World Wide Press, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD World Wide Press, Inc. and Darrel D. McGuire and Great Falls Typographical Union No. 256, Interna- tional Typographical Union, AFL-CIO and Organi- zation of World Wide Press, Inc. Employees, Party in Interest. Cases 19-CA-9433, 19-CA 9526, 19 CA-10018, and 19-RM-1451 May 18, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 15, 1978, Administrative Law Judge William J. Pannier III, issued the attached Decision in this proceeding. Thereafter, Respondent and the Party in Interest filed exceptions and supporting briefs, and the General Counsel filed a memorandum in support of the Administrative Law Judge's Deci- sion and a reply brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, World Wide Press, Inc., Great Falls, Montana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: I. Substitute the following for paragraph 2(d): "(d) Upon request, recognize and bargain, effective May 17, 1977, with Great Falls Typographical Union No. 256, International Typographical Union, AFL- We deny Respondent's request for oral argument since the exceptions and briefs adequately set forth the respective positions of the parties. 2 Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. W3 e agree with the Administrative Law Judge that Respondent failed and refused to bargain with the Union on and after May 17, 1977. Accordingly, we shall order Respondent to recognize and commence bargaining with the Union as of that date. CIO, concerning any changes in terms and conditions of employment of employees in the above-described bargaining unit4 2 and with respect to rates of pay, wages, hours, or other terms and conditions of em- ployment and, if an understanding is reached, em- body such understanding in a signed agreement." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX A NOTICE To EMLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT interrogate you concerning your union sympathies and activities or concerning the union sympathies and activities of your fel- low employees. WE WILL NOT threaten you with closure, re- placement by machines, or with other reprisals because you support Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, or any other labor organiza- tion. WE WILL NOT create the impression that we are engaging in surveillance of your union activi- ties. WE WILL NOT accuse you of being union insti- gators. WE WILL NOT solicit complaints and griev- ances that have led you to seek union representa- tion and promise, either expressly or by implica- tion, to correct those matters in an effort to encourage you to forgo being represented by the labor organization of your choice. WE WILL NOT correct or change working con- ditions that have led you to desire representa- tion. WE WILL NOT suggest and encourage you to withdraw your authorizations for Great Falls 242 NLRB No. 40 346 WORLD WIDE PRESS, INC. Typographical Union No. 256, International Ty- pographical Union, AFL-CIO, or any other la- bor organizations, to act as your collective-bar- gaining representative. WE WILL NOT campaign for or promote the cause of Organization of World Wide Press, Inc., Employees, or for any other labor organization. WE WILL NOT suspend the granting of your merit wage increases during the period prior to any representation election conducted by the National Labor Relations Board. WE WIL.L NOT announce institution of negotia- tions for a retirement plan or for improved bene- fits in an effort to influence your choice of a col- lective-bargaining representative. WE WILL NOT blame Great Falls Typographi- cal Union No. 256, International Typographical Union, AFL-CIO, for the suspension or cessa- tion of consideration of benefits because it has sought a representation election to become your bargaining representative. WE WILL NOT dominate, support, assist, or otherwise interfere with the reestablishment, op- eration, and administration of Organization of World Wide Press, Inc., Employees, or any other labor organization of our employees. WE WILL NOT refuse to recognize and bargain collectively with Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, as your exclusive bargaining representative in the following appropriate bar- gaining unit: All production and maintenance employees employed by World Wide Press, Inc., at its Great Falls, Montana, facility, excluding office clerical employees, guards and supervisors as defined by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them by the Na- tional Labor Relations Act. WE WILL withold all recognition from, repudi- ate, and promptly and completely disestablish Organization of World Wide Press, Inc., Em- ployees. WE WILL make you whole for any loss of pay you may have suffered as a result of our suspen- sion of merit increase payments on and after September 21, 1977, and for any other losses of pay you may have suffered as a result of changes which we undertook to undermine your support for Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO. WE WILL, upon request, recognize and bargain with Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, concerning any changes in terms and conditions of employment on or after May 17, 1977, and with respect to rates of pay, wages, hours, or other terms and conditions of employment and, if any understanding is reached, embody such understanding in a signed agreement. WORLD WIDE PRESS, INC. DECISION STATEMENT OF THFI CASE WIl.IAM J. PANNIER III, Administrative Law Judge; This matter was heard by me in Great Falls, Montana, on May 8 through 12 and June 19 through 21, 1978. On Febru- ary 7, 1978, the Regional Director for Region 19 of the National Labor Relations Board, herein called the Board, issued an order consolidating cases and notice of consoli- dated hearing on objections to election and complaint, an amended consolidated complaint in Cases 19-CA-9433, 9526, and 10018, a report on objections and direction of hearing, and a letter setting aside a settlement agreement in Cases 19-CA-9433 and 9526. The amended consolidated complaint was based upon the unfair labor practice charge filed in Case 19-CA-9433 filed on April 29, 1977,' the un- fair labor practice charge in Case 19-CA-9526 filed on May 23, and the unfair labor practice charge in Case 19- CA-10018 filed on December 7, alleging violations of Sec- tion 8(a)(1), (2). and (5) of the National Labor Relations Act, as amended, 29 U.S.C., § 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine wit- nesses, and to file briefs. Based upon the entire record,2 upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION At all times material, World Wide Press, Inc., herein called Respondent, has been a Montana corporation with office and place of business located at Great Falls, Mon- tana, where it has been engaged in the business of manufac- turing punch boards and other gambling devices. During the 12-month period preceding issuance of the complaint, which is a representative period, Respondent sold and shipped, from its Great Falls plant, finished products val- ued in excess of $50,000 to points located outside the State of Montana. During that same period, it purchased goods and materials valued in excess of $50.000 which were trans- ported and delivered to its Great Falls plant directly from states other than the State of Montana. Therefore, I find, as admitted in the answer, that at all times material Respon- Unless otherwise stated, all dates occurred in 1977. 2 Errors in the transcript have been noted and corrected. 347 I)3( ISIONS OF NATIONAL LABOR RELATIONS BOARD dent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. IHE I.ABOR OR;ANIZAIONS INVOLVEI) At all times material, Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. At all times material. Organization of World Wide Press, Inc., Employees, herein called OWWPIE, has been a labor organization within the meaning of Section 2(5) of the act.3 111. IlIE AI.UE(iEI) UINFAIR l.ABOR PRA(II(ES A. Background and Issues Since at least 1974, Respondent has been operating in a multistory facility in Great Falls, where it manufactures punch board and other paper and cardboard gambling de- vices sold to customers in areas where the operation of such devices is legal. Respondent is owned by aproximately 100 shareholders, some of whom are employees. Because of the backgrounds of some of these shareholders, particularly that of President Zollie Kelman, Respondent has a policy of employing mentally and physically handicapped persons. On January 28, 1976, Respondent executed a collective- bargaining agreement with OWWPIE,' which had earlier been selected by the employees as their bargaining repre- sentative. That agreement provided for an effective period from February 1, 1976 until April 1, 1977, "and from year to year thereafter unless either party shall, at least sixty (60) days prior to any anniversary date thereof, notify the other party to this agreement of the desire to ammend [sic] or terminate this agreement." In June, OWWPIE's secretary-treasurer, Cecelia Eide, wrote to inquire about procedures for registering OWWPIE. By letter dated July 12, 1976, the United States Department of Labor, Labor-Management Service Admin- istration, transmitted certain information "which the La- bor-Management Reporting and Disclosure Act requires la- bor organizations to file within 90 days of their becoming subject to the Act." Because 90 days had already elapsed between the execution date of the collective-bargaining agreement with Respondent and receipt of this letter, the officers and committee members of OWWPIE decided that OWWPIE could no longer exist legally. Accordingly, they concluded that it should cease functioning as the employ- ees' representative. Although they decided to meet with the employees to apprise them of that decision, no such meet- ing was conducted until October 1976. In the interim, sev- eral employees were advised informally of the committee's decision. Efforts to continue collecting dues ceased. Because a bank account continued to exist, in which the already-collected dues were on deposit, a meeting was held I Although the complaint alleges that OWWPIE was not a labor organiza- tion during the period when it was assertedly defunct, an allegation denied by Respondent, in view of my findings hereinafter it is unnecessary to be- come embroiled in a controversy regarding whether or not OWWPIE had in fact become defunct during the period mid-1976 until May 1977. OWWPIE was formed by the employees of Respondent. in October 1976. principally to determine disposition of these funds. However, in the notice regarding this meeting, which had been posted on the bulletin board at Respon- dent's facility, it was announced that the purpose of the meeting was to conduct an election on whether to disband OWWPIE. Such an election was conducted, by secret bal- lot, at the meeting. Prior to conducting this election, the assembled employees, numbering approximately 30, were advised of the Labor Department's letter. Only five of them voted to continue OWWPIE. Thereafter, the employees voted t use the dues money on deposit for their Christmas party.' However. as far as the record discloses, no formal notice of this decision was ever given to Respondent and the employees continued to rely upon the employment terms set forth in OWWPIE's collective-bargaining agree- ment as the source of their entitlement to benefits such as periodic raises. On the other hand, there is no evidence that Respondent made any effort to deal with OWWPIE be- tween February 1976 and April 30, and there is some evi- dence of remarks, by employees in the presence of supervi- sors and by at least one supervisor, indicating that Respondent had been aware that OWWPIE was no longer functioning. On March 17 the Union's secretary-treasurer, Terry L. Schuh, was contacted by an employee of Respondent, Den- nis Hovden, 6 concerning representation. Between that date and May 5 the Union obtained signed applications fr membership and authorization forms for 39 of Respon- dent's employees. 7 A comparison of these cards with Re- spondent's employment complement from April 24 to May 20 discloses that the Union first possessed cards signed by a majority of the employees in the bargaining unit on May 1." By letter dated April 21, the Union notified Respondent that it was "unionizing the employees working at World It is undisputed by any reliable first-hand testimony that the money for the party is normally derived from the receipts from the Coca-Cola machine located on Respondent's premises. While Respondent's clerical personnel handles the bookkeeping and administrative facets of these receipts, the sur- plus money from the machine is deposited in a separate account and is kept separate from Respondent's funds. Traditionally it has been used to pay for employee functions, such as the Christmas party. 6As far as the record shows, Hovden had never been an official of OWWPIE. 7 Because, as will be discussed infra, Respondent advances several conten- tions pertaining to the validity of these forms, which will be referred to herein as cards, a card is reproduced as Appendix C to this Decision. Ap- pendix C omitted from publication.l I It is undisputed that the appropriate unit, in which OWWPIE had repre- sented the employees under the terms of its collective-bargaining agreement, is: All production and maintenance employees employed by Respondent, excluding office clerical employees, guards, and supervisors as defined in the Act. By April 30 the Union had procured 34 cards. On May 1, Schuh person- ally obtained the cards of Kathryn L. Encson, Barbara A. Bales, and Josie Antuna. On May 2 or 3 he procured a signed card from Danny Oswalt. The final card, that of Cathleen Jeanette Kasper, was obtained on May 5. The parties stipulated to the introduction of two separate lists showing the iden- tities of the employees in the unit. One of them, G.C. Exh. 3 contains two names-Elena Phillips and Bernice Patton-that do not appear on the list, Resp. Exh. 12. introduced on the last day of the hearing. Aside from that discrepancy, the two lists do correspond, showing that after April 30, when there were 68 or 70 employees employed in the unit, Allyn Mendoza was hired on May 2 (by which time the Union possessed 37 cards), Debbie Emerson was hired on May 3 (by which time Oswalt's card had been signed, thereby giving the Union 38 cards), Stephen Lane (who had not signed a card) quit on May 9, and Jeanette Tietz. Ronald Sicorelli. Randal Rust, and Marlice Deming were hired on May 16, though Deming quit at the end of the day. 348 WORLD WIDE PRESS. INC. Wide Press." and advised Respondent that in-plant orga- ever, when nizers would be watching for unfair labor practices. There- 10018, Resp, after a series of incidents took place which gave rise to though it co issuance of a consolidated complaint in Cases 19-CA-9433 On Febru and 9526. Various comments were attributed to punch ter setting as board department supervisor Candy Hedges, while she 9433 and 95 worked in the basement alongside the employees in that consolidated department. Certain other comments, directed to pressman practices cha Paul T. Marsh, were attributed to Kelman in connection jections ant with an attempt to recover the card of Roger Forbes. Re- Union's obji spondent held two general meetings with employees, on endorsement April 30 and May 7. and Kelman met with an employee mational me committee selected as a result of those meetings to conduct and promisi negotiations. A number of comments were attributed to Re- practice mat spondent's officials, particularly Kelman, during these tion that in meetings, as well as during separate conversations with em- creating the ployees. Further allegations pertain to certain actions of ters at issue Respondent during and after these events. The sum of the Responde allegations in the consolidated complaint was that Respon- Act in any r dent made an effort to revive OWWPIE as a vehicle fior sufficient to controlling the identity of the representative of Respon- December I dent's employees and as a means for defeating the Union's no basis for efforts to represent those employees, in violation of Section 19 CA 943: 8(a)(1) and (2) of the Act. tlement agre On September 20 the consolidated proceeding opened. tion should but, on the following day, the parties reached a settlement sentative of agreement which, in addition to the normal remedies for the violations alleged, provided for the filing of the repre- B. Ti sentation petition in Case 19 RM 1451. for an election to be conducted on December 1. and, prior thereto, for both Hedges hi the Union and OWWPIE to be accorded two 30-minute during whic meetings to address the assembled employees at Respon- the Pennani dent's facility. In addition, the notice provided that "man- Monday,. Al agement does not express any preference between these or testified tha any other labor organizations." tended and Thereafter. Respondent concededly altered its policy re- had inquirer garding wage increases. While it continued to observe the to attend. H periodic wage increases required by its agreement with claimed tha OWWPIE, consistent with the settlement agreement provi- employees h sion that it would continue to observe those terms and con- she had qu, ditions of employment, it ceased granting merit increases, had told her Moreover, it distributed campaign literature to its employ- it had been ees in which it stated its favoritism for OWWPIE in the paign and h election and made certain other comments, described in'atr. to ask the ql During the first full week in November each of the parties that her que conducted 30-minute meetings with those employees who to ascertain wished to attend in the lunchrxoom at Respondent's facilitv. denied gene Two weeks later a second set of 30-minute meetings was she had qut conducted by each of the parties separately at the same the Union. location. In addition. on 1 day prior to the December I day Hedges election. Evelyn Kelman, the wife of President Zollie Kel- identities of man, picketed briefly outside Respondent's facility and car- ing and thei ried her sign inside the facility for a certain period of time. that on a se These events led the Union to file a new unfair labor prac- what the UI tice charge. Case 19 CA 10018, and, in conjunction with cally directi certain other incidents, to file objections to the representa- Aside fry tion election. In the election 76 employees had voted: 51 for Hedges. the OWWPIE, I I for the Union. and I against the participat- her as to A ing labor organizations. Four ballots were challenged. Im- organizing I mediately following the election Respondent advised its disputed the employees that merit raises would again be awarded. In wouldn't do addition. it commenced negotiations with OWWPIE. How- withered art 349 the Union filed the charge in Case 19 CA- ondent again suspended the merit increases, al- ntinued to negotiate with OWWPIE. ary 7, 1978, the Regional Director issued a let- ;ide the settlement agreement in Cases 19 CA 26: an order consolidating cases and amended I complaint encompassing all three unfair labor arges filed by the Union; and a Report on Ob- d Direction of Hearing, consolidating the ections to Respondent's asserted assistance and t of OWWPIE and to surveillance of the infor- eetings, as well as Respondent's withholding ng of benefits, for trial with the unfair labor tters. The foregoing events. as well as an allega- January 1978 certain statements were made impression of surveillance, constitute the mat- in the instant case. nt contends that its conduct did not violate the nanner and, further. that it was not of a nature warrant setting aside the election conducted on . In addition, Respondent urges that there was setting aside the settlement agreement in Cases 3 and 9526. Accordingly. it argues that the set- eement should be reinstated and that certifica- be issued to OWWPIE as the bargaining repre- its employees. hit Commentc s . tributed to an, d, Hcg ad been ill during the workweek of April 18 23. h the Union had conducted a meeting above t Bar on April 21. She returned to work on pril 25. Employees Patti Feist and Mary Boule t on that dav Hedges had asked who had at- what had gone on at the l'nion's meeting, and I about the problem that had led the employees edges did not quarrel with their testimony, but t when she had returned to work that day the ad been standing around talking and that when estioned them concerning their conduct., they r of the L nion's campaign. Hedges testified that her surprise at learning of the organizing cam- er natural inquisitiveness that had then led her uestions that she had asked that da,. She denied estions had been part of a management scheme information regarding the Union and, further. rally that there had been ans other times when estioned or interrogated emploxees concerning However. Boule testified that on the following had renewed her questioning regarding the employees who had been at the Union's meet- r reasons for attending. Further. Feist testified parate occasion she had been asked by Hedges nion had to offer. Hedges did not deny specifi- ng these questions to these two employees. om the testimony attributing questions to re was also testimony concerning comments by what would happen if the Union prevailed in Respondent's employees. For example. it is un- it Hedges had said that it' the Union came in, it / some people. such as Mar, Boule who had a n. any good and, on another occasion, that she DECISIONS OF NATIONAL LABOR RELATIONS BOARD had asked what employees who worked in classifications that the Union did not normally represent, but which ex- isted at Respondent, were going to do when they had no jobs. Also uncontroverted was the testimony of Anna Swan that Hedges had suggested that employees withdraw their names because "this could lead into a suit." Swan's testi- mony in this respect was partially corroborated by Boule. who testified that Hedges had said something about a law- suit, though she could not recall precisely what Hedges had said in connection with that subject. It was directly cor- roborated by Feist who testified that she had heard Hedges tell Swan that she should get a withdrawal from the Union by Monday "or there might be a lawsuit."9 Later, testified Feist, Hedges had repeated this remark to the other base- ment employees. Rene Pfleger and Feist both testified that on one occasion Hedges had told the employees that production in the de- partment had not been satisfactory and that if the Union prevailed in becoming the bargaining representative, Kel- man might not be able to pay union scale, as the employees wanted, and the plant might have to be shut down. Pfleger was interrogated in detail on cross-examination regarding Hedges' remarks. She testified that Hedges had attributed the possible shutdown both to the low level of production in the department and to the advent of representation of the employees by the Union. Boule also testified that Hedges had said something about the plant closing i the Union became the employees' representative and, further, that Hedges' comment in this respect had been distinct from her remarks concerning closure due to lack of productivity, al- though Boule was unable to reconstruct Hedges' remarks fully. Nevertheless, the sum of' the testimony of these three employees is that Hedges attributed possible closure of the plant, at least in part, to successful organization of Respon- dent's employees by the Union. In general, Respondent argued that the advent of the Union's organizing campaign had been accompanied by a decline in the volume of production at its plant, particularly in Hedges' department. No records were produced to sup- port this contention. Nevertheless, Hedges testified that her remarks regarding the possibility of closure had pertained exclusively to that situation and she denied having ever told the employees that closure would result if they did not get out of the Union. She further denied ever saying that if the Union came in, the entire plant would be closed. However, when then asked if management had ever made the state- ment that the plant might close if the Union became the employees' representative, Hedges equivocated, testifying, "I don't believe so." Later she was asked if she had ever made the statement that Kelman could not afford to pay 9 I do not credit the testimony of Diana Dennis to the effect that on one occasion Hedges had said, "that if we didn't get out of the ITIJ befbre the following Monday that we'll be fired." It was apparent that D)ennis was hostile to Respondent in general and was particularly hostile to Hedges. Her testimony in this respect was given on cross-examination at a stage very late in the proceeding. Other employees, who she claimed had been present when this statement assertedly had been made by Hedges, had already been called as witnesses by the General Counsel. Not only did they make no mention of a discharge threat, but the General Counsel, in contrast to his approach with regard to other comments, made no effort to attempt to see if those witnesses could recall a threat of discharge by Hedges. Moreover, two of the employ- ees identified by Dennis as witnesses to Hedges' purported discharge threats were recalled by Respondent. They were unable to recall having heard Hedges make such a threat of reprisal. Accordingly. I do not credit Dennis. the employes if the Union came in. Attempting to avoid directly answering the question, until Respondent's counsel all but insisted that she do so., Hedges equivocated and evaded answering directly: Q. One of the girls reported that you said Zollie couldn't afford to pay the employees if the ITU came in. Do you remember that statement? A. I don't believe I said that because Zollie isn't paying the wages, it's World Wide Press. Q. Well they might have inferred it was World Wide Press. Do you ever remember telling them if the ITU came in, they couldn't afford the wages that ITU would require and, therefore, the plant would close down? A. I believe that's false because I don't believe any- body knew what the wages would be. That ITU Q. Well, without regard to whether it's right or wrong, do you ever remember making a statement to the effect that because of a new union, the wages might be up and, therefore, the plant might have to close, or the department might have to close? A. No. Boule, Feist, and Swan appeared to be attempting to tes- tify honestly and accurately to the comments which they' had heard Hedges make. Although ledges denied some of the comments attributed to her by them. these comments were similar in nature to others which Hledges either con- ceded having made or which she did not deny having made. Since there was no dispute that Boule, Feist, and Swan had accurately portrayed the latter comments, it is likely they were equally accurate in portraying the statements which Hedges did deny. Further, Hedges' equivocation regarding whether her superiors had said that the plant might close should the Union become the employees' representative and her effort to evade directly answering the questions pertaining to the closure threat were most unimpressive and lend support to the impression which ledges conveyed as a witness: that she was attempting to avoid acknowledging anything that would injure Respondent's cause. Theref)ore, I find that Hedges did ask the questions attrib- uted to her by Boule and Feist. did state that the Union would not benefit handicapped employees should it become the bargaining representative, did state that employees in classifications not normally represented by the Union would be affected adversely should the Union become their bargaining representative, did suggest that employees should withdraw their names because the organizational campaign could lead to a lawsuit, and did state that if the Union became the employees' representative, Respondent might not be able to pay the wage rate demanded by the Union and might have to close its facility. C. The Incidents Pertaining o the Rcturn of Roger Forbes' ('lard" In addition to being partially deaf and having a speech impairment, Roger Forbes is educationally handicapped. 10 Al this point,. consideration will be undertaken of only the legality of Respondent's statements in connection with the sequence of events leading to the return of Forbes' card. The effect of the return and destruction ofr that card, as well as the effect of the attempted revocations of cards by other employees, is discussed infra 350 WORLD WIDE PRESS, INC. Although he had signed a card prior to the April 21 meet- ing at the Pennant Bar, he had failed to fill in the blank designating the name of a beneficiary. Accordingly, at the Pennant Bar meeting, Schuh enlisted the assistance of pressman Paul T. Marsh to explain to Forbes what was necessary to complete this portion of the form. Later Forbes spoke with Michael H. Loch, in whose home Forbes had earlier resided for a period as a foster child and who served informally as a guardian for Forbes, thereafter, about the card. Since, in Loch's opinion, Forbes' explana- tion was not clear and it appeared that Forbes had not comprehended fully what he had signed, Loch requested Forbes to obtain the card so Loch could examine it. Either in this conversation or in a later conversation Forbes men- tioned Marsh's name in connection with the solicitation of the card. On the evening of Wednesday, April 27,1" Forbes told Marsh that he needed his card back. The latter replied that he would not be able to get back to Forbes until the begin- ning of the following week, since he was scheduled to leave town the next morning and would not return until the weekend was over. However. Marsh did agree to contact Schuh, upon his return, regarding the return of Forbes' card. Loch testified that on Thursday evening, April 28, he had spoken with Kelman asking what was happening at Re- spondent, to which Kelman had replied that there were some attempts to organize the employees. Loch testified that during this conversation he had explained his relation- ship with Forbes and had said that he was going to attempt to learn what forms had been signed. Loch was uncertain whether he had mentioned Marsh's name during their con- versation and, indeed, was uncertain whether he was even aware of Marsh's name at the time of this conversation with Kelman. Following his return on Monday, May 2, Marsh was summoned to the telephone by Forbes and spoke with Loch. Loch said that he was concerned about what Forbes had signed and wanted it back. Marsh explained that he did not have the card and that Schuh had it, but promised to obtain the card from Schuh or to put Schuh in touch with Loch. In Loch's opinion the return of the card was an un- complicated matter and, when his request went unanswered by the following day, he prepared a letter which he en- closed in an envelope with Marsh's name on it and deliv- ered it to a secretary at Respondent, asking her to give it to Marsh. In this letter, Forbes referred to the telephone con- versation of the prior evening and instructed Marsh to place the card, if he had gotten it, in the envelope and to give it to Kelman. In the letter Loch also stated: "If I do not receive the above papers by 4 P.M. tomorrow, May 4, 1977, 1 will have to take drastic measures to ensure their return." Loch testified that he had not discussed the matter with Kelman since their conversation of the preceding Thursday, but he assumed that return of the card would be facilitated if Marsh gave it to Kelman. Marsh testified that after having spoken to Loch on Mon- day evening he had been summoned to the front office where Kelman, Vice President Richard Pachek, Production Manager Harold Kinneman, and Marketing Manager Ir- 1" Marsh works on the evening shift. ving Greenfield,'" were also present. According to Marsh, Kelman claimed that he had received numerous calls from Loch, who had been upset, regarding the card, and he had then asked questions concerning Forbes' card, which Marsh pointed out was in Schuh's possession. Marsh testified that Kelman had then continued by asking about Marsh's orga- nizing activity on behalf of the Union, although he con- ceded that it was quite possible that these questions per- tained to the effect of his activities on production in the plant. Then, testified Marsh, Kelman had accused him (Marsh) of threatening people to sign cards and had as- serted that he knew that Marsh was "an instigator" and had been present at the Pennant Bar a few nights earlier. Ac- cording to Marsh, Kelman had also claimed that numerous people had called and had named Marsh as an instigator. Marsh further testified that during the conversation ei- ther Masnek or Pachek' had pointed out that Respondent hired the handicapped, had asked if Marsh knew of any other plant that did so, and had said that there were ma- chines which could be purchased to replace employees per- forming various jobs, but that Respondent had not done so because it had felt that it should continue employing the handicapped. During the course of the meeting, testified Marsh, Kelman had been summoned from the room to the telephone and when he had returned he had said that the call had been from another person identifying Marsh as an instigator. Marsh testified that prior to the end of the meet- ing, he had been requested to get the Forbes' card back for Loch. Although Marsh contacted Schuh, who promised to speak with Loch, Schuh did not do so by Wednesday, May 4, when, testified Marsh, he had been summoned again to Kelman's office where the latter directed him to contact Schuh and straighten out the return of Forbes' card, since, according to Kelman, Loch was continuing to telephone. Although Marsh attempted to contact Schuh by telephone, he was unsuccessful, and he reported his lack of success to Kelman later that same evening. According to Marsh, Kel- man had replied that Marsh should keep trying and should report to Kelman. at his home, on what had happened. Marsh testified that he continued to meet with a lack of success in his efforts to reach Schuh. but that when he had later called Kelman to report that fact, the latter had said not to worry as he had spoken with Loch and Loch had said that he had gotten in touch with Schuh. According to Marsh, Kelman had continued the conversation by saying that Loch had gotten an attorney and had intended to serve Marsh with papers if the latter failed to hurry and return the card. Marsh testified that Kelman added that if papers had been served, Marsh would no longer have a job and that Kelman had concluded the conversation by saying that if Marsh related its substance to anyone, they would no longer be friends. Kelman appeared twice as a witness in this proceeding: once as an adverse witness called by the General Counsel at the beginning of the case and later during Respondent's 12 it is admitted that each of these individuals was, at all times material. a supervisor within the meaning of Sec. 2( I ) of the Act and an agent of Respondent. ) Inasmuch as Marsh did not place Production Supervisor Sheldon Mas- nek as being present during this meeting. it was in all probability Pachek who had made this comment 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case-in-chief. On both occasions his testimony was not per- suasive. When called by the General Counsel, he engaged in a cat-and-mouse game with the apparent object of mak- ing it as difficult as possible for the facts to be developed. At no point did he appear to be attempting to apply himself to accurately describing events as they occurred. In so doing, he gave testimony which conflicted with objective facts and ultimately with his own account of events when, having heard the testimony of all other witnesses, he was called as the last witness during Respondent's case-in-chief. His testi- mony in connection with the return of the Forbes card pro- vides an excellent illustration. Initially Kelman denied that Loch had telephoned him about the matter. Then he testified that, "Lock [sicJ called us, or came down to the plant. There was going to be a fight. He was going to go up and beat up a man on a $35,000.00 press, and we got that stopped, because he was supposed to have threatened this boy to make him sign the card." After reviewing his affidavit, Kelman then conceded that Loch had telephoned and testified that Loch had "said that Roger Forbes had been threatened if he didn't sign the card to join the Union, and he was very unhappy and wanted to know who Paul Marsh was, and he was going to come down and beat him up or something along those lines." Loch, however, testified that he had not again tele- phoned Kelman, following their conversation on Thursday. April 28, until Friday, May 6. Moreover, Loch denied spe- cifically that he had told Kelman that he was going to come to the plant in connection with this matter, denied specifi- cally that he had said that he was going to use physical force against Marsh, and denied specifically that he had said that Forbes had been coerced or forced to sign the card. He also denied having ever expressed the idea that he might hire an attorney or was planning to sue in order to obtain return of the card.' Indeed, the only possible basis for the latter assertion by Kelman was the above-quoted last sentence of Loch's note to Marsh-which means that Respondent had read that letter even though it had been addressed only to Marsh and there was no valid reason for Respondent's officials to read it. An added discrepancy emerges from a comparison of Kelman's testimony for the General Counsel and for Re- spondent. Called by the General Counsel, Kelman denied that he had summoned Marsh to his office. Instead he claimed: If I remember right, Paul Marsh was walking through, or he was on shift, and we told Paul Marsh, or I told Paul Marsh-I said, "Paul, you've got a guy out at the wrangler that's very unhappy with you" And I said, "We don't want him coming here, and I don't want no fights in the building. You better call the man and get your problem solved with him." '' Kinneman. Respondent's only other management witness to these events, was also contradicted b Loch. Thus Kinneman testified that he had spoken with Loch. prior to the Monday, May 2 meeting with Marsh, both by telephone and when Loch had come to Respondent's facility. Kinneman claimed that Loch had been concerned that Forbes had been harassed by Marsh. Loch, however. testified that he had not spoken directly with Kinne- man concerning the signing of a card by Forbes: "I know Harold. I have talked to him about some product that was produced at the plant. but if I talked to him regarding this matter. I don't believe so, because I didn't feel he was in that position to be even involved." Called later by Respondent, Kelman conceded that Marsh had been called to the office. There, testified Kelman, he had advised Marsh that Loch had called and was upset, adding that it was none of his business but that he wanted Marsh to get it straightened out as he (Kelman) did not want to get involved and had not appreciated the call from Loch. Kelman denied that he had made any threat to fire Marsh. However, he did not deny specifically any other facet of the remarks attributed to him by Marsh. Accordingly, I credit Marsh's testimony that Kelman in- terrogated him regarding his union activities, accused him of being an instigator on behalf of the Union, created the impression that Respondent was getting information about the employees' union activities, became involved in the ef- fort to secure the revocation of Forbes' card, threatened Marsh with termination if he did not get the card returned, and warned Marsh not to say anything about these re- marks. I further find that Pachek's comment concerning the hiring of the handicapped constituted as implied threat of termination should the Union successfully organize Re- spondent's employees. D. The Employee Meeting of April 30 On Saturday, April 30, Respondent convened a meeting attended by approximately 40 employees and by Kinne- man, Hedges. Masnek, Pachek, and Kelman. 5 For the most part, the comments made during the meeting were either undisputed or were confirmed by Respondent's witnesses. Kinneman opened the meeting by telling the assembled em- ployees that there was a valid collective-bargaining agree- ment, verified by counsel, between Respondent and OWWPIE which had been renewed automatically by virtue of the fact that it had not been reopened during the 60-day period prior to April 1. However, he acknowledged that Respondent was aware that there had been problems and that the employees were discontented. He asserted that the way for employees to handle these problems was through a committee that would meet with Respondent to discuss them, adding that Respondent might be or was willing to reopen the contract. When some of the employees said that they felt that OWWPIE no longer existed, Kelman retorted laughingly that if that were true then the collective-bargain- ing agreement was no longer valid and he could get away with lowering all wages by 25 cents. In a more constructive vein, Kinneman suggested that if the employees wished to negotiate, they should select a new committee, with a repre- sentative from each floor of Respondent's facility., and, to afford them time to do so, Respondent would wait until the folllowing Saturday to again meet with them. He further suggested the possibility of holding general meetings, such as the one that then was being conducted, every 3 months to discuss grievances, wages, working conditions, etc. s Another example of Kelman's unreliability arose when the General Counsel asked if' he had attended this meeting. In response. Kelman testified "I vaguely remember something about i. but I couldn't tell you exactly when it happened, or I don't even remember if I was there or not. I may have been there, but I'd be lying if I told you I remember if I was there or not." As the notes of Masnek clearly disclose, Kelman had been present at this meet- ing, which Respondent itself had scheduled. and Kelman had participated actively in the discussions during the meeting a act which, of itself, tends to controvert his assertions that he could not recall if he had been present 352 WORLD WIDE PRESS. INC. Kinneman then opened the meeting to the employees, inviting them to ask questions and to voice their complaints and grievances. A number of employees spoke up, mention- ing a wide range of problems. For example, the absence of a retirement plan was mentioned and. in response, Kelman said that the stockholders had authorized negotiation of such a plan and described the details of one such plan. When a complaint was voiced about the absence of air- conditioning and fans, the employees were told that Re- spondent had been working on it. trying various ways to improve the situation in the warmer months, but that noth- ing had proven successful. When Barbara Buttner men- tioned the hospitalization plan, Kelman asked for a show of hands as to how many people were happy with Respon- dent's program. When it was mentioned that there was no eye or dental care, the employees were told that this was under consideration in conjunction with a new health plan being reviewed by Respondent. As shown by Masnek's notes of this meeting, the employ- ees were told that they would be allowed 15 minutes per month of company time to meet and discuss their problems for their 3-month meetings with Respondent.6 Kelman said that the employees would also be given two 20-minute peri- ods for their discussions prior to again meeting on the fol- lowing Saturday, May 7. When it was pointed out that OWWPIE's dues had been used to pay for the preceding Christmas party, Kelman promised that Respondent would replace the funds expended.'7 E. The Events of May 2-6 On Monday, May 3, a meeting of all employees was an- nounced over the intercom, and the employees began as- sembling on the second floor at 4:25 or 4:30 p.m.l 8 While they were assembling, it is undisputed that Kinneman. Masnek, and Hedges were present, but they said that they would be leaving and would not interrupt the meeting. In fact, they did leave before the meeting began. Due to a lack of organization during the meeting, the employees drifted away when the final bell rang, without resolving anything and without selecting their representatives to meet with Re- spondent. Later that week a second effort was made by the employees to select representatives when they met in Gib- son Park after work. Again, however, no progress was made. Nevertheless, as the week progressed each of the floors selected a representative, with each floor apparently conducting its election during working time. For example, on one day, Hedges asked the basement employees if they had yet selected their representative and was told they had not done so. Later that day the employees conducted an election, during working time, and elected Gene Miller as their representative. 16 Kinneman testified that such IS-minute periods per month had always been allowed. His assertion in this respect was not corroborated bh an' other witness to this proceeding. 7 There is no evidence that Respondent ever did write a check or provide or return the money to OWWPIE following the meeting. To the contrary. Ida Johnson directed secretary Barbara Jean Siemens to write a check to OWWPIE, in the amount of the Christmas party expenditure. on the ac- count maintained for the benefit of the employees from the Coca Cola ma- chine receipts. However. this check was never picked up by an official of OWWPIE and ultimately, Siemens voided it. 8 Normal quitting time for the da shift is 4:45 p.m. Earlier in the week Kelman had received an anonymous letter warning him that Respondent was going to be sabo- taged by. among other names listed, Ron Williams and Ida Johnson. ' Over the course of the remaining days that week, Kelman discussed this letter with employees Ron Williams and Ida Johnson, as well as with boxing employee Winne Van Heel. Williams testified that he had been called to the office, where he had been shown and questioned about the letter. of which he had no knowledge, and that he then had been asked, by Kelman, how he felt about what was going on and if he was satisfied at Respondent. To the latter ques- tion, testified Williams, he had replied that he was satisfied with the wages but did have a gripe about future security for himself and his family, noting the absence of a retire- ment program. Williams testified that Kelman had said that if he stayed with Respondent long enough he would more than likely obtain security as he had a great opportunity to advance "by staying there. staying at World Wide, in the Union, I guess." Kelman conceded that he had participated in a conversa- tion with Williams pertaining to the letter, which Kelman apparently viewed as being illustrative of the friction among employees, which assertedly was being caused by the Union's campaign and which purportedly was causing a decline in production.20 Thus, Kelman testified that he had spoken to Williams in an effort to ascertain how production levels could be restored. Yet Kelman did not deny that he had asked the questions attributed to him by Williams. Rather, he was unable to recall whether he had said any- thing about giving Williams an opportunity to move up in conjunction with union activities of any nature. Johnson testified that when she had been called to the office Kelman had asked her both about an incident the prior day when she had left work early and about the above-quoted letter. Then, according to Johnson, Kelman had inquired what the employees wanted in their contract, and she mentioned a raise and a retirement plan. He re- plied. testified Johnson. that he was willing to offer the em- ployees a retirement plan and would try to better anything that the Union had to offer. Acccording to Johnson, during the conversation Kelman had referred to the Gibson Park meeting, observing that nothing would get accomplished drinking beer.: Johnson further testified that she had ac- knowledged signing an authorization card, though she was unclear whether Kelman had specifically asked if she had done so or if she had just assumed that he knew and had volunteered this information. She also testified that she had told Kelman that she would like to stay out of it and was thinking of drawing up a withdrawal letter, because the 19 In October 1976 burglars had invaded Kelman's home and had held him and his family hostage at gun point. Though the Kelmans were rescued ultimately. one of the burglars was shot while trying to escape through a window. Thus. It was not unreasonable for Kelman to be somewhat con- cerned about receiving such a letter, though. of course. the two incidents are unrelated. 20 Aside from this letter there is no specific evidence of any incidents of friction or quarreling among the employees of Respondent. For that matter, no documentar\ es idence was produced nor was there. in reality. n) credi- ble oral lesiimony sufficient to show a decline In Respondent's production during he spring. 21 Sme of the empluosees had been drirking beer at that meeting 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was not doing anything, and would try to get who- ever would follow her to do the same thing. 2 Johnson testi- fied that Kelman had agreed that such a letter would be a good idea. Kelman was unable to recall whether Johnson had said that she intended to prepare a withdrawal letter, though he did not "think" that such a discussion had occurred. Never- theless, in describing his meeting with Johnson, Kelman attributed to her a statement about the purported lies which she had discovered that the Union had told the employees, thereby agreeing, inferentially, that Johnson had expressed displeasure with the Union during their conversation. Fur- ther, in the final analysis Kelman never did dispute John- son's account of what had been said by him that day. Van Heel testified that she had been called to Kelman's office, following the Gibson Park meeting, where he had asked if she had attended that meeting, and when she ac- knowledged having done so, if she had been to a meeting sponsored by the Union. After, testified Van Heel, she had denied having attended such a meeting, Kelman had in- quired if she had signed a card and she replied that she had not done so. Kelman testified twice about his conversation with Van Heel. Called as an adverse witness, before Van Heel had testified, he testified that she had spoken to him one day about the employees' constant talking and failure to work. Asked if he had inquired if she had attended the Gibson Park meeting, he testified "I don't think so." When calld as Rspondent's witness, Kelman denied having asked if Van Heel had signed a card, but was still unable to recall asking if she had attended the Gibson Park meeting, he testified "I don't think so." When called as Respondent's witness, Kelman denied having asked if Van Heel had signed a card, but was still unable to recall asking if she had attended the Gibson Park meeting. He further testified that he was pretty sure that he had not discussed the Union and her membership with her. There was also an occasion when, it is undenied, Kelman had spoken to employee John Byington. Byington had been summoned to Kelman's office concerning his somewhat ir- regular attendance. As the conversation progressed, testi- fied Byington, Kelman had asked "which one in the press room was pushing the hardest to get the [Ulnion in the plant." Byington testified that he had replied that it seemed to him that no one had to be pushed to join and that the employees appeared to join automatically, but that if any- one seemed to be pushing, it was Dennis Hovden. While Kelman denied a few of the comments attributed to him by these four employees, for the most part he did not deny their accounts of what he had said to them. I have already found that Kelman is not a credible witness. In testifying with respect to these conversations, Williams, Johnson, Van Heel, and Byington appeared to be truthful. Accordingly, I find that Kelman did, during these conversa- tions, interrogate employees concerning their sympathies, the organizational activities being conducted by the em- ployees, and the sources of employee dissatisfaction; did promise, both expressly and by implication, that the causes of dissatisfaction would be corrected; and, did create the 22 Johnson testified that this idea had been formulated by her prior to her meeting with Kelman. impression that surveillance had been conducted of the Gibson Park meeting. F. The Emplovee Meeting of Saturday, May 7 On Saturday, May 7, the second meeting scheduled by Respondent for all employees was conducted. It com- menced with an introduction of the bargaining committee members-Wes Dess, Carol Oswalt, Gene Miller, Susan Ol- son, and Barbara Buttner. The names of the alternates were also read. Kinneman asked each committee member to state his or her complaints, which each one then recited. Masnek's notes of this meeting disclose that Kelman in- formed the employees that all of the points discussed would be brought up at Respondent's stockholders' meeting. The committee was told that it would have 60 days to prepare a contract proposal for submission to Kelman. When they inquired if they could meet on company time, Kelman said they could not do so and that they should meet during their lunch hours, but that, if necessary, they could take an ex- tended lunch hour once a week.2 When Kelman said that he would pay for their lunches, Pachek interjected that Kel- man could not do so. Kinneman then offered to pick up the tab, apparently acting in a personal capacity. Dess and Byington testified that during this meeting Masnek had asked if Dess felt that most of the people would vote for the Union or for OWWPIE. Dess testified that he had replied that most of them would vote for the Union. Byington testified that Dess had said that most of the people would vote for OWWPIE. which had led Mas- nek to ask why the Union continued sending letters to the employees. Dess recalled that an official of Respondent had questioned why the Union continued to send employees letters, but attributed that question to Kelman. According to Byington. Kelman had remarked, "that if his lawyer heard the questions that were being asked he would prob- ably have a fit, he would be upset." Neither Masnek nor Kelman-nor any other official of Respondent for that matter--denied that these questions and Kelman's remark had occurred during the meeting. Dess further testified that following the meeting Kelman had approached him and said "tell these guys to tell ITU to quit sending letters to people." Dess agreed to do so. Kel- man denied having made this statement to Dess when inter- rogated by the General Counsel as an adverse witness. Nev- ertheless, such a comment appears to be no more than a continuation and is of the same nature as the undisputed remarks regarding the Union's "letters" that had been made during the meeting. In view of this fact and inasmuch as I have found that Kelman was not a credible witness, I credit Dess' account of this remark and find that Kelman did direct him to have other employees tell the Union to quit sending literature to employees. G. he Committee Meetings and the (Committee's Meetings with Kelman Over the course of the succeeding weeks the bargaining committee met on four occasions, during lunch, to agree 13 Masnek testified that the luncheon period was the only time that the employees could get together, because "half of them would leave, wouldn't he interested enough to stay and discuss it" if the) had been left to formulate their proposals during the evenings. 354 WORLD WIDE PRESS, INC. upon proposals to submit to Kelman, On each of these oc- casions Respondent's officials either paid directly for their lunches or reimbursed those employees who did pay for them. Moreover, when the employees reported hack to work from lunch at a later than normal time, they were not penalized for their tardiness but were paid for having worked the full shift. 24 Notwithstanding Respondent's promise to afford the committee 60 days to formulate proposals before meeting with them, in mid-May Kelman summoned the entire com- mittee to his office where he inquired concerning whether there was continued activity by and on behalf of the Union. A committee member replied that they had no knowledge, since they were for OWWPIE and employees were not likely to advise them of the Union's activity. Olsen then volunteered that the committee had been discussing send- ing a letter to the Union telling it that Respondent's em- ployees intended to form their own union. In response Kel- man said that this would be a good idea and he suggested that the letter be sent by registered mail. Someone then questioned where they would get the money to do so, and Kelman responded that he could not pay fbr it but, after throwing a $5 bill on the floor, added that if they found the money they could use it to pay for the letter.' Kelman also told the committee that he wanted OWWPIE to be a bona fide union and, accordingly, that their officers should be elected and dues collected. Following the meeting there was action on each of Kel- man's suggestions. The committee sent a registered letter to the Union notifying it that "through majority vote we will not join the ITU. but will form our own union group within World Wide Press Inc."2 ° One afternoon at approximately 24 Gene Miller testified as a witness for Respondent and, during his testi- mony, it was apparent that he supported Respondent's and OWWPIE's po- sition and that he was tailoring his testimony in an effort to conform it to their best interests His account in connection with these lunches illustrates that point. He claimed that the employees had been required to report back to work following lunch as had been the case normally and that, at best. the committee had been late by only a few minutes in doing so. Further, he claimed if any time had been lost virtue of reporting back late from these meetings, "it was the individual. whoever was late" who suffered for the losl time. Yet Secretary Siemens testified that when "they had their OWWPIF meetings during the lunch hour, if the_ were late, it was excused." She testi- fied that she had simpli adjusted the committee pascards back to the I p.m. starting hour without regard to the actual time they had reported hack from lunch. 2' Miller, in an apparent effort to support Respondent's position, testified that he did not recall registration of the letter being discussed at the meeting and, further, that he had paid t register the letter out of his own pocket However, he agreed that Kelman had thrown a $5 hill on the floor. although he claimed that he had used the money to purchase beer for the other com- mittee members following the meeting He also claimed that. approximalels a week later. he had taken a $5 hill to Kelman's office and, "unbeknownst to" Kelman. had placed it on Kelman's desk and had then left because "I didn't feel ght about taking it after I thought aout it for a while " Miller further testified that he would not sa) that the mone) that had been dropped on the floor had been intended to register the letter. There as no eidence that Kelman had been in the habit of purchasing beer for emploees. Kel- man did not claim that he had ever found 5, from an anonymous donor, on his desk in the office. Nor did Kelman testily that he was n the habit of throwing money on the floor. In short, Miller's testimony was an obiousls fabricated effort to fortifs Respondent's position that it had not been aiding OWWPIE. 12 Each of the committee members, save Olsen. signed this letter. Since Olsen had not been at work n May 24 when the letter had been prepared, her alternate, Linda Sutherland, had signed it for their floor 4:30 the employees met during worktime, nominated offi- cers, and elected Dess president. Mike Morrow vice pres- ident, and Pattie Eide secretary-treasurer. Eide then began collecting dues, in the amount of $5 per month, in June. After reviewing its proposals with the employees at yet another 4:30 employee meeting at Respondent's facility, the committee met with Kelman and presented its 3-page pro- posal, including such matters as a request for higher wages and for another holiday, on employees' birthdays. Oswalt testified, without dispute. that Kelman had read the propos- als and had said that they looked good and that he figured that he could go along with them, but that his lawyer would have to read them. However. by the date of the committee's next meeting with Kelman, the investigation of the initial unfair labor practice charges was in progress and a Board agent was at Respondent's facility. Kelman told the com- mittee that he could no longer meet with them because the Union had filed another "complaint" against him which served to stop all negotiating. H. The Implemrlentation of New Benefits It is undisputed that various changes were effected in the late spring and summer at Respondent. For example, in May and June Respondent spent a total of $467.26 for por- table exhaust fans which were used in the basement. During the summer the wash basin on the fourth floor was fixed or replaced. Pachek testified that Respondent "painted the floors and we did some general cleanup work after these meetings." A visual fire alarm was installed for the benefit of deaf employees. While Respondent claims that these im- provements were no more than a part of its conntinuing maintenance program, they were nevertheless matters that the employees had raised in response to Respondent's ques- tions regarding employee complaints. Indeed, Pachek con- ceded that the fans had been purchased because of the em- ployees' complaints regarding the absence of fans in the basement. Yet another employee complaint had been the absence of dental coverage in Respondent's health plan. In September dental coverage was added to Respondent's plan as part of an overall change in the program which had made it possi- ble to add such coverage. as well as to improve the surgical. life insurance, and hospitalization benefits provided by the program. Finally, the minutes of Respondent's May 25 sharehold- ers' meeting disclose that Olson and Oswalt were in attend- ance. During this meeting a motion was made and carried to invite representatives of OWWPIE to attend the next annual shareholders' meeting which, due to a change in month to more closely correspond to adjournment of most state legislatures. was scheduled to take place in September. As a result, Olson and Oswalt attended the September shareholders' meeting as representatives of OWWPIE. However, the minutes of the May 5. 1976, shareholders' meeting do not disclose that any OWWPIE representatives attended. I. The W'ihholding of Meril I Wage Increases As set forth above. Respondent. OWWPIE. and the Union entered into a settlement agreement in mid-Septem- 355 DEI)tCISIONS OF NATIONAI. LABOR RELATIONS BOARD her. That agreement provided specifically that Respondent would continue to pay the wages and fringe benefits speci- fied in its agreement with OWWPIE. Under the terms of that agreement wage rates are set forth for the General classifications of employees which Respondent employs. Respondent continued to observe the increases specified in that agreement after September. However, Respondent also had a policy whereby, in essence, employees at the top of the wage scale for their classification received reviews at approximately 6-month intervals for merit increases. Mas- nek, the primary official of Respondent responsible for ad- ministering this program, identified employees who were eligible for consideration for a merit increase and brought their names, along with his recommendation, to the atten- tion of a committee which, in addition to Masnek. included Kelman. Kinneman, and Hedges. If the committee agreed that a merit raise was warranted, which. according to Mas- nek, was the result reached in the majority of cases, an increase. normally amounting to 10 cents but which could vary from 5 cents to 40 cents or 50 cents, was provided to the employee in the next paycheck. It is undisputed that following execution of the settle- ment agreement Respondent ceased granting merit in- creases. Nevertheless, at least until January 1978. Masnek continued to compile the names of those who were eligible and continued submitting them to the committee, which continued to decide who should receive them. ('onse- quently, the sole change made following execution of the settlement agreement was that employees did not receive their merit increases. Masnek testified when employees had asked him about these increases, he had merely told them that Respondent had decided to give them a merit increase but could not do so because of the Union and, he testified. he had avoided saying anything about whether the in- creases. when granted, would be made retroactive. His tes- timony in this respect was corroborated by most of the em- ployees who testified concerning this matter. Thus, Oswalt and Olsen testified that Masnek had said to them that con- tinuation of the program would be considered a bribe. Ida Johnson testified that Masnek had told her that such in- creases were not being granted only because of the Union. Boule testified that she had been told that the merit in- creases were being suspended because of the court proceed- ings and the Union. and that they could not be granted while the Union matter was going on. Sutherland claimed that Masnek had told her that the Union was holding up her merit increase but that it would be retroactive when she got it. Feist testified that she had overheard Hedges saying that the employees could not get any raises until the matter involving the Union was cleared up. Following the election Respondent decided to resume granting merit increases and Masnek told department heads and individual employees that the employees would be eligible to receive such increases again. However, when the Union filed its objections and the charge in Case 19- CA- 10018, Respondent again suspended implementation of the program with the result that, as there had been no inter- vening payday between the election and this decision, no employees received any merit increases. That the reason for the renewed suspension of granting merit increases was made evident to the employees by Re- spondent is shown by Patti Eide's testimony concerning a conversation that her mother, Cecelia, and she participated in with Kelman in January. Because Cecelia Eide's vote had been challenged due to her supervisory status during the election, she and Patti Eide had gone to Kelman to discuss Cecelia's status. Patti Eide had served as the Union's observer in the election. and during the course of the discussion with Kelman, he pointed out that they would not have challenged Cecelia Eide's vote if Patti Eide had not challenged Miller's vote. When Patti Eide protested that she had been there as an observer and was compelled to challenge Miller's vote, because that was what the Union had wanted her to do, Kelman. in the course of arguing against her assertion, said "if you hadn't been having coffee parties at your house with ITU members we wouldn't be in this mess," adding that if the Union had not become in- volved with Respondent's employees, the employees would all have had their raises and would be better off by now. At this point Kelman produced a list from his pocket which he said showed the names of employees who were scheduled to receive merit increases. that Cecelia Eide's name was on the list, and that she would eventually get her raise after the Union departed from the scene. J. The Respondent's Literature tand the Preelection Meetings with Eplovees Following execution of the settlement agreement, the Union and Respondent each prepared and distributed cam- paign leaflets to employees. Respondent contends that its leaflets were distributed in response to and in an effort to answer the statements made bh the Union in its literature. For the most part the General Counsel does not dispute Respondent's right to do so, nor are most of' the statements contained in the leaflets distributed by Respondent referred to in connection with the General Counsel's argument in his brief. However. certain statements are singled out as being relevant to a determination of the issues in this case. Thus, in the leaflet bearing the date October 24 the General Counsel points to the following statements by Respondent: I. Contrary to ITU statements, the Management of World Wide Press is perfectly willing that a union rep- resents it employees -but Management favors the OWWPIE (Organization of World Wide Press Inc. Employees) over the ITU. 8. The ITU filed an unfair labor practice suit against World Wide Press. The court did not find World Wide Press guilty of any unfair labor practice, The leaflet concludes with the appeal: "Management of World Wide Press urges its employees to vote for OWWPIE in the election December 2nd. Be sure to vote because if you do not vote it is a vote against OWWPIE." In Respondent's November 10 leaflet the General Coun- sel points to the following statements as evidence of a viola- tion of Respondent's pledge of neutrality in the settlement agreement and as further evidence of unlawful statements: The truth is World Wide Press was negotiating for a pension-profit sharing plan before the ITU moved in 2* There was no contention at this proceeding that Cecelia Eide is a super- visor within the meaning of Section 2(11 of the Act. nor was there an) litigation regarding such a matter. 356 WORLD WIDE PRESS. INC. and he truth is because of the 11'T caused election World Wide Press could not negotiate further at this time or now a plan may have already have been nego- tiated. The truth is you all know that you can feel safe with an insured and guaranteed pension plan for you know that your money will be there with the insurance com- pany when you retire. Does the ITU have an insured pension plan? Ask them. The ruth is World Wide Press was negotiating with the Equitable Life Assurance So- ciety of the United States for an insured plan before the ITU election stopped all negotiations. Ask the Union Bosses Kempa and Schuh about the pension plan at the Trubune. Ask the Union Bosses if they could handle your pension money better than a government regulated insurance company such as Equitable. As set forth above. the campaign meetings arranged for in the settlement agreement were conducted during two separate weeks in November. Thus. on November 3, 4, and 7, meetings were conducted by Respondent, the Union. and OWWPIE, respectively. On November 21, 22. and 23. meetings were conducted by OWWPIE, the Union, and Re- spondent. respectively. All meetings were scheduled for 4:45 p.m. to accommodate the change in shifts which oc- curred at that time each day. At the hearing, the General Counsel amended his complaint to allege that Respondent had met with and given preferential treatment and choice of meeting dates to OWWPIE. without the presence of the Union. and further, had encouraged OWWPIE- to prepare its program for presentation against the U nion. The testi- mony with respect to the selection of dates for these meet- ings shows that Kelman and attorney Graybill met with OWWPI E's committee and selected the dates for the meet- ings. On this occasion. Wes Dess testified vaguely that Graybill had said "something" to the effect that "we will take care of the management meetings, you must take care of your meetings and the ITU will have to take care of its meetings." 8 By letter dated October 24 and 28 Respondent then notified the Union of the dates which had been sched- uled for the meetings for each of the parties. As far as the record discloses the Union voiced no objection to these dates nor to the order in which each party was scheduled to make its presentations. Several points are raised with respect to the manner in which these meetings were conducted and to the substance of what was said. First. with respect to the Union's meeting it is contended that Respondent engaged in surveillance of what transpired. To assess this contention properly a sum- mary description of the first floor of Respondent's facility is needed, for the meetings were held in the lunchroom lo- cated in one of the front corners of that structure. Essen- tially the first floor is divided down the middle, front to back, by a partition. The lunchroom occupies the front left side of that partition when one is facing the building. Entry to the lunchroom is made through a 10- to 12-foot wide opening in the partition. That opening is adjacent to the very' front of the building. On the other side of the partition is the only operative entry door to the building itself and. as one enters that door, one faces a counter opposite the entry- 8 This testimony was given in response to leading queslion, way to the lunchroom and on the other side of the partition. An aisle which runs beside the partition makes it possible to go around the counter behind which is an open office area extending to the back of the building, where an enclosed office is located. In the space between the counter and the enclosed office are desks and file cabinets used by the cleri- cal employees. The enclosed office in the back is used pri- marily by salesman Greenfield but also by other officials of Respondent. In short, the right side of the first floor is the working area for Respondent's office and administrative personnel. It is undisputed that during the first union meeting none of Respondent's supervisors entered the lunchroom. How- ever, several employees testified that from their seats in the lunchroom they could see officials of Respondent on the other side of the partition. For example. Olson testified that during the meeting she had observed Kelman, Mashek, Kinneman, and Hedges "lalt one time or another during the meeting." on the other side of the partition "just moving around." According to Olson "some were in the front [of the counter] and some were in the back." Jerry 1.. Rybar- czyk testified that he had seen Kelman and Kinneman by the front desk, on the office side of the partition. "for just a minute .... but they never stayed very long, you know." Schuh, who had been a speaker at the meeting and, thus, who had been facing the doorway in the partition for at least a part of that meeting, testified that he had not seen any of Respondent's representatives during the first meet- ing, but that after the meeting had ended and as he was leaving, he had observed Kelman in the open area. "stand- ing at the desk, behind the desk, leaning on it." Schuh con- ceded that when he and Organizer Peter Miess had arrived for the meeting. they had been met b Kelman and Miess had told Kelman "See ou after the meeting." Tlhe only official of Respondent to testit'l directly regard- ing this facet of the meeting was Kinneman, who testified that he had been in the area during the meetings, working in the office and getting coffee from the coffee pot on the counter. He further testified, without dispute, that during the meeting employees who had not wanted to attend had continued working. Secretary' Siemens testified that the pe- riod from 4 to 5 p.m. is one of the busiest times of the day for Respondent's workflow and that during that time it is normal fotr Greenfield. Masnek. Kelman. and Kinneman to be working on the office side of the partition. Schuh testified that at the second union meeting both Graybill and Kelman had been in the lunchroom when the Union's representatives had arrived. According to Schuh. Miess had approached Graybill, who had been sitting in the back of the room with a pencil and paper. and had men- tioned that it might be unlawful for Graybill to remain. The latter then departed without comment, as far as the record discloses. However, testified Schuh. Kelman had remained during the meeting, though not in the lunchroom itself. Rather. testified Schuh. Kelman had walked back and forth between the entryway in the partition and the front desk. During the meeting someone had raised a question regard- ing journeymen and apprentices. Schuh testified that, "I says, 'Many times the problems will come from manage- ment that they don't want to have to pay full journeymen wages, and it probably would come from him.' And I ges- tured toward Mr. Kelman. and he then spoke and started 357 I)I('ISIONS (OF NAIIONAI, IABOR REL.ATIONS BOARI) talking." Schuh further testified that Kelman had spoken "a couple otf other times at the meeting" in addition to the occasion which he described, but Schuh was unable to re- call the subject of Kelman's commlnents. Schuh acknowl- edged that no one fironm the Union had said anything to Kelman about the fact that he was present and spteaking. Nor did Schuh recall an-yone having asked Kelinan to leave. Schuh's description, which was corroborated by some of the employees, was not disputed by Kelinan who claimed that he was unable to recall what had taken place: "I may have been in the building and someone may have come and asked me a question or called fr me or something, but I don't recall anything that happened." The third incident of concern regarding these meetings involved the presence of Respondent's insurance agent Joseph Wanago and his associate, Mr. ()vrun, at one of Respondent's meetings and at one of ()WWPI 's meetings. Prior to the Union's orgazliing campaign it had been Wanago who had submitted the successful bid for the em- ployees' health and welhlire insurance. lie had personally been coming to Respondent's facility 2 days a week to ha n- dle claims and other administrative matters in connection with the program. Although hie had approached Respon- dent concerning institution of a profit-sharing or pension programni2 for its employees and while Respondent's oti- cials hald discussed creation of such a program prior to the spring. no commitment to institute such a programi had heen mde. Indeed. prior to the advent of the Union's cam- paign, no request for proposals pertaining to such programis had been made by Respondent. I owever, in its campaign the I Inion dlid point to its own retirement program as a feature that would make its repre- sentation desireable. Moreover, Pachlek ackn owledged that once the l nion had commenced its organizinig campaign, the employees had inquired about such a program: "'Ihev always asked fior a retirement plan at pretty near every meeting, it w'as brought up in some fashion." Indeed, the minutes of Respondent's September 28 shareholders' meet- ing show that the issue of' "a pension and/or profit-sharing program" was raised. While Respondent coitenided that the subject had also arisen at prior shareholders' meetings, the minutes of the precedi ig three meetings do not support that contention. At the September 28 ImIeeting a fori)mal motion ';as made to enable Respondent to negotiate a retirement plan "i n the judgment of the di reCtrs, whlen the la hiOr prb- lem had been resolved ...." his motion passed u1nani- mously. Waniago testified that in July or August Mlasnek had re- quested data on a retirement plan, saying that "there was an upcoming meeting of the employees and he said the employees wanted questions sic] regarding profit sharing plan." Later, in August or September one of Respondent's attorneys requested informnation concerning the profit-shar- ing trusts of Wanago's comnpany. In late October or No- vember, testified Wanago,. he had been asked bh Kelmhnan "to bring ()vrum and myself and speak at a meeting for the employees at World Wide Press. 1'o explain to tlihcn, basi- 2' Hereinaftcr relferred Io as relirenlenl prol2ra;n cally. a profit-sharing plan at the Company. " ' ' According to Wanago, Kelman amplified this by saying that he wanted the employees apprised of how such a plan worked in some areas. Ilowever, Wanago also testified that he had not been told the reasons for being asked to make a presentation and had not discussed the Union's situation with Respondent's officials prior to the meeting. Wanago testified that he opened the meeting by telling the employees that Respondent was very interested in insti- tuting a pension plan and that he had then turned to attor- ney (rott, saying that fir a year or so "we had been talk- ing pensions. getting warm in some cases and then getting cooled down, why hasn't there been a pension plan put in here before this time?" C(rotty. according to Wanago, had replied that Respondent was in union litigation which had terminated discussion of instituting such a plan. According to Wanago questions were raised regarding the comparison between his firm's plan vith union plans. lie testified that he had responded: And our indication was that there w ould be more of a control bh the employees under this plan because the trustees of the plan would have more of a say so on where the money was invested and so forth, whereas if it was put into a union plan there was no say whatso- ever. regulations and this type of' thing. Also, I indi- cated I thought that the sumn total of their retirement, when thev wanted it, at 62 or 65. would probably have more mioney involved fr them personally than they would under the union plan. which I had done this bef'ore, in a lot of situations. I believ e it is true. V'anago described the conclusion of his participation lt tile meeting: " here were a few questions that came up on the health insurance, those were answered, and we were done. Anid at that point wc lingered for about live minutes and left because tlh we re talking about it had no interest for us and we left. Mr. ()vrum and I" It is undisputed that Wanago also addressed the employ- ees at a subsequent meeting allocated to OWWPIE. Kel- man denied that he had personally insited 'Wanago to ad- dress this meeting. Miller, in an apparent effrt to buttress Kelman's psition on this point, testified that at Respon- dent's first meeting Wanago had run out of time and. so, lie (Miller) had invitetd Wanago to return because there were still questions left unswered. As shown hb Wanago's .hbov-quoted description of how his participation in Re- spoidlenIs first meeting had terminated. Miller quite clearly was not being candid in asserting that Wanago had not been able to comllplete his presentation iat the first meeting. Ihat Kelinan atS equally lacking in candor with respect to hos Wanago came to attend the O()WWPI meeting is shown bh ()lson's testimony that Kelman had told the corn- ritee that Wanago would he speaking at the OWWPILE niecting. It was also shown bhs Wanaclg's testinlons that it " Kcl nu s ll ilreuhilil 3 ;It a witness was shosn clearls with respel o this 1lnl ion V, anago. (iled h\ Ihe (irer;al Co (unsel, Kelmaln testified lhat he dd no rInirlhel hivlilg ilvited W\;lnago io spe;k m ine l t Resprn- dulll' mlleetings When tihe itilit sas pressed it ew ririutles la;ter h the (;enieral ( olulsel. Kcliman then testified "I'm not sure. I rias have nitted hini. anid I r1tma not have I dn' recall" tloruse er. when called during Resplondenlts cs ;l-ill-hie. Keailnr testified. withut hcrlur lon. that he had invllcdi Waa lltig io speak at Respondenl's preelectioni mr eting. 358 WORLD WIDE PRESS. INC. had been Kelman who had later told him that there were unlikely that several questions that employees would like answered about capped pers, what he had said at the first meeting and that it had been signed to ini Kelman who had asked him to return for a second meeting. quently, it Finally, all who testified agreed that during one of Re- Morgan had spondent's meetings, Kelman, reflecting the appeal made that the state by Respondent's literature, had told the employees that to Kelman management preferred OWWPIE and that a vote against The final i representation would help the Union. Called b the Gen- when appro eral Counsel, Kelman hedged when asked about these state- were plannir ments, testifying that he did not recall but may have said proximately that it would be better for the employees to vote for change, Scht OWWPIE rather than to vote for no union because such a ' aiting outsi vote would be against OWWPIE. However, called as a wit- tering and le ness during Respondent's case-in-chief, Kelman acknowl- man, Kelma edged having told the assembled employees that Respon- forms occasi dent preferred that they vote for OWWPIE over the Union help her husl or for no union. the building the building i K. Final Preelection Events The General dent further In this subsection, two incidents are of concern. Cecelia Of the witr Eide testified that approximately I week before the election incident had Kelman, who could not communicate directly with deal man said tha employees, had come to her workplace with another man. Schuh claim, Eide testified that the other individual had been introduced tivitv for 30 to her as being an employee of the aster Seal Society and been inside I that, through that person, Kelman had asked which side ployee to de! Eide would be voting for in the election and, further, had had been visi said that the Union was not accepting the handicapped. mate as to th After denying any knowledge of who Morgan was and of the sign. having had any such conversation with Eide, when called as A major c a witness for the General Counsel. Kelman specifically re- Mliller. who c ferred to the conversation when asked about it during Re- "pet poster," spondent's case-in-chief and denied having directed the in- had read. "\ terpreter to ask Eide who she was intending to ote fir in sign had said the election. However, he did not deny having made the r\ a picket s comment about the Union not accepting the handicapped. scription. tes The interpreter was Bob Morgan. a therapist for mental "Vote for O' health in the Great Falls area. liHe testified that he had come these come to Respondent's facility prior to the election. at Kellman's trated above request, to interpret for deaf employees so that they could man appears have questions answered regarding the representation elec- %idual. On I tion. Morgan further testified that he had spoken to ap- Schuh also a proximately four deaf employees during the time that he accuratel. S, had been there and that he was translating for Kelman. He is simply not denied specifically having asked Eide how she intended to credibility ret vote in the election. Though he conceded that he had men- that the Gen tioned to some of the employees that there were benefits ance of the and deficits for handicapped people in being represented by tuted a three unions, and while he could not recall specifically what he selected the had said in this regard, he denied specificall3 saying to Eide that a prepoi that one of the problems of the Union for handicapped that the sign people would be that the Union was not accepting handi- employees to capped people. Although the General Counsel called a number of witnesses, some of whom ere deaf no other witness testified to similar comments by Morgan on that day. Notwithstanding Kelman's unreliabilits as a witness. I felt that Morgan was testifying firthrightly and was maiking A settleme an earnest effort to recall what had taken place when he Septemnber 21 had translated for Kelman in the plant. Moreover I ind it rector set th 359 Morgan. given his obvious concern fir handi- ons, would participate in a conversation de- timidate and coerce the handicapped. Conse- vould appear that Eide misunderstood what been attempting to sa3 to her. Therefore, I find ements attributed to Morgan and inferentially are not supported h substantial evidence. ncident pertains to an eent on November 30, ximatels 20 or 30 of Respondent's employees ig a Christmas party in the lunchroom at ap- 4:45 p.m. As this was the time for the shift uh and two other officials of the Union were de to distribute handbills to the employees en- aving. It is undisputed that Mrs. Evelyn Kel- n's wife, who is a shareholder and who per- onal uncompensated work at Respondent to iand, engaged in picketing activities outside of and carried the same picket sign w hile inside in the sight of the employees in the lunchroom. Counsel alleges that bh this conduct Respon- engaged in unlawful activities. nesses who testified, Siemens estimated that the lasted fr less than 2 minutes. and Mrs. Kel- it it had lasted approximatel\ 3 or 4 minutes. ed that Mrs. Kelman had engaged in this ac- minutes. including the period while she had the office area. Rybharclk,. the onl\ unit em- scribe the incident, testified that M1rs. Kelman ible from the lunchroolm hut adxanced n esti- ie length ot' time during which she had carried ontlict arose regarding the legend oin the sign. claimed to have prepared the sign earlier as his and Mrs. Kelman each testified that the sign Vote lor O()WWPII-." Schuh testified that the "Voting tfor ()O\AV'I I as not having to car- ign later." Rharczk. conftirming Schuh's de- tified that the sign had read, approximatels, )WWPII. and vo w(on't has.e to carrs one of )ecember Ist." Although, ;s ftund and illus- Miller was an unreliable witness, Mrs. Kel- d to be hasicalls a candid and tfrthright indi- he other hand. throughout this proceeding. ippeared to be attempting to describe eents o too did Rybarczik. In these circumstances. it possible. nor is it necessar. tfor me to make a solution regarding this incident. Rather. I find neral Counsel has not shox n hb a preponder- evidence that Mrs. Kelman's conduct consti- it to compel the employees to strike it tilhe Union as their representative. Rather. I find iderance of the evidence sho s no) more Ithan which Mrs. Kelmnan carried appealed to the vote or OWW\\tPIi.. iS. ANAI SIS A. 'he' Posl ,et ,Icmn u (t nd'uc lit agreelment was execuled alld af.,pprl ed on I. Respondent maiitlilns that the Regional I)i- at aLreemcnt aside ithoutt adejqulate hbasis. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consequently, the threshold area of examination involves whether Respondent engaged in unfair labor practices fol- lowing approval of that settlement agreement and, if so, whether those unfair labor practices are sufficient to war- rant setting aside that agreement. In making this analysis, Respondent's presettlement conduct may only be consid- ered as background evidence. See discussion, Jake Schlagel, Jr., dbla Aurora and East Denver Trash Disposal, 218 NLRB 1, 9 (1975). Following execution of the settlement agreement and the filing of the representation petition in Case 19-RM-1451, Respondent continued to consider whether the performance of individual employees warranted awarding them merit in- creases. However, while determinations were made that particular employees were entitled to such increases, the granting of such increases was suspended and, conse- quently, no employees received merit increases after Sep- tember 21. As the Board pointed out in The May Depart- ment Stores Company d/b/a Famous-Barr Company, 174 NLRB 770 (1969): "[A]n employer confronted with a union organizing campaign should decide the question of granting or withholding benefits as he would if a union were not in the picture; if his course of action in granting or withhold- ing benefits is prompted by the Union's presence, he vio- lates the Act. [Footnote ommitted.]" This rule is fully appli- cable to increases which are discretionary in nature, such as merit increases, and is applicable even in circumstances where the employer is acting upon advice of counsel. Osco Drug, Inc., A Wholly Owned Subsidiary of Jewel Food Conm- panies, Inc., 237 NLRB 231 (1978). Respondent, however, contends that its suspension of these increases had been designed to prevent the appear- ance that it was using them to influence the outcome of the election and that it had acted in good faith in doing so. Nevertheless, "the vice involved in ... the unlawful refusal to increase situation is that the employer has changed the existing conditions of employment. It is this change which is prohibited and which forms the basis of the unfair labor practice charge." N.L.R.B. v. Dothan Eagle. Inc., a subsid- iary of Thomas Newspaper, 434 F.2d 93, 98 (5th Cir. 1970). It is true, as I pointed out at the hearing, that there are situations in which the Board has excused an employer's liability for suspending benefits because the employer had made clear to the employees that its reason for doing so was to avoid the appearance of election interference and, in at least one case, because the employer had made clear that the employees would not suffer detriment due to the sus- pension, because the benefits would be granted retroac- tively once the election was conducted. See Cutter Labora- tories, Inc., 221 NLRB 161 (1975); cf. Chatfield-Anderson Co., Inc. dib/a Truss-Span Company., 236 NLRB 50 (1978). In the instant case, however, Masnek conceded that he had tried to avoid answering employee questions concerning re- troactivity of merit increases that were being suspended, and only one employee, Sutherland. testified that there had been an assurance that her increase would be retroactive. Consequently, there is no assurance in the instant case that would serve to exculpate Respondent's conduct. Moreover, while both Olson and Oswalt testified that they had been told that the merit increases were not to be granted because doing so might make it appear as if' Re- spondent were attempting to bribe the employees, uncon- troverted explanations were advanced to other employees that had the effect of placing blame on the Union for sus- pension of these increases. For example, Ida Johnson testi- fied that she had been told by Masnek that she was not to receive a merit increase "because of the ITU." Boule testi- fied that she had been told that she would not receive a merit raise while the proceedings instituted by the Union were in progress. Even though Sutherland had been assured that her merit increase would be retroactive, she had also been told that the delay in granting it to her had been "be- cause ITU was holding it up .... " Accordingly, Respon- dent placed blame for suspension of merit increases on the Union for exercising the statutory right to seek an election among Respondent's employees. In so doing, Respondent's explanations had the effect of discrediting and discouraging support for the Union, inasmuch as its explanation "was couched in terms clearly intended to influence the employ- ees against the Union, to discredit the Union and to dis- courage membership therein." Marine World USA, 236 NLRB 89, 91 (1978). In short, these comments negate Re- spondent's claim that it had suspended merit increases to avoid interference with the election process. Therefore, I find that both by suspending the granting of merit increases and by placing the onus for such suspen- sions on the Union, Respondent violated Section 8(a)(1) of the Act. Equally violative of Section 8(a)(1) of the Act was Re- spondent's conduct announcing its intention to institute a retirement plan. There had been generalized discussion of the desirability of instituting such a program prior to the advent of the Union's campaign. However, only after hear- ing employee complaints about the absence of such a pro- gram, both in meetings called in response to the Union's campaign and during individual conversations concerning the source of the employees' dissatisfaction" did Respon- dent act to inaugurate specific consideration of such a pro- gram. Thus, Masnek requested information concerning such a program from Wanago for "an upcoming meeting of the employees." Later, Respondent sought more specific in- formation on the types of profit-sharing trusts provided by Wanago's firm. At the shareholders' meeting of September 28--held I week after the settlement agreement had been approved and which was attended for the first time by offi- cial representatives of OWWPIE-Respondent formally approved institution of negotiations for such a plan, albeit "when the labor problems had been resolved .... " Quite clearly it had been the complaints about the absence of such a program, voiced in response to Respondent's ques- tioning regarding the basis for the employees' support of the Union, that, as Pachek conceded, had led to initiation of specific discussions about instituting a retirement pro- gram. Yet. in literature dated November 10, Respondent claimed falsely that consideration of such a program had predated the Union's campaign and that it had been that very campaign that had necessitated suspension of further negotiations for such a program. Moreover, in that same literature, Respondent extolled the security of "an insured XI For example, during Kelman's conversation with Williams. 360 WORLD WIDE PRESS, INC. and guaranteed pension plan," such as its own insurer pro- vided, and questioned whether the Union's program pro- vided similar security. Finally, in this regard, Respondent produced Wanago at one of its preelection meetings. It is true that Wanago never described a specific concrete program that was to be insti- tuted at Respondent and never promised expressly that a program would be instituted should the employees reject the Union's representation. On the other hand, as Wanago conceded readily, he had "followed a sales" approach in describing his firm's program and he had compared the ad- vantages of his firm's program to union plans. Moreover, his entire presentation had been prefaced by his question to one of Respondent's attorneys as to why such a program had not been instituted earlier, to which the latter had re- plied, in front of the employees, that "union litigation" had terminated discussions of the matter. In short, Wanago had been attempting to sell the employees on the virtues of his firm's plan against a background whereby Respondent had instituted active consideration of such a program in re- sponse to employee complaints about the absence of such a program being one of the causes of dissatisfaction that had led them to seek representation by the Union. Under the Act, employers are not free to promise im- proved benefits to employees to persuade them to forego their statutory right of representation. N.L.R.B. v. Ex- change Parts, Co., 375 U.S. 405 (1964). Nor are employers free to make such promises by implication. Sherman Dis- tributing Company, Inc. dib/a Schroeder Distributing Com- pany, 171 NLRB 1515 (1968); Landis Tool Company, Divi- sion of Litton Industries v. N.L.R.B., 460 F.2d 23, 24-25 (1972). To permit such conduct, by explication or by impli- cation, would be to leave employers free generally to ferret out the causes which led employees to seek representation and to then undermine their statutory right to representa- tion by promising to cure the underlying reasons for their dissatisfaction. Yet this is precisely what had occurred with regard to Respondent's employees' dissatisfaction with the absence of a retirement program: Respondent ascertained that this was a cause of dissatisfaction, it inaugurated ac- tion to secure such a program, and it so advised the employ- ees. Its message to the employees could not be more clear: once the Union was removed from the scene, negotiations for such a program could be completed and a retirement plan could be installed. Therefore, I find that Respondent did impliedly promise to secure a retirement program for its employees if they would forego support of the Union, thereby violating Sec- tion (a)(l) of the Act. Furthermore, by telling the employ- ees that the Union had been responsible for suspension of negotiations for such a program, Respondent, as had been the case with the merit increases, placed the onus on the Union for the failure of the employees to receive the bene- fits of a retirement program. Accordingly, by these state- ments, Respondent further violated Section 8(a)(l) of the Act. As his third postsettlement violation, the General Coun- sel points to the asserted surveillance and impression of sur- veillance of the Union's preelection meetings on November 4 and 22. Since these meetings were held on Respondent's premises, in its lunchroom, this contention runs afoul im- mediately of the recently reiterated doctrine that there can be no complaint about employer observation of union ac- tivities in which the participants choose to engage on the employer's premises. Porta Systems Corporation, 238 NLRB 192 (1978), and cases cited therein. There is no evidence that, at the time of the execution of the settlement, the Union had objected to holding its meetings in the lunch- room. Nor is there evidence that in executing the agree- ment, the parties had agreed upon or even had discussed any special conditions that would constitute a modification of this well-established doctrine. Beyond this, the descriptions of what Respondent's offi- cials had been doing at the time of the Union's first meeting do not suffice to show other than that they had been pursu- ing their normal work-related activities on the office side of the first-floor partition. Indeed, the description of them as moving around and as only being in that area for brief periods supports Respondent's position that they were merely engaging in their normal activities. Nor is there any evidence that at the Union's second meeting there had been any objection voiced concerning Kelman's presence at the entryway to the lunchroom-in contrast to Miess' objection to Graybill's presence. To the contrary, from Schuh's own description-that, in answering an employee's question. he had replied that the prerogative for that item belonged to management and had then nodded toward Kelman-it would appear that, at the very least, he had given the ap- pearance of inviting Kelman to respond to the question. In any event, there is no evidence that Schuh had objected to Kelman's making statements during the Union's second meeting. Nor is there evidence that Kelman had, in effect, then taken over the Union's meeting with his comments. Therefore, in light of settled Board doctrine. the absence of any specific arrangement in the settlement agreement that would have served to modify that doctrine with regard to these meetings. the absence of evidence that Respon- dent's officials were doing anything at the Union's first meeting other than engaging in their normal work-related activities, and the circumstances surrounding Kelman's comments at the Union's second meeting, I find that it has not been shown b a preponderance of the evidence that Respondent engaged in surveillance or gave the impression of engaging in surveillance of the Union's two preelection meetings. Furthermore, the General Counsel failed to supply suffi- cient evidence to support its assertion that Respondent vio- lated the Act by the manner in which it had arranged the preelection meetings. Presumably. one of the parties had to take a first step to arrange for these meetings pursuant to the settlement agreement. As Respondent controlled the lunchroom. it was not illogical for it to be the party to do so. The selection of OWWPIE as the first of the two labor organizations to contact was not inherently illogical, nor does the fact that Respondent chose first to contact OWWPIE before the Union show, of itself, that Respon- dent was assisting OWWPIE in any manner. At some point both labor organizations had to be contacted. Not is there evidence that the Union had or voiced any objections to the schedule of meetings sent to it by Respondent. It is true that during both weeks that meetings were conducted. the Union was accorded the second or middle meeting. But, it did not object to this position. and there is no showing that Respondent either intended this arrangement as a means of 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placing the Union at a disadvantage, nor is there any evi- dence that the middle position did, in fact, serve to disad- vantage the Ulnion. Therefore, I find that the evidence does not support the allegation that Respondent violated the Act by first conferring with OWWPIE about the dates for these meetings or that it violated the Act by the placement of the Union in the meetings as scheduled during each of the 2 weeks that they were conducted. Nor do I find that Gray- bill's comment, concerning each party being responsible for planning its own meeting, sufficed as an instruction to OWWPIE's representatives to plan their meeting. At best, it simply made clear the guidelines under which the meet- ings were to be conducted. The remaining postsettlement allegations pertain to inci- dents which, in total, concern allegedly continued assist- ance to OWWPIE by Respondent. These allegations are of' two types. First, it is clear that Kelman decided, indepen- dently and without prior consultation with officers of OWWPIE, to have Wanago return to address the employ- ees for a second time during OWWPIE's second preelection meeting. Second, throughout the preelection period, Re- spondent repeatedly voiced its opposition to the Union and its favoritism for OWWPIE, including the occasion when Mrs. Kelman carried a sign exhorting the employees to "Vote for OWWPIE." While Respondent chooses to char- acterize its comments as mere expressions of' preference which are not unlawful under the Act, it is clear that its comments went well beyond expressing a preference and, instead, constituted open campaigning on behalf of OWWPIE. For example, in its October 24 leaflet, Respon- dent "urges its employees to vote for OWWPIE in the elec- tion December 2nd. [Emphasis supplied.]" Moreover, the leaflet continues by pointing out that failure to vote consti- tutes "a vote against OWWPIE." Similarly, in one of its preelection meetings, Respondent advised the employees that a vote against the participating labor organizations was a vote against OWWPIE. In sum, rather than being mere expressions of preference between the Union and OWWPIE, Respondent's remarks constituted promotion of OWWPIE's cause. They were an appeal, as the sign which Mrs. Kelman admittedly carried stated, to "Vote for OWWPIE." As such, these remarks constitute assistance to OWWPIE. Moreover, Kelman's independent action in ar- ranging for Wanago's presence at an OWWPIE meeting, coupled with his announcement to OWWPIE's officers that Wanago would be appearing at their meeting, constituted domination of OWWPIE's activities, in violation of Section 8(a)(2) and () of the Act. In the settlement agreement which it signed on Septem- ber 21, Respondent promised, inter alia, that it would not interfere with employees' Section 7 rights, that it would not promise to remedy employee grievances in response to their organizing activity', that it would not assist or interfere with OWWPIE's organization and affairs, and that it would not express any' preference between the Union and OWWPIE. ]Thereafter, as found above, Respondent suspended merit increases in violation of Section 8(a)( 1) of the Act, implied- Iv promised to remedy employee concerns regarding the absence of a retirement plan, placed the Union at a disad- vantage and disparaged it by blaming it for the suspension of merit increases and negotiations for a retirement pro- gram, arranged for at least one speaker for OWWPIE's meetings without prior consultation with any of OWWPIE's officers, and campaigned on behalf of the pro- moted OWWPIE's cause in the December I election among the employees. Therefore, Respondent did violate the terms of the settlement agreement and, accordingly, that agree- ment may properly be set aside. Furthermore, by assisting and endorsing OWWPIE, by withholding merit increases, and by impliedly promising a retirement program to the employees, Respondent engaged in conduct constituting grounds for setting aside the election in Case 19 RM 1451. B. The Presettlement Conduct The principal allegation with respect to the presettlement conduct is that by various acts, commencing in April, Re- spondent interfered with, assisted, and dominated OWWPIE. Before turning to direct consideration of the factors underlying that allegation, it is best to consider cer- tain other conduct that would violate the act without regard to the presence or absence of assistance and domination of OWWPI E. Beginning on April 25, Hedges interrogated employees concerning the identities of the Union's supporters and their reasons for seeking representation by the Union. Al- though Hedges claimed that her questions had been the product of nothing other than natural inquisitiveness when she had first learned of the organizing drive, this assertion is belied by her continuation of such conduct on subsequent days. Nor was she the only official of Respondent to engage in such conduct for, during the following week, Kelman used his knowledge of Loch's desire to examine the card signed by Forbes as a starting point for interrogating Marsh regarding what Forbes had signed,22 the extent to which Marsh had been engaging in organizing activity on behalf of the Union, and the efforts being made by Marsh to se- cure submission of Forbes' card to Loch. Nor were these conversations with Marsh the only instances where Kelman had interrogated employees. For, again using an external event--this time the anonymous letter--as a springboard for his questioning, Kelman had asked Williams how he felt about what had been going on and if he was satisfied at Respondent. He asked Van Heel if she had attended the Gibson Park meeting and any meetings conducted by the Union, as well as whether Van Heel had signed a card for the Union. Later in May' Kelman asked Byington which pressmen were the strongest supporters of the Union and he questioned the newly selected OWWPIE committee as to whether there was still organizing activities in progress on behalf of the Union. Although interrogation is not a per se violation of the Act, it can "be a very subtle weapon for interfering with employee rights .... Ridgewood Management Company, Inc. v. N.L.R.B.. 410 F.2d 738, 740 (5th Cir. 1969)., cert. denied, 396 U.S. 832 (1969). "Any interrogation by the em- ployer relating to union matters presents an ever present 32 Had Loch been as upset and had he threatened violence at Respondent's plant as Kelman descnbed. Kelman's inquiry regarding this subject might well be viewed in a different light. This, however, is a question that need not be reached, since, as found above, I do not credit Kelman's description of what Loch had said. Rather, I find that he had simply embellished the sub- stance o his conversation with Loch as a vehicle for gathering information from Marsh concerning the nion. 362 WORLI) WIDE PRESS. INC( danger of coercing employees in violation of their §7 rights." Texa-v Industries. .In .v. N.L.R.B., 336 F.2d 128. 133 (5th Cir. 1964). Here. both Hedges and Kelman asked questions designed to elicit information concerning the em- ployees' attitudes toward the Union, the identities of the Union's supporters, and the employees' reasons for sup- porting the Union. "Such interrogation as to union sympa- thy and affiliation has been held to violate the Act because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer had obtained." N.L.R.B. v. West Coast Casket Co., Inc.. 205 F.2d 902. 904 (9th Cir. 1953). No valid pur- pose was shown that would justify asking such questions. These interrogations were conducted without any assur- ances being accorded to the interrogated employees that they had the right to engage in activities on behalf of the Union. Indeed, the employees were not even accorded an assurance that reprisals would not be directed against them. See N.L.R.B. v. Cement Transport, Inc.. 490 F.2d 1024. 1028 (6th Cir. 1974), cert. denied 491 U.S. 828. (1974): Trin- itY Memorial Hospital of Cudalhv. Inc.. 238 NLRB 809, 811 (1978); L'Eggs Products Incorporated, 236 NLRB 354. 390 (1978). Therefore, I find that Respondent did violate Section 8(a)(1) of the act by interrogating employees regarding their union sympathies and activities. The conclusion that Respondent's interrogations were co- ercive is only reinforced when viewed in light of the sur- rounding unlawful comments and conduct of Respondent. It is undisputed that Hedges had warned that representa- tion by the Union would affect handicapped employees ad- versely and, in substance, that, in light of the low level of production in the department, the effort to obtain union pay scales might lead to closure. No objective facts were produced by Respondent to demonstrate that these com- ments were based upon objective considerations. L'Eggs Products Incorporated, supra at 389. Hedges also warned employees that failure to withdraw their names as union supporters "could lead into a suit."3 During one of the conversations with Marsh. Pachek threatened impliedly that handicapped employees employed by Respondent might be replaced by machines. Kelman. in effect. threat- ened Marsh with termination if the Forbes' card were not transmitted to Loch without further delay and. addition- ally, he warned Marsh not to repeat their conversation to anyone else. Therefore, I find that by threatening employees with re- prisals, including closure, replacement of handicapped em- ployees, inability to obtain future employment. and law- suits, and by threatening to terminate an employee if he did not attempt to secure return of an authorization card signed by another employee and with severance of his personal relationship with Respondent's president if he repeated re- marks of that official. Respondent violated Section 8(a)(I) of the Act. Several other comments created the impression that Re- spondent had been engaging in surveillance of the employ- ees' activities. Illustrative of such comments is Kelman's 3 Liability for these comments cannot be evaded b Respondent simply by characterizing Hedges' comments as expressions or personal opinion. See J S. Abercrombie Companr. 83 NLRB 524. 530. affd per curium 180 F2d 578 (5th Cir 1950). remark to Ida Johnson. in reference to the Gihson Park meeting., that the employees could not get anI thiln accom- plished drinking beer. More hlatant wsere his repeated com- ments, emphasized by a phone call assertcdl coveing an additional report. that it was being reported to him regu- larly that Marsh was "an instigator" for the I nion. I'here- fore, I find that by such comments, Respondent created the impression that it was engaging in survcillance of employ- ees' union activities in violation of Section 8a)( I) of the Act. The foregoing incidents demonstrate Respondent's hos- tility toward representation of its emplo(sees b\ the Inion and serve as a background tor Respondent's dealings with the employees, on and after April 30(1 with respect to OWWPIE. While there is no evidence that OWWPI had been assisted or dominated by Respondent at the time of its formation and during its early existence, the absence of such evidence will not immunize conduct by Respondent which serves to maintain OWV'WPI as a siable entity. As the United States Court of Appeals for the First Circuit observed in N. L. R. B. v. unter Outdo,r Product/.. In.. 44(1 F.2d 876. 879 880 (1971): "Not only the acquisition of ma- jority support but also its tilttlenalc e canl be 'contanii- nated by the employer's aid.' IAM. lOol and lDi MaersI)i Local I35 v. I.. RB.. 311 UL.S. 72. 79 (194))." In the instant case. it is clear that by the end of 1976 ()OWWPI uias moribund. Its officers had decided upon its discontilnuance. A majority of' these employees who had seen it to attend the October 1976 meeting. announced in adsance bh a no- tice posted on Respondent's bulletin board. had afttirmed that decision. Almost all of' its dues mnone had been spent for the 1976 C(hristmas party. There had been no dealings. as far as the record discloses. with it b Respondent for almost a ear prior to conmmnencement of the nion's cam- paign. Hlowever, upon learning of the U nion's organizing eflort. Respondent acted immediaitel to reestablish and maintain a iable relationship. Thus, it met with the employees on April 30, asserted OW PI[l's continuing ,iability, ex- pressed illingness to reopen the collectise-bargaining agreement for renegotiation'4 suggested election of a com- mittee to conduct negotiations on OWW PI 's behalf, and entertained employee complaints and grievances. It took action to ensure that a committee was elected to act on behalf of O\N'WPI E by prov iding worktime for the emplo!,- ees to meet for the committee's selection and b monitoring the employees' progress in selecting such a c1mlittee, as shown by edges' query to the basement emnploees on Monday, May 2. and by Kelman's conlnent to Ida John- son with regard to the Gibson Park meeting. Once the com- mittee had been selected, Respondent established the for- mat tfor preparing for and for conducting negotiations by holding an employee meeting to introduce the full cormmit- tee, by establishing a period of time for the committee to prepare proposals. by suggesting that the emplosees use their lunchtime and a limited amount of' uorktimle to pre- pare those proposals, by paying for the commnittee's lunches on those occasions and by paytig tir ainy worktime lost by virtue of a late return from lunch. and b lentatively agree- " A mailer discussed n greater delail ;,rla 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to the proposals submitted by the committee. Only the filing of the initial charges halted Respondent's march toward a new collective-bargaining agreement with OWWPI E. It was in this manner that Respondent engineered and dictated every significant step in the chain of events that led to the reestablishment and resurgence of OWWPIE. At no point can it be said that OWWPIE's reemergence as a bar- gaining representative had been "the result of a choice freely made by the employees, in their own interests, and without regard to the desires of their employer...." N.L.R.B. v. Wemyss, 212 F.2d 465, 471 (9th Cir. 1954). To the contrary, given the background of interrogations, threats, and incidents conveying the impression of surveil- lance, taken in conjunction with Respondent's foregoing conduct to sponsor a resurgence of OWWPIE, the employ- ees' ultimate support for OWWPIE can only be viewed as based upon the fact that "they knew their employer desired it and feared the consequences if they did not [support OWWPIE]."Id. Therefore, I find that a preponderance of the evidence supports the General Counsel's ultimate allegation that Re- spondent violated Section 8(a)(2) and (1) of the Act by in- terfering with, assisting, and dominating OWWPIE on and after April 30. Certain acts of Respondent, taken in the course of rees- tablishing OWWPIE, constitute independent violations of Section 8(a)( 1) of the Act. As detailed in Section III, supra, both in individual conversations with employees and in the general meetings, Respondent solicited employee griev- ances and complaints. Since Respondent made no assur- ances to the employees that it was not promising to correct these complaints by inquiring about them, the questioning conveyed an implied promise to remedy those complaints, see Trinity Memorial Hospital, supra at 812. thereby violat- ing Section 8(a)(l) of the Act. Moreover, Respondent did, in fact, take action subse- quently to correct some of these problems, as discussed in section III, H, supra. Even were it assumed that these cor- rections were no more than incidents of Respondent's nor- mal policy of improving employees' working conditions, as Respondent contends, these changes during the late spring and summer would still constitute violations of Section 8(a)(1) of the Act. For, in light of its earlier questioning regarding the employees' complaints, its failure to assure the employees that these questions were not intended as promises to correct those complaints, and the fact that the actions taken by Respondent corresponded to some of the complaints voiced by the employees, the employees could reasonably assume that Respondent's actions were designed to remedy their complaints. Inasmuch as motivation is not an element of Section 8(a)(1) violations, see Dover Garage II, Inc., 237 NLRB 1015, 1016 (1978), and cases cited therein, Respondent thereby violated Section 8(a)(1) of the Act by providing fans for its facility. by providing dental coverage in its health insurance, by installing a fire alarm for deaf employees, and by its other corrective actions which corresponded to the employees' complaints. In any event, in light of Respondent's other unfair labor practices, I am convinced, and Pachek admitted as much, that these changes had been effected in an effort to satisfy the employ- ees' complaints, thereby removing their motivation for sup- porting the Union. Finally, as detailed above, Respondent made various sug- gestions to employees which had the effect of suggesting, on some occasions, and encouraging, on other occasions, with- drawal of support for and of authorization cards previously signed on behalf of the Union. In fact, on one occasion Kelman provided $5 so that a letter withdrawing support from the Union could be sent by registered mail. There is no valid reason under the Act to permit such conduct and, given Respondent's unlawful conduct in other respects, its conduct in this regard also violates Section 8(a)(l) of the Act. C. The Union's Majority Status As set forth in section III, A, Supra, the Union obtained authorization cards from 39 of Respondent's employees. Respondent challenges the validity of these cards on several grounds. First, it contends that the cards, being of the dual purpose variety, are inherently confusing. It is true that sev- eral of the employees were unable to explain the precise effect of the membership portion of the cards. Nevertheless, the cards clearly state that the signers desire to "solicit the privilege of becoming a member" and "hereby designate and authorize the delegated representative or representa- tives of said union to represent me in all negotiations for the purpose of collective bargaining with my employer ... ." Consequently, both purposes of the cards are set forth sepa- rately and in unambiguous language. This is all that is re- quired. "[E]mployees should be bound by the clear lan- guage of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calcu- lated to direct the signer to disregard and forget the lan- guage above his signature." '. L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575. 606 (1969). In the instant case, there was no such language of cancellation. Second, Respondent points to the fact that none of the cards are dated. This resulted from a conscious decision by Schuh based upon his desire to avoid payments during the period prior to a determination that the Union would be able to represent Respondent's employees. Nonetheless, his testimony that most of the cards had been solicited by April 30 and that all of them had been secured by May 5 was credible, being uncontroverted by either other reliable testi- mony or by objective considerations. The fact that these cards were not dated does not affect the substantive pur- pose for which they were signed. Nor would it be consistent with the purposes of the Act to deprive employees of their designations of a representative merely because they had failed to list the dates on which they had signed the cards, where other evidence is available to supply the necessary information in this regard. See discussion Ultra-Sonic De- Burring, Inc. of Texas, 233 NLRB 1060, 1067 (1977): Mid- western Manufacturing Company, Inc., et al., 158 NLRB 1698, 1699-1700 (1966). Third, in the case of three cards-those of Scott Rand Gorman, Betty F. Wagner, and Cathleen Jeanette Kas- per-neither the name nor the local number of the Union have been filled in. Further, Anna Swan testified that the name and number of the Union had not appeared on her card when she had signed it, although they did appear on 364 WORLD WIDE PRESS, INC. the card when produced at the hearing. Doris Wise, who testified twice regarding this matter, testified initially that she did not "remember" if these blanks had been completed at the time that she had signed the card. Later, called as a witness by Respondent, she testified that she "didn't see" the name and number rubber stamped on the card when she had signed it. Doreen G. Wolf testified that the Union's name and number had not been rubber stamped on her card when she had signed it. However, the name and num- ber of the Union had been rubber stamped on both of these cards when they were produced at the hearing. Based upon this testimony, Respondent argues that these cards should not be counted as they did not show who the employees were designating as their representative. Yet, it had been Schuh who had solicited the cards of Wagner, Kasper, and, in conjunction with Cecelia Eide and her husband, Wolf. He testified that when soliciting cards, it had been his practice to tell the employees that the "ITU" in Great Falls3 was attempting to organize Respon- dent. Similarly, Cecelia Eide testified that she had asked Wise "if she would like to join the ITU .... " at the time that she had solicited Wise's signature on the card. Gorman testified that he had signed his card at a meeting at the Pennant Bar at which Schuh and another official of the Union had "claimed the Typographical Union could do more for the people because it was the people." Indeed, examination of the card, itself, discloses that the initials "ITU" appear at several places and Respondent produced no evidence that any employee had not known the identity of the union for whom he or she had signed a card. While the obviously preferable practice is to list the name of the labor organization being designated on the card be- fore it is signed by an employee, the absence of such desig- nation is not fatal to the validity of an authorization card as long as the circumstances of its execution show that the signer knew the identity of the labor organization being designated as the bargaining representative. See South- bridge Sheet Metal Works, Inc., 158 NLRB 819, 827 (1966), enfd. 380 F.2d 851 (Ist Cir. 1967); W. C. Richards Co., 199 NLRB 1069, 1077 (1972), enfd. by unpublished order of July 17, 1973, 85 LRRM 2187 (7th Cir.); see also Tennessee Shell Company, Inc., 212 NLRB 193, 204 (1974), and Cen- tury Lumber Company, Inc., 168 NLRB 221, 228, fn. 12 (1967). Since there is no evidence that any employee who signed a card on behalf of the Union was unaware of the labor organization being designated as his or her represent- ative and inasmuch as the employees were told which union was conducting the campaign, I find that the absence of the Union's name and number on some of the cards did not mislead those who had signed those cards. Accordingly, these cards are valid. Neither the fact that Schuh filled in portions of the cards signed by employees, nor the fact that the cards stated that the employees had paid $5 "as evidence of good faith in my application for membership," when, in fact, no employee had done so, affect the validity of the cards. With regard to the former, the printed portion of the cards, as quoted above, recites the designation of representative. Nothing that any person other than the signers filled in either added 3" As far as the record discloses, the Union is the only local affiliated with the International Typographical Union, AFL-CIO. in the Great Falls area. to36 or detracted from that printed authorization. Therefore, the fact that the signer did not personally fill in all of the information on the cards does not detract from their valid- ity in this respect. See Hennr Spen & Company, Inc., 150 NLRB 138, 149 (1964). Similarly, since the $5 payment por- tion pertains to the membership aspect of the card and has not been shown to detract from the authorization of repre- sentative portion, I find that these insertions do not invali- date the cards insofar as they designate the Union as the employees' representative. Doris Wise testified that she had not read the card before signing it. However, she agreed that at the time that she had signed the card, she had thought that it was "a petition to pass around who wanted to join ITU." Moreover, she agreed that Cecelia Eide had been present when the card had been signed by her and she did not dispute Eide's testi- mony that, as quoted above, she (Eide) had asked Wise of she would like to join the Union. Accordingly, it is clear that Wise had been told what she was signing, without re- gard to whether she had read it before doing so. Ronald Williams testified that after signing his card, he had attended the Pennant Bar meeting where International Representative Miess had raised the issue of whether Wil- liams' duties might be supervisory?' After Williams had de- scribed his duties, Miess had said that it might pose a prob- lem if Williams were a supervisor and that it would be best if he left the meeting and did not attend any further meet- ings. Thereafter, Williams made no attempt to attend any other meetings called by the Union. While Section 14(a) of the Act preserves generally the right of supervisors to be members of unions, their participation in organizing cam- paigns has created problems in some situations with respect to charges of employer sponsorship and assistance. It is clear from the content of the conversation, as described by Williams, that Miess, as he testified was his practice, had simply been attempting to avoid a potential problem con- cerning Williams' participation in the Union's campaign, though he was neither conceding thereby that Williams was, in fact, a supervisor nor was he rejecting Williams' continued support of the Union, as evidenced by his having signed a card. Nor did Williams claim that he had subse- quently sought to withdraw his support from the Union. The incident was, in other words, no more than a simple exercise in prudence, not an act of rejection. Consequently, I find that this incident did not render Williams' card in- valid as a designation of the Union as his bargaining repre- sentative. In sum, I find that the Union obtained a total of 38 valid authorization cards" and that by May I the Union pos- sessed cards from a majority of the employees in the unit, ' To the extent that the Union's name and number might be construed as an addition, that has already been discussed. 17 In this proceeding, there is no contention that Williams had been a supervisor within the meaning of Section 2(1 I) of the Act. Ds Considerable testimony was devoted to the validity of the card signed by Forbes in light of his educational handicap, and considerable analysis could be devoted to the issue of the capacity of cardsigners who are educationally handicapped. However. without excluding Forbes from the total employee complement, it is unnecessary to reach that issue since at the time of the Union's demand for recognition, on May 17, the Union had 38 other valid cards in a unit that at most, assuming that Phillips and Patton should be included in the unit. numbered 75 employees Accordingly. I find it unneces- sary to rule upon the validity of the card signed hb Forbes. 365 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD possessing cards from 36 of 68 or 70 employees employed as of that date. Respondent, however, points to the fact that several of the cardsigners had later notified the Union of their desires to revoke their authorization cards and that initially, Schuh, apparently unaware of the unfair labor practices of Respondent, had agreed to these withdrawals. The earliest possible instance of an employee attempting to withdraw a card was Feist's request, made to Schuh follow- ing Hedges' comment concerning the possibility of a law- suit being instituted if the employees did not withdraw their cards. Thus, Feist's request had been the direct product of an unfair labor practice. The other withdrawal requests oc- curred in May following Respondent's remarks at the April 30 meeting and after several separate unlawful conversa- tions with employees by Kelman and Hedges. In view of' these unfair labor practices and in light of the fact that they had been designed to dissuade the employees from continu- ing to support the Union, I find that these revocations were, as some of the employees who tendered them testified, the direct product of Respondent's unfair labor practices de- signed to achieve that very end. At no point can it be said with any certainty that the choice to withdraw these cards had been made by the employees free of the coercive atmo- sphere created by Respondent's efforts to erode the Union's support. Accordingly, I find that none of these revocations can be considered to invalidate the cards signed earlier by these employees. See L. Eggs Products Incorporated, supra at 420. Moreover, the fact that the Union accepted some of the withdrawals, promising to refrain from further use of the cards to support its representation claim, does not alter that conclusion. There is no showing that Schuh had been aware of Respondent's unlawful conduct at the time that he had agreed to cease relying upon the cards of the employees who had contacted him. Rather, he was merely attempting to honor a request made on the basis of what he believed to be the unfettered personal choices of those employees. Ob- viously, he had no intention of endorsing Respondent's un- fair labor practices and of permitting Respondent to reap the rewards of its unlawful object underlying that miscon- duct. Therefore. I find that Schuh, every bit as much as the employees, had become the victim of Respondent's unfair labor practices and that the Union should not be bound to his agreements not to use the cards of these employees to support its claim of representative status. D. The Bargaining Order In this section two basic contentions must be addressed. First, whether Respondent's unfair labor practices are of a nature that their lingering effect would preclude the possi- bility of a fair rerun election. Second, if a bargaining order would ordinarily be required, whether Respondent's bar- gaining relationship with OWWPIE precludes entry of such an order. Clearly, Respondent's unfair labor practices are of such a nature that entry of a bargaining order is necessary. The unfair labor practices committed were serious in nature. For example, Hedges' threat of closure is one of "the most serious forms of interference with protected employee rights." and the withholding of merit increases constituted a "withdrawal of benefits [that] is a blatant example of Re- spondent's raw economic power over the employees which it wielded for antiunion purposes .... " Chandler Motors, Inc., 236 NLRB 1565, 1568 (1978). Moreover, Respondent's unlawful conduct was initiated almost immediately after it had learned of the Union's campaign and was conducted over a 7-month period prior to the election. Its unfair labor practices were committed by or with the knowledge and acquiescence of Respondent's highest official, President Kelman. They were directed against and affected every em- ployee in the unit. Furthermore, in weighing the effect of unfair labor prac- tices, on the need for entry of a bargaining order, consider- ation must be accorded to the "likelihood of' recurrence in the future." Gissel, supra, 395 U.S. at 614. Here, Respon- dent has already had one bite at the election apple. Yet, hardly had the ink dried on the settlement agreement when Respondent suspended the granting of merit increases, placing the blame on the Union, and entertained an official OWWPIE delegation, for the first time, at a shareholders' meeting during which initial authorization was given to un- dertake negotiations for a retirement plan once "the labor problem had been resolved." Thereafter, Respondent pur- sued the dual course of impliedly promising to institute such a plan and of blaming the Union for its inability to complete negotiations sooner for such a plan. In short, hav- ing destroyed the laboratory conditions under which it had agreed to conduct one election, Respondent is in an unten- able position to now argue, notwithstanding its own exten- sive and pervasive unfair labor practices and its own disre- gard of its promises in the settlement agreement, that a rerun election can safely be directed. There is simply no assurance that Respondent will not again set forth on a course of unlawful conduct to defeat the Union. Turning to the second issue, in section IV, B, supra, I have found that, commencing in April, Respondent em- barked upon a plan to revive the dormant OWWPIE as a device to counter and defeat the employees' efforts to ob- tain representation by the Union. Even a cursory review of the facts of' OWWPIE's resurgence discloses a total domi- nance by Respondent of the activities conducted in OWWPIE's name and a total absence of any indication of independent employee desire for representation by OWWPIE. It was Respondent who had initiated OWWPIE's reestablishment. It was Respondent who had shepherded its progress toward reaching a new agreement until halted by the filing of unfair labor practice charges. In short, in light of the evidence of Respondent's sponsorship and domination of OWWPIE's resurrection and operations thereafter, there is no basis for finding that OWWPIE's ex- istence should serve to bar issuance of a bargaining order on behalf of the Union as a remedy for Respondent's unfair labor practices. But, argues Respondent, the 1976 collective-bargaining agreement, entered into at a time when there was no evi- dence of domination of or assistance to OWWPIE, should stand as a bar to any claim of representation by the Union since, urges Respondent, that agreement was never re- opened and, accordingly, is still effective. In other words, Respondent is arguing that the employees' actions in 1976 to dissolve OWWPIE were not sufficient to render OWWPIE defunct and to remove its collective-bargaining 366 WORLD WIDE PRESS, INC. agreement as a bar to outside claims of representation. See Hershey) Chocolate Corporation, 121 NLRB 901 (1958). Yet, were Respondent so sure of its position that the employees' conduct in 1976 had not rendered OWWPIE defunct, one wonders why Respondent had felt it necessary to engage in the conduct in which it did engage to revive OWWPIE. That it felt it necessary to do so is a strong indication that Respondent recognized that OWWPIE had been aban- doned by the employees and that it was no longer a viable bargaining representative. In any event, whatever the status of OWWPIE's agree- ment prior to the advent of the Union's campaign, in an effort to undermine the source of the Union's support Re- spondent reopened that agreement for renegotiation, after learning of the Union's campaign, to provide a mechanism for correcting the reasons that had led the employees to seek representation by the Union. Thus, at the April 30 meeting, after asserting the continued validity of OWWPIE's agreement, Respondent offered to reopen it for renegotiations and Kelman subsequently received and ten- tatively agreed to proposals submitted by the committee elected at Respondent's behest. In an effort to escape the consequences of its action, Re- spondent characterizes these proposals as mere grievances submitted within the framework of an existing agreement. Yet, it did not dispute the testimony that among the pro- posals submitted were ones for higher wages and for an additional holiday-items already covered by the 1976 agreement. Moreover, Respondent had already secured, on numerous occasions, lists of employee complaints. Thus, it hardly seemed necessary for it to create, as it did, a commit- tee and to accord it 60 days to arrive at proposals when it not only already possessed such information, but was acting to correct some of the complaints. In short, the committee was created to do something more than merely submit em- ployee complaints-it was designed to renegotiate a new collective-bargaining agreement for OWWPIE that would correct employee dissatisfaction with the old one and that would unequivocally serve to bar any representation claim by the Union. It is settled that the Board "cannot certify an organiza- tion as representative of employees for the purposes of col- lective bargaining when the . . . evidence [shows] the com- plete subjection of the organization to the employer." Phelps Dodge Corporation, United Verde Branch, 6 NLRB 624, 630 (1938). Consequently, neither the 1976 collective- bargaining agreement nor the existence of OWWPIE, as revived and sponsored by Respondent, serve to preclude issuance of a bargaining order on behalf of the Union in light of the unfair labor practices committed by Respon- dent.3 9 3' While the General Counsel alleges that Respondent violated the Act by engaging in collective-bargaining negotiations with OW%'PIE following the December I election, I make no finding regarding whether such conduct violated the Act. It is settled that a bargaining obligation does arise in favor of a prevailing labor organization following an election, notwithstanding the pendency of objections. See, e.g., Mike O'Connor Chevroler-Buick-GMC Co., e al., 209 NLRB 701, 703-704 (1974), reversed on other grounds, 512 F.2d 684 (8th Cir. 1975). Here, the General Counsel agreed to the settlement that led to the December I election in which OWWPIE prevailed. Aside from the fact that negotiations have since been conducted between Respondent and OWWPIE. the record contains very little showing the circumstances which led to and the substance of those negotiations. Inasmuch as the remedy provided for the violations found requires disestablishment of OWWPIE and The remaining question concerns the effective date of the bargaining order. Lately. where there has been a recogni- tion demand following attainment of majority and unair labor practices. the Board has dated the bargaining order from the date of the demand, regardless of the remedial nature of such an order, the prior unfair labor practices, and the prior majority status of the Union. See. e.g., I avne Trophy Corp., 236 NLRB 299, fn. 2 (1978): .- Ihert.son .litu- facturing Company, 236 NLRB 633 (1978). In the instant case, however, such an approach may leave unremedied certain unfair labor practices committed by Respondent. For, while the record contains evidence of some of the changes made by Respondent in its effort to remedy the sources of employee dissatisfaction and the approximate dates of some of those changes, it is not so inclusive as to preclude the possibility that some changes were effected be- tween May 1. when the Union attained majority status and by which date Respondent had embarked upon its caml- paign of unfair labor practices designed to undermine the Union. and May 17, when the Union demanded recogni- tion. Consequently, to date the bargaining order remned from May 17 gives rise to the possibility of leaving "unremedied [Respondent's] unilateral changes in working conditions made after [the Union] had established its majorit) status." Trading Port, Inc., 219 NLRB 298. 301 (1975). ClearlN, if changes did occur during the 16-day period between Max I and 17, they had been designed to destroy employee sup- port for the Union and Respondent should be obligated to bargain with the Union, upon request. concerning those changes. See Michigan Products, Inc., 236 NLRB 1143 (1978). Therefore, I find that Respondent's obligation to bargain with the Union arose on May I and that the refusal to bargain in violation of Section 8(a(5) and ( I) of the Act occurred as of May 17. See Twilight lav'n,. Incorporated, 235 NLRB 1337 (1978). V. riHE i.FF(TI OF tHE UNFAIR LABOR PRA(II('IS IPON COtMM ERC(E The activities of World Wide Press, Inc.. set forth above. occurring in connection with its operations described in sec- tion I above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States, and tend to lead, and have led. to labor disputes burdening and obstructing commerce and the free flo of commerce. CON(CIlUSIONS OF LAW 1. World Wide Press, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Great Falls Typographical Union No. 256. Interna- tional Typographical Union AFL-CIO. and Organization bargaining with the Union, it seems imprudent to attempt to consider the effect of bargaining with a dominated union, after it presailed in 3 Board election, on the basis of so sparse a record concerning that bargaining, since the foregoing doctrine may apply differentl to different situations, depend- ing upon the circumstances in which the negotiations are initiated and con- ducted. 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of World Wide Press, Inc. Employees are each labor or- ganizations within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union sympathies and activities and concerning the union sympa- thies and activities of other employees, by threatening em- ployees with closure, replacement by machines, and other reprisals because of their union activities, by creating the impression of surveillance of employees' union activities, and accusing one employee of being a union instigator, by soliciting complaints and grievances that had led employees to seek representation in circumstances where a promise of correction was implied, by expressly promising to correct matters which had given rise to employee dissatisfaction, by correcting and changing working conditions that had given rise to employee dissatisfaction and to desires for represen- tation, by suggesting and encouraging employees to with- draw their authorizations for the Union to act as their bar- gaining representative, by campaigning for and promoting the cause of one of two labor organizations competing for employee support, by suspending the granting of merit in- creases to employees during the preelection period despite a history of granting such increases, by announcing institu- tion of negotiations for improved benefits for employees in an effort to influence their decisions in a representation election, and by placing the onus on a labor organization, which has sought to represent the employees, for the sus- pension of merit increases and for the cessation of negotia- tions for a retirement program, World Wide Press, Inc., violated Section 8(a)(1) of the Act. 4. By reestablishing a moribund labor organization, by telling employees that that labor organization was still their bargaining representative at a time when they were seeking representation by another labor organization, by expressing willingness to enter into negotiations with the reestablished labor organization, by directing employees to select officials to act as the reestablished labor organization's negotiators, by monitoring and overseeing the employees' progress toward selecting such officials, by directing employees to select officers and to commence collecting dues on behalf of the reestablished labor organization, by granting worktime for employees to engage in activities on behalf of the rees- tablished labor organization, by paying for lunches at which proposals were to be formulated on behalf of the reestablished labor organization, by entertaining and agree- ing tentatively to the proposals submitted on its behalf, by promoting the cause of and campaigning on behalf of the reestablished labor organization at a time when it was par- ticipating in a representation election in competition with another labor organization, by promising benefits to em- ployees if they selected the reestablished labor organization as their representative in a representation election, and by selecting a speaker for the reestablished labor organiza- tion's preelection meeting, Respondent had dominated and interfered with the formation and administration of a labor organization and has contributed financial and other sup- port to it in violation of Section 8(a)(2) and (1) of the Act. 5. To the entent that they correspond to the foregoing unfair labor practices, the objections filed by Great Falls Typographical Union No. 256, International Typographi- cal Union, AFL-CIO, are sustained and warrant setting aside the election conducted in Case 19-RM-1451. 6. A unit appropriate for collective bargaining is: All production and maintenance employees employed by World Wide Press, Inc., at its Great Falls, Montana, facil- ity; excluding office clerical employees, guards and supervi- sors as defined by the Act. 7. At all times material since May 1, 1977, Great Falls Typographical Union No. 256, International Typographi- cal Union, AFL-CIO, has been the exclusive collective-bar- gaining representative of the employees in the above-de- scribed unit within the meaning of Section 9(a) of the Act. 8. By failing and refusing on and after May 17, 1977, to recognize and bargain with Great Falls Typographical Union No. 256, International Typographical Union, AFL- CIO, as the representative of the employees in the above- described unit, Respondent violated Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 10. Respondent did not violate the Act in any other manner. THE REMEDY Having found that World Wide Press, Inc., engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take cer- tain affirmative action to effectuate the policies of the Act. World Wide Press, Inc., shall be ordered to make whole all employees for the losses they may have suffered by vir- tue of its discontinuance of merit increases on and after September 21, 1977, and for any other losses that they may have sustained as a result of the changes in working condi- tions made by World Wide Press, Inc., in its effort to under- mine support for Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, by payment to them of the amounts that they would have re- ceived but for this unlawful conduct, ° with backpay to be computed on a quarterly basis and with interest to be com- puted in the manner prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 139 NLRB 716 (1962), enforcement denied on different grounds, 322 F.2d 913 (9th Cir. 1963). World Wide Press, Inc., shall also be ordered to disestab- lish Organization of World Wide Press, Inc. Employees and to recognize and bargain with Great Falls Typographical Union No. 256, International Typographical Union, AFL- CIO. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, World Wide Press, Inc., Great Falls, Montana, its officers, agents, successors, and assigns, shall: 4O While the General Counsel advancea, in effect, a formula whereby these increases could be computed. it seems best to leave this determination to the compliance stage of this proceeding since at that point Respondent's books and records must be made available to the Board and a greater degree of accuracy can be attained in fashioning a proper formula. " In the event no exceptions are filed as provided by Sec. 102.46 of the 368 WORLD WIDE PRESS, INC. 1. Cease and desist from: (a) Interrogating employees concerning their union sym- pathies and activities and concerning union sympathies and activities of other employees; threatening employees with closure, replacement by machines, and other reprisals be- cause of their union activities; creating the impression of surveillance of employees' union activities and accusing em- ployees of being union instigators; soliciting complaints and grievances that led employees to seek representation and, either expressly or impliedly, promising to correct those matters; correcting or changing working conditions that have given rise to employee desires for representation; sug- gesting and encouraging employees to withdraw their au- thorizations for a union to act as their bargaining represent- ative; campaigning for or promoting the cause of any labor organization; suspending the granting of merit increases to employees during the period prior to any representation election; announcing institution of negotiations for a retire- ment plan or for improved benefits in an effort to influence employees' choice concerning their bargaining representa- tive, or placing the onus on any labor organization seeking an election for suspension of benefits or for cessation of consideration of instituting improved benefits. (b) Dominating or interfering with the reestablishment and administration of Organization of World Wide Press, Inc. Employees or any successor thereto, or any other labor organization, or assisting and supporting such labor organi- zations. (c) Refusing to recognize and bargain collectively with Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, as the exclusive bargain- ing representative of the employees in the following appro- priate bargaining unit: All production and maintenance employees employed by World Wide Press, Inc., at its Great Falls, Montana, facility; excluding office clerical em- ployees, guards and supervisors as defined by the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed them under Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Withhold all recognition from, repudiate, and com- pletely disestablish Organization of World Wide Press, Inc. Employees and any successor thereto. Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (b) Make whole all employees for any loss of pay they may have suffered as a result of the suspension of payment of merit increases on and after September 21, 1977, and as a result of any other loss of pay suffered as a result of changes undertaken to undermine support for Great Falls Typographical Union No. 256, International Typographi- cal Union, AFL-CIO, in the manner set forth in the section entitled "The Remedy." (c) Preserve and make available to the Board or its agents all payroll and other records necessary to compute the backpay rights set forth above in the section entitled "The Remedy." (d) Upon request, recognize and bargain, effective of May 1, 1977, with Great Falls Typographical Union No. 256, International Typographical Union, AFL-CIO, con- cerning any changes in terms and conditions of employ- ment of employees in the above-described bargaining unit and with respect to rates of pay, wages, hours, or other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. (e) Post at its Great Falls, Montana, facility copies of the attached notice marked "Appendix A."4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 19, after being duly signed by World Wide Press, Inc.'s authorized representative, shall be posted by World Wide Press, Inc., immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by World Wide Press, Inc., to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order what steps World Wide Press, Inc., has taken to comply herewith. IT IS FURTHER ORDERED that Case 19-RM-1451 be sev- ered from Cases 19-CA-9433, 9526, and 10018, and that Case 19-RM-1451 be returned to the Regional Director for Region 19 for his consideration of my recommendations that the election conducted in that case be set aside and that, in light of my conclusion that a bargaining order is warranted, Case 19-RM-1451 be dismissed in its entirety. 41 Absent such a request, this is not to be construed to require recission of such benefits as were granted. See Republic Engraving and Destgning Com- pany, a Division of Nutter, Inc., et al., 236 NLRB 1150, fn. 18 (1978). 4" In the event that this Order is enforced by a judgment ofa 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." 369