shown below, even excluding them from the unit, the Union still represented a majority. The principal issue here is whether or not a union's continued representative status is presumed where: the union has negotiated a series of collective-bargaining agreements; during the life of an agreement, its members cease working and honor another union's picket line; replacements are hired but are not required to join the union under the union-shop clause; and the union has no contact with the company for more than 8 months after the members cease working. Under these circumstances can the Respondent deem each Union to have lost its majority status? And if so, does the evidence establish that at the critical times each Union in fact continued to represent a majority? The Company argues that it had no obligation to bargain with any of the Charging Parties. Based upon valid objective considerations, the. Company concluded that none of the three any longer represented the employees in the respective bargaining units for which they had been recognized. On the other hand, the General Counsel argues that each union did continue to represent the majority of the employees in its bargaining unit, and, in any event, the Company did not have valid objective reasons for with- drawing recognition. As the Board stated in Taft-Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801, 802 (1973): The legal principles relating to withdrawal of recog- nition of a bargaining representative are well settled. Absent special circumstances, a union enjoys an irre- buttable presumption of majority status for 1 year after certification. Thereafter, the presumption continues, but becomes rebuttable upon a sufficient showing to cast serious doubt on the union's continued majority status. At that point, the burden shifts to the General Counsel to prove that, on the critical date, the union in fact represented a majority of the employees. Having had status as the recognized bargaining agent for the employees in its respective unit, each Union had a rebuttable presumption of continued majority status. I conclude, however, that events following July 1, 1974, rebut the presumption. After the employees began honoring the Local 119B picket line, the Respondent wrote each Union to the effect that its members would be replaced. These communications went unanswered. Thereafter, the Respon- dent in fact hired replacements. Importantly, none of the three Unions made any effort to contact the Respondent or to police its collective-bargaining agreement after July 1974. It is reasonable to conclude that none of the three Unions in fact had been designated by any of the replacements, nor is there evidence to the contrary. This and their apparent lack of interest for several months 2 It is noted that the no-strike pledges here are identical and each is contained in the arbitration agreement of the respective contracts There is no broad promise not to strike or not to honor another union's picket line. It is therefore unlikely that the Company's claim of a breach of contract would have been sustained in any event, inasmuch as no-strike pledges are narrowly construed. Where, as here, the no-strike clause is found in the arbitration reasonably cast serious doubt on each Union's continued majority status. I further conclude that the General Counsel has met his burden of proving that at the time the Respondent withdrew recognition, each Charging Party continued to represent a majority of the employees in its bargaining unit. The initial question here concerns the status of the employees who honored the picket line and ceased working in July 1974. If they are economic strikers, as I find, then even though they were replaced, nevertheless they were not displaced from each bargaining unit for purposes of determining the Union's continued majority status or the Employer's continued duty to bargain. Crimptex, Inc., and its affiliates French-Tex of Puerto Rico, Inc., Hamlet Industries, Inc. and Emtine, Inc., 211 NLRB 855 (1974). Although the Employer stated that these employees breached their respective contracts by honoring the picket line, it apparently never took the position that they are not economic strikers. While the Respondent wrote to each Union, as well as to each employee, to the effect that they were breaching the contract, at no time did the Respondent discharge them for that reason. Nor does the Respondent contend that, rather than being replaced economic strikers, they were in fact discharged for having breached their contract.2 Implicitly, therefore, the Company recognizes that these employees have the status of economic strikers. This means they could be replaced, as some were, but they must be counted when determining whether or not the Union in question represented the majority of the employees in the appropriate bargaining unit as of the time the Respondent withdrew recognition. There is no issue here as to whether the scope of the bargaining units set forth in the three contracts in question are inappropriate. Indeed, the Respondent, as well as the General Counsel and the Charging Parties, assumes that the units set forth in the contract are appropriate. It is noted in this regard that a petition by Local I I 9B jointly with a Teamsters local in Case 29-RC-2717 purports to include most of the employees of the Respondent. The petition specifically excludes employees performing the functions that had been performed by members of the three Charging Party Unions. Thus we come to the count. Again, the evidence appears to be essentially undisputed. It is assumed, absent evidence to the contrary, that each union member continued to designate his Union as his bargaining representative. Taking Respondent's Exhibit 3, a list of the employee- members of the respective Unions, as well as their replace- ments, the following is shown: As of July 1, 1974, Local 1, the paper handlers, had four members. The Company states that the functions per- formed by these individuals have been absorbed by members of another union. It is not known how many employees of the other union are performing these func- tions, but inasmuch as the Company's vice president agreement, such is considered coextensive with the grievance procedure - that is, that the union agrees only not to strike to force its position concerning a gnevable issue Such does not imply that the Union or its members waived their right to honor picket lines. See Gary-Hobart Water Corporation, 210 NLRB 742 (1974) ARKAY PACKAGING CORPORATION 403 testified to a 20-percent reduction in business, it follows that the functions of the paper handlers would be per- formed by fewer than, four employees. Accordingly, in this unit it would be fair to conclude that there are no more than three current employees who did not designate Local 1 and four nonworking employees who did. Therefore, Local 1 continued to enjoy majority status in its bargaining unit by a count of four out of seven. Local 51, the pressmen, on July 1, 1974, had seven members of whom three were supervisors. The four employee-members who honored the picket line were replaced, according to the Company, by two other employ- ees. Therefore, assuming those two did not designate Local 51, Local 51 still had a majority of four in a six-member unit. Local 23, the letterpress operators, had seven members on July 1, 1974. The Company states that these seven have been replaced by six. Therefore, Local 23 has seven nonworking employee-members in a total unit of 13 and thus continued to be the majority representative. These numbers of course are quite small. The closeness and almost artificial nature of the count lead to real questions concerning whether, after the latter part of 1974 any of these three unions in fact had a majority. However, based upon the record before me, the essentially undisputed evidence with regard to the numbers, and the clear policy to include for determining continued representative status replaced economic strikers,, it must be concluded that in fact each Charging Party, as of the time the Company withdrew recognition, represented a majority of employees in an appropriate bargaining unit. I shall therefore recommend that the Respondent cease its withdrawal of recognition with regard to these three Unions in their respective bargaining units and bargain with each upon request. 2. The independent 8(a)(1) activity The only allegation of independent 8(a)(1) activity alleged concerns soliciting employees and promising em- ployees benefits to induce them from remaining members in a Charging Party Union or to- refrain from giving assistance and support to- the Unions. This allegation apparently relates to a -conversation that John Alessi had with Al Levin, who was a, representative of the Respondent. Apparently Levin had called Alessi in late January 1975 and asked him to come back to work, saying at that time Local 51 no longer had a contract with the Company. While I find Alessi'to be-a very credible witness, I do not find anything in this conversation to be particularly sinister. Certainly it does not support the General Counsel's broad allegation that the Respondent engaged in a course of conduct to undermine any of the Unions. Assuming the conversation took place as stated, at best, it was a statement by someone still working for the Company concerning the Respondent's not unreasonable position that the contract with Local 51 had been abandoned. In any event, I do not believe that the quality or quantity of this evidence is sufficient to base an unfair labor practice finding. I shall recommend that the allegation not be sustained. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions here involved, Local 51, New York Printing Pressmen & Offset Workers, International Printing & Graphic Communications Union, AFL-CIO; Local No. 23, New York Printing Assistants and Offset Workers, International Printing & Graphic Communications Union, AFL-CIO; and Local 1, International Printing & Graphic Communications Union, AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By refusing since on or about February 4, 1975, to recognize and bargain collectively with Local 51 as the exclusive bargaining representative in an appropriate unit, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (I) of the Act. 4. By refusing since on or about March 25, 1975, to recognize and bargain collectively with Local 23 as the exclusive collective-bargaining representative of its employ- ees in an appropriate unit, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 5. By refusing since on or about April 22, 1975, to recognize and bargain collectively with Local I as the exclusive collective-bargaining representative of its employ- ees in an appropriate unit, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 6. The General Counsel's allegations with regard to independent 8(a)(1) activity have not been sustained. 7. The aforesaid unfair labor practices, occurring in connection with the Respondent's business, are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommended that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]