RTP Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 466 Miller Waste Mills, Inc., d/b/a RTP Company and International Union, United Automobile, Aero- space & Agricultural Implement Workers of America, UAW. Case 18–CA–14768 July 11, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH On September 22, 1998, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, each filed answering briefs, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions2 as modified and more fully explained below, and to adopt the recommended Order as modified and set forth in full below.3 The judge found, inter alia, that the Respondent unlaw- fully withdrew recognition from the Union. For the rea- sons explained below, we agree with the judge. Background The Respondent manufactures thermo plastic com- pound at its facility in Winona, Minnesota. Local 2340, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW (the Union) became the collective-bargaining representative of the Respondent’s production and maintenance em- ployees pursuant to an affiliation vote held on February 11, 1996.4 On February 20, 1997, the Board ordered the Respondent to recognize and bargain with the Union.5 1 The judge found, citing Bethlehem Steel Co., 136 NLRB 1500 (1962), enf. denied on other grounds 320 F.2d 615 (3d Cir. 1963), that the Respondent did not violate the Act by ceasing to deduct union dues from employees’ paychecks. There are no exceptions to this finding. The Respondent challenges the validity of the complaint, issued on May 21, 1998, while Frederick Feinstein was Acting General Counsel, on the ground that Feinstein’s appointment was illegal. On October 22, 1998, former President Clinton, pursuant to his constitutional power to make recess appointments, appointed Feinstein General Counsel. In that capacity, on November 5, 1998, Feinstein expressly ratified the Regional Director’s issuance of the complaint in this case. In light of that action, the Respondent’s argument is moot. See Federal Election Commission v. Legi Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996), and Doolin Savings Bank v. Office of Thrift Supervision, 129 F.3d 203, 212–214 (D.C. Cir. 1998). 2 Conclusion of Law 5 is modified to reflect that the Respondent’s conduct described therein also violated Sec. 8(a)(5). Conclusion of Law 6 is modified to reflect that the Respondent’s conduct described therein violated Sec. 8(a)(5) and (1). 3 We find it unnecessary to pass on the judge’s dismissal of the 8(a)(5) surface bargaining allegation. The finding of such an additional violation would be cumulative and would not affect the remedy. We shall modify the recommended Order to reflect the additional 8(a)(5) violations we find here, as well as violations the judge found but inadvertently omitted from the recommended Order. The parties commenced bargaining on August 26, 1997. They met seven times between that date and Feb- ruary 26, 1998, at which time the Respondent withdrew recognition from the Union. At the August 26, 1997 session, the Union proposed, inter alia, that the Respondent grant annual wage in- creases, improve health insurance benefits, and decrease employee costs for health insurance. The Respondent countered with a proposed wage freeze for 1997 and 1998, and agreed to discuss changes in health insurance benefits with the understanding that any increased costs would be paid by employees. The Respondent’s practice was to grant annual wage increases in December or January of each year. At the December 11, 1997 meeting, the Union stated that it would not oppose a wage increase for unit employees. The Union stated it would not file an unfair labor prac- tice charge if the Respondent granted employees the an- nual wage increase that the Respondent had historically provided around the beginning of each year. The Union again requested that the Respondent improve health in- surance benefits. The Respondent did not commit to a wage increase, but did agree that if changes were made to health insurance benefits, there would be no “net loss” to employees. On January 2, 1998,6 the Respondent sent a letter to unit employees, stating, in pertinent part As you know, negotiations with the UAW have been ongoing for a long time but we are still a long way from settlement. A Federal mediator has been involved in the last three meetings but there has been little progress. . . . . During [the] December 11 meeting, the UAW Union Committee stated they would allow RTP to give the employees an increase in pay and to de- crease insurance costs. . . . You will recall when RTP raised wages last year, the UAW filed an unfair labor practice charge against us. . . . . We appreciate the need for increased wages and decreased insurance costs, but we cannot handle 4 The Winona Free Union had previously represented the unit em- ployees. 5 RTP Co., 323 NLRB 15. 6 All subsequent dates are in 1998 unless indicated otherwise. 334 NLRB No. 69 RTP CO. 467 these things piecemeal. Wages and insurance are only part of the complete economic package, which also includes . . . other issues which we’ve always dealt with at the same time. . . . . This is a sad occasion for all of us as this marks the first time in RTP’s long history we won’t be giv- ing you a wage increase at this time. Please under- stand this is not the way we do business. We are continually exploring ways to ensure that neither our employees nor RTP are damaged any further by this fiasco. On January 12, the Union reminded the Respondent of its understanding that “the raise would be given if there were no unfair labor practice charges filed.” The Union stated that it would file a charge if the Respondent did not retract its January 2 letter and give the employees a wage increase “as [the Respondent has] always done in the past.” On January 15, the Respondent received an employee petition requesting that the Respondent “grant us a fair and decent wage increase and better insurance for 1998.” In a cover letter, the employees who signed the petition stated that the petition was not connected with the Union: “It is simply a request from your loyal employees.” On January 16, the Respondent wrote to its “loyal em- ployees” that, in response to their petition and “[r]egardless of the UAW and the NLRB and all of those problems, we are going to do what you asked,” and that it was granting them a 51-cent-per-hour wage increase effective January 12.7 In addition, the Respondent stated that it hoped it could reduce the cost for health insurance, and would get back to employees “shortly.” As promised, the Respondent did get back to its em- ployees. On February 13, the Respondent told employ- ees that the Respondent was reducing their insurance costs. The Respondent also reminded employees that it had just increased their wages. On February 25, the Respondent received notice that a majority of employees had signed a petition stating that they no longer wanted to be represented by the Union. At the February 26 negotiating session, the Respondent informed the Union that, based on the employee petition, the Respondent would no longer recognize and bargain with the Union. After withdrawing recognition from the Union, the Respondent refused to comply with the Un- ion’s information requests, refused to allow the Union to participate in the grievance process or to allow an em- 7 This was the largest across-the-board wage increase the Respon- dent had granted to employees in at least 38 years. ployee to take time off for union business, and engaged in unilateral dealings with unit employees.8 Discussion 1. We agree with the judge that the Respondent’s January 2 letter to employees misrepresented the Union’s bargaining positions and blamed the Union for prevent- ing the employees from receiving their customary annual wage increase. As the judge observed, “It is not surpris- ing that employees would become alienated from a Un- ion which they believed had prevented a wage increase.” Thus, as the judge found, the letter would tend to inter- fere with the exercise of Section 7 rights in violation of Section 8(a)(1) of the Act.9 We also find, as explained below, that the Respon- dent’s January 16 and February 13 letters informing em- ployees of improved wages and benefits constituted di- rect dealing with employees in violation of Section 8(a)(5) of the Act. The Respondent’s January 16 letter informed employ- ees that the Respondent was going to “do what you asked” and grant a wage increase “[r]egardless of” the Union. The Respondent’s February 13 letter announced a reduction in employee health insurance premium costs. It is undisputed that the Respondent did not consult with the Union before sending the letters to its employees in response to the January 15 “loyal employee” petition. The Respondent’s conduct in bypassing the Union when it sent the January 16 and February 13 letters regarding working conditions constitutes direct dealing with em- ployees in violation of Section 8(a)(5) and (1) of the Act.10 We agree with the judge’s finding that the Union waived its right to bargain over granting the wage in- crease and reducing employee insurance premiums. Nevertheless, the Respondent had an obligation to con- tinue dealing with its employees through their collective- bargaining representative. As the Board explained in Allied-Signal, 307 NLRB 752, 754 (1992), a finding that a union waived its bargaining rights so as to permit uni- lateral action by an employer cannot be equated with “a finding that the Union also agreed that the Respondent 8 The Respondent informed its employees that it was reviewing its medical, 401(k), vacation, and other benefits; implemented a superior attendance incentive program; and told employees of the availability of health insurance coverage through a new insurance carrier. 9 Hillhaven Rehabilitation Center, 325 NLRB 202, 220 (1997), enf. in relevant part mem. 178 F.2d 1296 (6th Cir. 1999). 10 See Basic Metal & Salvage Co., 322 NLRB 462, 465–466 (1996); Detroit Edison Co., 310 NLRB 564, 565 (1993); and Bueter Bakery Corp., 223 NLRB 888, 890 (1976). See also Modern Merchandising, 284 NLRB 1377, 1379 (1987), where the Board found that the em- ployer engaged in unlawful direct dealing when it sent a letter to em- ployees regarding workplace improvements. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468 could deal with employees as if the Respondent’s work force had no bargaining representative. Direct dealing with employees goes beyond mere unilateral action.” Here, there is no evidence that the Union waived its dis- tinct right to object to direct dealing by the Respondent. In sum, the Respondent’s conduct in ignoring the Un- ion and dealing directly with employees “is inconsistent with the [Respondent]’s statutory bargaining obligation, tends to undermine the status of the bargaining agent, and interferes with employees’ Section 7 rights.”11 2. Unit employees acted quickly in response to the Respondent’s direct dealing: By February 25, a majority of employees had signed a petition stating that they no longer wished the Union to represent them. The Re- spondent reacted quickly in response to the petition: On February 26, the Respondent informed the Union that it would no longer recognize and bargain with it. The judge found that the Respondent was not entitled to withdraw recognition and cease bargaining with the Union. In adopting the judge’s finding that the Respon- dent violated Section 8(a)(5) by withdrawing recognition from the Union, we rely solely on the fact that the peti- tion on which the Respondent relies was tainted by the Respondent’s unfair labor practices. The Board has long held that an employer may not withdraw recognition from a union while there are unre- medied unfair labor practices tending to cause employees to become disaffected from the union. Olson Bodies, 206 NLRB 779, 780 (1973). As one court has stated, a “company may not avoid the duty to bargain by a loss of majority status caused by its own unfair labor practices.” NLRB v. Williams Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995).12 The question, then, is one of causation. In cases in- volving unfair labor practices other than a general refusal to bargain, the Board has identified several factors as relevant to determining whether a causal relationship exists between the unremedied unfair labor practices and the subsequent expression of employee disaffection with an incumbent union. These factors include the follow- ing: (1) the length of time between the unfair labor prac- 11 Royal Motor Sales, 329 NLRB 760, 761 (1999), enfd. 2001 WL 59043 (D.C. Cir. 2001), citing Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683–684 (1944). 12 On March 29, 2001, the Board issued Levitz Furniture Co. of the Pacific, 333 NLRB 717, in which it “reconsider[ed] whether, and under what circumstances, an employer may lawfully withdraw recognition unilaterally from an incumbent union.” Levitz, however, has no bearing on our decision today because Levitz expressly limited its analysis “to cases where there have been no unfair labor practices committed that tend to undermine employees’ support for unions.” Id. at fn. 1. In addition, the Board held in Levitz that its analysis and conclusions in that case would only be applied prospectively. Id. at 723. tices and the withdrawal of recognition; (2) the nature of the violations, including the possibility of a detrimental or lasting effect on employees; (3) the tendency of the violations to cause employee disaffection; and (4) the effect of the unlawful conduct on employees’ morale, organizational activities, and membership in the union. Master Slack Corp., 271 NLRB 78, 84 (1984). If a causal relationship is found between unfair labor practices and the loss of employee support for a union, the evidence on which an employer has based its with- drawal of recognition is said to be “tainted,” and the withdrawal is unlawful. An employer cannot rely on an expression of disaffection by its employees which is at- tributable to its own unfair labor practices directed at undermining support for the union.13 As set forth above, the Respondent committed the fol- lowing unfair labor practices: • On January 2, blaming the Union for prevent- ing a wage increase; • On January 16, bypassing the Union and deal- ing directly with unit employees by its letter granting employees a wage increase; • On February 13, bypassing the Union and dealing directly with unit employees by its let- ter notifying employees of a reduction in their health insurance costs. Based on the Master Slack principles, we find a strong causal connection between these unfair labor practices and the employee petition on which the Respondent re- lied in withdrawing recognition from the Union. With respect to the first Master Slack factor (lapse of time), the unfair labor practices occurred between Janu- ary 2 and February 13. The antiunion petition was sub- mitted to the Respondent within 6 weeks of the January 16 direct dealing letter and within 2 weeks of the Febru- ary 13 direct dealing letter. Thus, the record shows a close temporal proximity between the Respondent’s un- fair labor practices and its withdrawal of recognition. With respect to the second Master Slack factor (the na- ture of the conduct), we find that the Respondent’s unfair labor practices, which were disseminated throughout the bargaining unit, would reasonably tend to have lasting effects on employees. As one court has explained, an employer’s “go[ing] over the head of the [Union] to deal individually with the employees . . . tend[s] inevitably to weaken the authority of the [Union] and its ability to represent the employees in dealing with the Company.” 13 Hearst Corp., 281 NLRB 764 (1986), enfd. 837 F.2d 1088 (4th Cir. 1988). RTP CO. 469 Utica-Observer Dispatch v. NLRB, 229 F.2d 575, 577 (2d Cir. 1956). The Respondent’s unfair labor practices “convey[ed] to employees the notion that they would receive more . . . without union representation. Such conduct improperly affects [the] bargaining relation- ship.” Detroit Edison, supra, 310 NLRB at 566. We now turn to the final two Master Slack factors, which focus on the effect of the conduct on protected employee activities. As the judge stated, the Respon- dent’s accusation that the Union prevented a wage in- crease would tend to alienate employees from the Union. Further, direct dealing, by its very nature, would tend to undermine employee confidence in the effectiveness of their collective-bargaining representative by suggesting that the Respondent alone was the source of wage and benefit improvements. Taken together, the Respondent’s conduct in accusing the Union of preventing a wage in- crease, followed immediately by the Respondent’s direct dealing regarding wages and other benefits “regardless of the Union,” is of a character that reasonably tends to have a negative effect on union membership. For all these reasons, we find a causal relationship be- tween the alleged unfair labor practices and the antiunion petition underlying the Respondent’s withdrawal of rec- ognition. Thus, the unfair labor practices tainted the em- ployee petition and the Respondent was not entitled to rely on the petition as a valid expression of employee sentiment. In its exceptions, the Respondent asserts that it did not rely solely on the employee petition when it withdrew recognition from the Union, and it cites to a number of other factors of which it “was already aware” on Febru- ary 25. These additional factors are listed as items “a” through “k” in the section of the judge’s decision enti- tled, “Respondent not entitled to withdraw recognition from the Union on February 26, 1998.” According to the Respondent, many of these factors “predated any alleged unfair labor practices” and constituted valid grounds for withdrawing recognition from the Union. For the rea- sons set forth below, we find no merit in the Respon- dent’s argument. In analyzing the adequacy of an employer’s defense to a withdrawal of recognition allegation, the Board will only examine factors actually “relied on” by the em- ployer. Holiday Inn of Dayton, 212 NLRB 553 fn. 1, 556 (1974), enfd. 525 F.2d 476 (6th Cir. 1975). Conduct of which the employer may have been aware, but on which the employer “did not base” its decision to with- draw recognition from the Union, is of “no legal signifi- cance.” Id. See also Orion Corp., 210 NLRB 633, 634 (1974) (Board will only examine those factors on which the withdrawal decision was based), enfd. 515 F.2d 81 (7th Cir. 1975). Here, we find, contrary to the Respondent’s conten- tion, that the February 25 employee petition was the true cause of the Respondent’s decision to withdraw recogni- tion from the Union. The record shows that, on February 25, an attorney representing some of the Respondent’s employees wrote a letter to the Respondent stating that “a clear majority of the [Respondent’s] employees . . . has signed a petition” declaring that they no longer wished the Union to represent them. At the February 26 negotiating session, the Respondent’s counsel, Ed Bohrer, showed the letter and blank copy of the petition to the Union and stated that “based upon this document [the petition], we [the Respondent] were no longer in any position to bargain with the union.” Bohrer advised the Union that the Respondent was withdrawing from bar- gaining “on the basis of this letter and petition.” It is clear that the employee petition prompted the Re- spondent’s withdrawal of recognition from the Union. The Respondent did not withdraw recognition because of “other factors” of which it was aware. Instead, as the judge stated, “the Respondent did not feel confident withdrawing recognition from the Union until it had con- firmation regarding the withdrawal petition.” The Respondent’s “other factors” are irrelevant be- cause the Respondent did not rely on them in withdraw- ing recognition.14 Inasmuch as the record shows that none of the “other factors” played any part whatsoever in the Respondent’s decision, we find that they have no “legal significance.” Holiday Inn of Dayton, supra. We find that the Respondent relied solely on the Feb- ruary 25 employee petition as the basis for its decision to withdraw recognition from the Union. We also find that this petition was tainted by the Respondent’s unfair labor practices. Therefore, we conclude that by withdrawing recognition from the Union on February 26, and by re- fusing to bargain with it, the Respondent violated Section 8(a)(5) and (1) of the Act.15 3. The Respondent excepts to the judge’s finding that it violated Section 8(a)(2) of the Act by paying Attorney Michael Bernantz for legal services he provided to em- ployees who opposed the affiliation of the Winona Free 14 Moreover, even if the Respondent had relied on the “other factors” in withdrawing recognition, we would find that they are insufficient to establish a good-faith reasonable uncertainty of the Union’s majority status within the meaning of Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). 15 We have not analyzed the Respondent’s withdrawal of recognition under our recent decision in Lee Lumber & Building Material Corp., 334 NLRB 396 (2001), because the instant case was not litigated on the theory that the Respondent had not bargained for a reasonable period of time after the issuance of the bargaining order in RTP Co., supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470 Union (WFU) with the Union. We find merit in the Re- spondent’s exceptions and reverse the judge on this is- sue. On February 11, 1996, the Respondent’s employees, who were then represented by the WFU, voted to affiliate with the Union. The Board found that the affiliation vote was valid. RTP Co., supra, 323 NLRB 15. Bernantz pro- vided legal services to a group of WFU members op- posed to the affiliation. The Respondent paid Bernantz’ legal fees. By its terms, Section 8(a)(2) provides that it is an un- fair labor practice for an employer to contribute financial support to “any labor organization.” Consequently, be- fore a violation of Section 8(a)(2) can be found, the en- tity involved must be a statutory “labor organization.” Here, the record shows that virtually all of the legal ser- vices were rendered after WFU’s affiliation with the Un- ion was complete and, accordingly, the alleged “labor organization,” i.e., WFU, no longer existed.16 Id. at 22. Substantial evidence is therefore lacking that the Re- spondent contributed financial support to a “labor or- ganization” in violation of Section 8(a)(2), and we shall dismiss this allegation.17 4. We agree with the judge, for the reasons fully set forth in Caterair International, 322 NLRB 64 (1996), that an affirmative bargaining order is warranted in this case as a remedy for the Respondent’s unlawful with- drawal of recognition from the Union. We adhere to the view, reaffirmed by the Board in that case, that an af- firmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Id. at 68. In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In the Vincent case, the court summa- 16 An itemized statement from Bernantz is in the record. The state- ment shows that legal services totaling 1600 billable minutes were rendered between February 1, 1996, and April 3, 1997. Of that total, only a de minimis amount (45 minutes or less than 3 percent) repre- sented services rendered before the affiliation vote on February 11, 1996. 17 Although the Respondent’s payments may have constituted an in- dependent violation of Sec. 8(a)(1), no such unfair labor practice was alleged in the complaint. While certain payments by an employer to his employees or to a representative of his employees are also unlawful under Sec. 302 of the Taft-Hartley Act, 29 U.S.C. §186, the Board does not have jurisdiction to enforce this provision. rized the court’s law as requiring that an affirmative bar- gaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considera- tions: (1) the employees’ §7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the viola- tions of the Act.” Id. at 738. Although we respectfully disagree with the court’s re- quirement for the reasons set forth in Caterair, we have examined the particular facts of this case as the court requires and find that a balancing of the three factors warrants an affirmative bargaining order. (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the em- ployer’s withdrawal of recognition. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the dura- tion of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. Moreover, employees have not yet had an opportunity to assess for themselves, without any undue influence from the Respondent, the Union’s effectiveness as col- lective-bargaining representative. The Respondent began protesting the Union’s representative status immediately after the February 11, 1996 affiliation election. On Feb- ruary 20, 1997, the Board ordered the Respondent to recognize and bargain with the Union. Bargaining com- menced in late August 1997. After only seven sessions of Board-ordered bargaining for an initial contract, the Respondent, starting on January 2, 1998, acted to influ- ence its employees away from union representation by blaming the Union for preventing an employee wage increase and by dealing directly with employees regard- ing significant terms and conditions of employment. The Respondent’s efforts resulted in an employee petition seeking the end of union representation, which the Re- spondent honored by withdrawing recognition from the Union on February 26, 1998, and dealing directly with employees for another 3 months. In light of these events, it is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reason- able period of time that employees will be able to fairly decide for themselves whether they wish to continue to be represented by the Union or adopt some other ar- rangement. (2) The affirmative bargaining order also serves the policies of the Act by fostering meaningful collective RTP CO. 471 bargaining and industrial peace. That is, it removes the Respondent’s incentive to delay bargaining in the hope of further discouraging support for the Union. It also ensures that the Union will not be pressured, by the pos- sibility of a decertification petition, to achieve immediate results at the bargaining table following the Board’s reso- lution of its unfair labor practice charges and issuance of a cease-and-desist order. (3) A cease-and-desist order, without a temporary de- certification bar, would be inadequate to remedy the Re- spondent’s violations because it would permit a decerti- fication petition to be filed before the Respondent had afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a collective-bargaining agreement. Such a result would be particularly unfair in circumstances such as those here, where litigation of the Union’s charges took several years and the Respondent’s unfair labor practice was of a continuing nature and was likely to have a continuing effect, thereby tainting any employee disaffection from the Union arising during that period or immediately thereafter. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose contin- ued union representation. For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case. ORDER The National Labor Relations Board orders that the Respondent, Miller Waste Mills, Inc., d/b/a RTP Com- pany, Winona, Minnesota, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Misrepresenting to employees positions taken by the Union and blaming the Union for the Respondent’s failure to improve benefits or give a wage increase. (b) When preparing for an unfair labor practice pro- ceeding, interrogating employees in the presence of su- pervisors, and inquiring into union activities and discus- sions that occurred outside of the presence of manage- ment personnel. (c) Bypassing the Union and dealing directly with unit employees by its letters granting a wage increase and reducing insurance premium costs. (d) Refusing to provide information relevant and nec- essary to the Union as the collective-bargaining represen- tative of unit employees. (e) Withdrawing recognition from, and refusing to bargain with, the Union as the exclusive bargaining rep- resentative of the employees in the appropriate bargain- ing unit described below. (f) Informing employees that it would no longer au- thorize them to take time off for union business. (g) Bypassing the Union and dealing directly with unit employees by informing that that it was reviewing its medical, 401(k), vacation, and other benefits; implement- ing a superior attendance incentive program; and inform- ing them of the availability of health insurance coverage through a different insurance carrier. (h) Refusing to allow the Union to participate in the grievance process. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit concerning terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees employed at the Respondent’s plant in Winona, Minnesota; ex- cluding office and clerical employees, engineering de- partment employees, draftsperson, plant clerical em- ployees, and all guards and supervisors as defined by the National Labor Relations Act. (b) Provide the Union with the necessary and relevant bargaining information it requested on February 16, 1998, and thereafter. (c) Return to the status quo ante and allow union offi- cials to conduct union business during scheduled work- times, and to participate in the grievance process. (d) On request of the Union, rescind the attendance program implemented on April 15, 1998. (e) Within 14 days after service by the Region, post at its Winona, Minnesota facility copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472 defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 2, 1998. (f) Within 14 days after service by the Region, the at- tached noticed marked “Appendix” shall be read to as- semblies of all unit members by either the Respondent’s president or senior vice president/chief executive officer. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT misrepresent to employees positions taken by the Union and blame the Union for our failure to improve benefits or give a wage increase. WE WILL NOT, if preparing for hearings in unfair la- bor practice proceedings, interrogate employees in front of supervisors, or inquire into union activities and dis- cussions that took place out of the presence of company management officials. WE WILL NOT bypass the Union and deal directly with employees regarding pay, benefits, and other work- ing conditions. WE WILL NOT refuse to provide information relevant and necessary to the Union as the collective-bargaining representative of unit employees. WE WILL NOT withdraw recognition from or fail and refuse to bargain in good faith with Local 2340, Interna- tional Union, United Automobile, Aerospace & Agricul- tural Implement Workers of America, UAW, as the ex- clusive bargaining representative of our employees in the following appropriate unit: All production and maintenance employees employed at our plant in Winona, Minnesota; excluding office and clerical employees, engineering department em- ployees, draftsperson, plant clerical employees, and all guards and supervisors as defined by the National La- bor Relations Act. WE WILL NOT tell employees that they may no longer take time off for union business. WE WILL NOT refuse to allow the Union to partici- pate in the grievance process. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with the Union as the exclusive bargaining representative of our employees in the above-described appropriate unit with respect to wages, hours, and other terms and conditions of employment and, WE WILL, if an understanding is reached, embody the understanding in a signed agree- ment. WE WILL in a timely fashion furnish the Union with the information requested on February 16, 1998, and thereafter. WE WILL allow union officials to conduct union busi- ness during scheduled worktime. WE WILL allow the Union to participate in the griev- ance process. WE WILL, on request of the Union, rescind the atten- dance program we implemented on April 15, 1998. MILLER WASTE MILLS, INC., D/B/A RTP COMPANY A. Marie Simpson, Esq., for the General Counsel. Paul J. Zech and Lee A. Lastovich, Esqs. (Felhaber, Larson, Fenlon & Vogt, P.A.), of Minneapolis, Minnesota, for the Respondent. Robert D. Metcalf, Esq. (Metcalf, Kaspari, Howard, Engdahl & Lazarus, P.A.), of Minneapolis, Minnesota, for the Charg- ing Party. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Minneapolis, Minnesota, on June 16–19 and July 7 and 8, 1998. The charge was filed March 12, 1998,1 and the complaint was issued May 21, 1998. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following 1 All dates are in 1997 unless otherwise indicated. RTP CO. 473 FINDINGS OF FACT I. JURISDICTION The Respondent (Miller Waste or RTP), a corporation, manufactures thermoplastic molding compound at its facility in Winona, Minnesota, where it annually sells and ships goods valued in excess of $50,000 to points outside of Minnesota. It also purchases and receives goods valued in excess of $50,000 from points outside of Minnesota at its Winona facility. Re- spondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Local 2340 of the UAW, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES On February 20, 1997, the Board found that Respondent had violated Section 8(a)(1) and (5) by refusing to recognize and bargain with the Union, RTP Co., 323 NLRB 15. Following that decision Respondent bargained with UAW Local 2340 from April 1997 until February 26, 1998, when it withdrew recognition of the Union as the exclusive bargaining represen- tative of its employees. The General Counsel alleges that Re- spondent has violated Section 8(a)(1), (2), and (5) in a number of respects since the Board’s decision. These allegations in- clude bad-faith or “surface” bargaining, bypassing the Union and dealing directly with bargaining unit employees and ren- dering financial assistance to employees opposed to the Union. Events Leading up to the 1997 NLRB Decision To put the instant case in context, it is helpful to restate some of Judge William L. Schmidt’s factual findings, which were affirmed by the Board. For some period prior to 1984, RTP production and maintenance employees were represented by the International Chemical Workers Union (ICWU). In 1984, a group of employees successfully moved to decertify the ICWU. Afterwards the Board conducted a representation election and certified the Winona Free Union (WFU) formed by these em- ployees as the bargaining representative. The WFU entered into several collective-bargaining agreements with Respondent, the last of which was concluded in February 1994. Judge Schmidt noted that, “the WFU has had an amicable and nonconfronta- tional relationship with Respondent, never processing a griev- ance to arbitration.” In mid-1995, the executive board of the WFU contacted and met with George Klingfus, an international representative of the UAW. At a meeting in December 1995, attended by the six members of the executive board and five or six other bargain- ing unit members, it was agreed that a vote should be taken at the January 1996 meeting on whether to affiliate with the UAW. On January 22, 1996, the executive board sent a letter to all bargaining unit employees. This letter announced that a special meeting of the Union would be held on Sunday, Febru- ary 11, 1996, at which a secret ballot election would be taken to determine whether to affiliate with the UAW or remain inde- pendent. A copy of the letter was also posted in the workplace. On February 7, the Company sent a letter to all bargaining unit employees. In the letter Miller Waste opposed affiliation and warned that it would challenge the legitimacy of the UAW as a properly certified bargaining agent should affiliation be ap- proved. Approximately 130 employees attended the February 11 meeting. At the beginning two anti-UAW employees, Robert Kashuba and Ron Swartling, confronted Klingfus and vocifer- ously challenged the legality of the meeting. At the end of the meeting a secret ballot election was conducted and supervised by Reverend John Carrier. Seventy nine employees voted for affiliation and 51 voted against affiliation. Following the elec- tion three members of the WFU executive board and Klingfus signed an affiliation agreement. On March 22, 1996, the UAW issued a charter designating the WFU as UAW Local 2340. Five of the six WFU officers and executive board members assumed the same positions with UAW Local 2340. Respondent refused to recognize the UAW as the bargaining agent of its employees. Anti-UAW employ- ees, including Robert Kashuba, Scott Holubar, and Jeff Serwa,2 immediately commenced a campaign to reverse the affiliation of the WFU with the UAW. During this campaign they regu- larly shared information and, on occasion, sought advice from Charles Wunderlich, a vice president of Respondent, who is principally responsible for its labor relations. The Board concluded that the UAW has been the bargaining representative of Respondent’s employees since February 11, 1996. It noted that a successful affiliation vote does not require a majority vote of the entire bargaining unit membership. The Board found that employees received adequate notice of the vote on affiliation and had an adequate opportunity to discuss and consider the affiliation matter before casting their ballots. It also concluded that Respondent had failed to meet its burden of showing that the affiliation did not preserve continuity between the WFU and Local 2340. Respondent was ordered to recog- nize and bargain with Local 2340. The remedy portion of the decision concluded that “Local 2340 is entitled to a reasonable period in which to bargain with Respondent free from further interference.” The Commencement of Negotiations Between Respondent and the UAW on April 30, 1997 Respondent decided not to appeal the February 1997 Board decision. On April 3, Chuck Wunderlich and Michael Bernatz, attorney for at least several members of the anti-UAW faction within the WFU, discussed the strategy to be followed by the Company and Bernatz’ clients with respect to the UAW.3 Ber- natz’ notes of that conversation (GC Exh. 41) read in pertinent part:4 Option #2 Recognize UAW Start negotiating in good faith 2 Serwa resigned as secretary treasurer of the WFU after its affilia- tion with the UAW. He is currently a supervisory/management em- ployee at Respondent’s Winona plant. 3 Bernatz represented the WFU in contract negotiations with Re- spondent in 1987, 1990, and 1993. 4 Bernatz testified that these notes may have been written while he was talking to Wunderlich. I infer that they were transcribed during the conversation. The last line, for example, appears to be a quotation of what Wunderlich said to Bernatz. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474 3-6-10 months- No solution NLRB will, if new petition NLRB almost obligated to give petition There will be a time to get signatures And demanding election-but not now “Talking to them in good faith” Sometime in the early spring of 1997, Respondent’s counsel, Edward Bohrer, met with UAW International Representative Thomas Schneider, who was assigned by the Union to conduct contract negotiations. The Union agreed to withdraw two pending unfair labor practice charges and the parties agreed to hold their first meeting on April 30, 1997, in Red Wing, Min- nesota. This meeting was a cordial “get acquainted” meeting. The Union presented Respondent with an agenda, which in- cluded a list of the information it wanted from Miller Waste. The Union informed Respondent that it wanted to survey its membership before starting substantive negotiations and the parties agreed that they would not conduct a letter writing cam- paign during negotiations without the others’ consent. By May 8, Miller Waste had provided the Union with all the information it requested, including a list of employees’ salaries by name, which the Company had been hesitant to divulge. Schneider went on a plant tour of the Winona facility during the same month. In July the parties agreed to hold their first sub- stantive meeting on August 26. They agreed that the Union would present its initial proposal at that meeting and that Re- spondent would present its response on August 29. The General Counsel does not contend that the 4-month hiatus between the first and second meetings was the fault of Respondent. August 26, 1997 Meeting During this period the Union conducted its survey, tallied the results, and reviewed the collective-bargaining agreement signed by the WFU and Miller Waste in February 1994. Re- spondent authorized Brian Stremcha and Steve Blank to attend a week-long union conference in early August.5 Just prior to the August 26 meeting, George Klingfus replaced Thomas Schneider, who underwent knee surgery, as the UAW’s chief negotiator. When he attended his first meeting, Klingfus had not met with bargaining unit employees beforehand. He was only vaguely familiar with the Union’s proposals and did not have an understanding of the negotiating team’s priorities.6 He had reviewed the 1994 WFU contract briefly. On August 26, Klingfus read the union proposals to the company negotiators. Specific contract language was not pre- sented to the company. The Union merely stated, for example, 5 The Union has no complaints about Respondent’s dealings with it in the grievance process between April 1997 and February 26, 1998. In one instance the Union praised the conduct of RTP’s representatives. 6 The bargaining unit members of the negotiating team were Brian Stremcha, president of the Local, Ken Erickson, vice president, and Pat Berg, secretary-treasurer. Jerry Severson, union recording secretary and a member of the negotiating team in April, left Respondent voluntarily sometime in mid-1997. Mark Steuemagel, president of the Union at the time of the affiliation vote, may also have been a member of the negoti- ating team at one time. He also voluntarily ceased working for Re- spondent in 1997. Erickson resigned his positions with the Union in January or February 1998. that it wanted a union-security agreement added to the WFU contract, that it wanted additional floating holidays, that it wanted wages improved each year of the agreement, that it wanted improved insurance benefits and reduced employee health insurance contributions. The Union also proposed a “five-year step plan to get [wage] rates to pre-January, 1985 date.” The Union’s objective was to eliminate the distinction between employees hired by Respondent before 1985 (tier I employees) and those hired after that date (tier II employees). Tier I employees were paid at a significantly higher base wage rate. August 29, 1997 Meeting Miller Waste presented its response to the union proposal on August 29. The proposal was read by Edward Bohrer, its chief negotiator. There was little discussion of the proposals since the meeting lasted only 30 minutes to an hour. The Company’s initial proposal deleted union dues deduction, a task it had per- formed for the WFU. Miller Waste’s rationale for this proposal was that the UAW “is in a position to handle its own financial affairs.” The Company also opposed any union-security clause. The Company asked for the right to establish “non-tradi- tional” workdays, such as four 10-hour days. It proposed that employees be required to sign up for overtime in advance, which was another change from the WFU contract. Miller Waste asked for the right to cancel the New Year’s Eve, Christmas Eve, and Good Friday holidays with 30 days’ notice and with the provision of a substitute day off with pay, or an extra day’s pay. Miller Waste’s response to the Union’s request for a reduc- tion in the probationary period for new hires was an increase in the period. The parties eventually agreed to maintain the status quo regarding the probationary period, while giving Respon- dent a right to extend the period in particular cases after the Union’s review. Respondent rejected the Union’s request for a change in company procedures for overtime and transfer. The Union proposed a job bidding process with more weight given to seniority than was the case under the WFU contract. With respect to wages, the Company proposed a wage freeze in 1997 and 1998, citing its December 1996 4-1/2-percent wage increase, as justification for the freeze. As to the two-tiered wage system, the company proposal stated that “it was open to negotiation of a method to reduce the difference” between the tiers, but that “it will take much longer than 5 years.” The com- pany proposal provided that any increase in health insurance benefits would be paid for by its employees. The Company agreed to a union request to modify the lan- guage concerning work breaks to clearly indicate that employ- ees on each shift were entitled to three 10-minute breaks.7 It also agreed to update its seniority list regularly and provide it to the Union. The September 16 Meeting Prior to the next scheduled negotiation session on September 16, a union negotiating team member (or members) apparently told George Klingfus that the company was discriminating 7 Respondent also proposed a provision giving it discretion to re- quire some or all employees to punch in and out at breaktimes. RTP CO. 475 against UAW supporters with respect to wages. Respondent paid a number of employees a wage rate that exceeded the base wage set forth in its collective-bargaining agreement with the WFU. Klingfus was also told that there were individuals who were company supervisors who were in the bargaining unit and were doing work that should be done by other bargaining unit members. Klingfus raised these issues with Respondent’s chief negotia- tor, Ed Bohrer, in the hallway just prior to the September 16 session. Then when the meeting began, he threatened in an animated manner, to file unfair labor practice charges regarding discrimination in merit pay and an incident in which the local secretary/treasurer, Pat Berg, was pushed down the stairs of a blender. No such charges were ever filed and the Union has never established that Respondent discriminated against union members with regard to merit pay. Klingfus also demanded that the “supervisors” be removed from the bargaining unit. Bohrer responded to Klingfus by asking him to provide a list of the individuals to whom he was referring.8 This issue consumed a considerable amount of time at the September 16 meeting and at some later meetings. On September 16, the Union’s secretary/treasurer, Pat Berg, began rewriting the WFU collective-bargaining agreement by hand as a means of presenting desired language changes to Respondent. After some period of time, Respondent objected to this proce- dure and the parties agreed that Bohrer’s secretary would type up tentative agreements after each meeting. The Union asked for changes to article I of the WFU contract which excluded laboratory employees from the bargaining unit. These employees had always been treated as unit members and indeed, Union President Brian Stremcha and other union mem- bers worked in these laboratories. Respondent promised that it would continue to treat laboratory employees as bargaining unit members, but refused to change the contract language. The Union accepted the Company’s representations. The September 19, 1997 Meeting Some minor agreements were reached at the September 19 bargaining session. Respondent agreed to grant employees bereavement leave in the event the death of their stepchildren or stepparents and to count such leave in computing eligibility for overtime pay. The agreement to include steprelatives, how- ever, merely conformed to the Respondent’s existing practice. The Union agreed to the nontraditional workday and the elimi- nation of the employer-employee task force provided for in the WFU contract. Respondent refused to budge on its insis- tence that it would not collect dues for the UAW or allow em- ployees to bid on promotions and transfers. At the end of the meeting, Klingfus informed the Company that he would ask Federal mediator Bruce Danielson to attend the next meeting. A meeting scheduled for October 14 was cancelled by Klingfus. 8 This dispute concerned some or all of 26 section leaders/managers or assistant section leaders/managers listed on GC Exh. 47. Five of these employees were having union dues withheld from their paychecks in April 1997. These individuals report to one of three production man- agers or to the second- or third-shift supervisors. The production man- agers and shift supervisors, who are supervisory/management, report to Manufacturing Manager Larry Stoltman. The November 6 and 26, 1997 Meetings UAW International Representative Thomas Schneider at- tended the first hour of the November 6 meeting, which was also attended by Federal mediator Bruce Danielson. Schneider alleged that the Company was not serious about reaching agreement and was bargaining in bad faith. Bohrer responded by accusing the Union for the slow pace and lack of progress in negotiations. Some minor agreements were reached such as one regarding the consistency of language in computing time periods for the grievance procedure. On November 6, and 26, discussion cen- tered on three issues: the Company’s proposed right to move the New Year’s Eve, Christmas Eve, and Good Friday holidays; the issue of whether certain employees were supervisors and eligible for bargaining unit overtime work and the Company’s insistence that an employee have the right to pursue a grievance without the Union’s blessing. There was no resolution with regard to any of these matters.9 On the morning of November 26, Respondent presented the Union with a document entitled “List of supervisors currently in the bargaining unit [G.C. Exh. 47].” In the meeting the Un- ion took the position that only 2 of the 26 individuals on the list were supervisors within the meaning of the NLRA. The Com- pany argued that these individuals were indistinguishable with regard to their supervisory status under the Act in that they all had some degree of authority to discipline employees and make work assignments. Respondent also argued that it had the right to have them perform overtime work regardless of whether or not they were in the bargaining unit. December 11, 1997 Meeting On the morning of December 11, 1997, both negotiating teams caucused separately at the Riverport Inn in Winona. At one point federal mediator Bruce Danielson entered the room of the union negotiators and told them that he didn’t think they would get a collective-bargaining agreement unless they could show the Company that the Union had the support of the major- ity of the bargaining unit employees.10 The three union negoti- 9 Curiously, union negotiator Klingfus testified on two occasions (Tr. 642 and 726) that Respondent dropped its insistence that an indi- vidual employee be able to pursue a grievance. If this were so, it would indicate a major concession by Miller Waste. However, the notes of the company negotiators, Charles, Wunderlich, Ed Bohrer, and Frank Woh- letz, as well as the testimony of Union President Brian Stremcha, estab- lish that the Company never compromised on this issue (see, e.g., Exhs. R-8, R-28, and R-21, pp. 14–15). 10 No factual issue in this case is so hotly contested as the origins of the suggestion for an election. The company witnesses unanimously assert that, other than telling them to go to lunch, they didn’t see media- tor Danielson until the afternoon, when he informed them that the Un- ion had decided that it wanted to have a representation election. Never- theless, I find that the election idea was a result of the Union’s discus- sions with Danielson, who was accurately conveying sentiments ex- pressed to him by Respondent. I base this finding on the testimony of Ken Erickson, union vice president until January or February 1998, who was a member of the union negotiation team. Erickson, who no longer supports the Union, testified for Respondent. On direct exami- nation, he supported Respondent’s account. However, on cross- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476 ating committee members, President Brian Stremcha, Vice President Kenneth Erickson, and UAW International Represen- tative George Klingfus, then engaged in a prolonged discussion of whether they should consent to an NLRB representation election. In the afternoon the parties got together and agreed to such an election, pending approval from Klingfus’ supervisor at the UAW. The also discussed wages and changes in employee health insurance benefits. In March 1997, the Union had filed an unfair labor practice charge because Respondent granted employees a very large wage increase without giving notice to the Union, or providing it with an opportunity to bargain. The Union promised not to file a charge if an increase was granted for 1998. Klingfus also promised not to use the raise as a means of getting an even greater wage increase in future negotiations. Finally, the Union agreed that Respondent could change em- ployee health insurance benefits so long as the change did not offset the wage increase to the point of leaving employees with a net loss in compensation. Contract negotiations were sus- pended while the election proposal was broached to Klingfus’ superiors. The UAW Rejects a Representation Election and Files Two Grievances Regarding Overtime Worked by Supervisors On December 12, Local Union President Brian Stremcha filed a grievance with Respondent alleging that on Saturday, December 6, “[f]orepersons were used to do work regularly performed by the bargaining unit employees during their regu- lar work week.” The grievance asked that “the appropriate em- ployees” be paid for these overtime hours. On December 23, Stremcha filed an identical grievance with regard to work per- formed on Sunday, December 21. Both grievances were declined by Respondent. In addition, Corporate Vice President Wunderlich had a meeting with the “bargaining unit supervisors” and told them that the Union wanted them out of the bargaining unit. He suggested that they talk to Stremcha about the grievances. Stremcha met with sev- eral of these individuals at a restaurant and told them that the Union believed that they were leadmen rather than supervisors. Respondent’s January 2, 1998 Letter On December 23, George Klingfus left Ed Bohrer a message stating that the Union could not agree to a representation elec- tion. On January 2, Respondent sent its employees a letter summarizing its negotiations with the UAW (GC Exh. 10).11 The letter reviewed the discussions regarding a representation election and Klingfus’ message of December 23. It continued as follows: Wages and Benefits During that same December 11th meeting, the UAW Union Committee stated they would allow RTP to give examination, he changed his testimony and it is that testimony which I conclude is closest to the truth. 11 At the April 30 negotiation session Tom Schneider agreed with company negotiators that their discussions would remain confidential and that the parties would not engage in letter writing campaigns. George Klingfus repudiated this agreement on September 16, on ac- count of Respondent’s alleged discrimination regarding merit pay. employees an increase in pay and to decrease insurance costs but no specifics were discussed. You will recall when RTP raised wages last year, the UAW filed an unfair labor practice charge against us. Conclusion We appreciate the need for increased wages and de- creased insurance costs, but we cannot handle these things piecemeal. Wages and insurance are only part of the com- plete economic package, which also includes vacations, holidays, overtime and other issues which we've always dealt with at the same time. We also find it difficult to trust the UAW after they pulled the rug out from under us by denying an election. These and other issues must be resolved simultaneously. This is a sad occasion for all of us as this marks the first time in RTP’s long history we won’t be giving you a wage increase at this time. Please understand this is not the way we do business. We are continually exploring ways to ensure that neither our employees nor RTP are damaged any further by this fiasco. Thank you very much for your continued patience and understanding. /s/ Benjamin A. Miller, President /s/ Hugh L. Miller, CEO George Klingfus wrote Respondent’s attorney, Ed Bohrer, on January 12, 1998, complaining about the Company’s January 2 letter. He said his understanding was that a raise would be given if no unfair labor practice charges were filed. Klingfus closed his letter by threatening to file an unfair labor practice charge unless Respondent retracted the January 2 letter and gave employees a wage increase. On January 15, 1998, the Millers were presented with a peti- tion signed by approximately half the bargaining unit. It asked that the Millers grant employees a fair and decent wage in- crease and better insurance benefits for 1998. A cover sheet given to the Millers states that the petition was “in no way, shape or form, connected with any organization or business. It is simply a request from your loyal employees.” One of the employees who circulated this petition was Scott Holubar, who had been a leader of the anti-UAW faction in the WFU. The Millers responded to this letter the next day with a letter to employees granting them a 51-cent-per-hour wage increase “regardless of the UAW and the NLRB and all those prob- lems.” This constitutes the largest across-the-board wage in- creased given to RTP employees in at least 38 years. The Janu- ary 16 letter also indicated that Respondent was working on a reduction in employee health insurance costs. On February 13, 1998, Respondent notified employees of a reduction in their contribution for health insurance premiums. On February 13, 1998, Respondent informed the Union that it would no longer deduct dues or other union fees from em- ployee paychecks. At some point a meeting was scheduled for February 26, 1998, to resume collective-bargaining negotia- tions. About 2 days prior to this meeting, Scott Holubar went to see Respondent’s vice president, Chuck Wunderlich. Holubar told Wunderlich that he had a petition, with the signatures of RTP CO. 477 125 bargaining unit employees, stating that the employees did not want the UAW representing them. Wunderlich referred Holubar to Michael Bernatz, formerly the WFU’s attorney.12 Holubar arrived at Bernatz’ office on February 25, with a peti- tion signed by 129 of the 168 bargaining unit employees and left it with a secretary.13 Bernatz, who continued to represent Holubar, Robert Ka- shuba, and other anti-UAW employees14 with regard to their employment, called Chuck Wunderlich. At some time during that afternoon, Bernatz also talked with Frank Wohletz, Re- spondent’s Winona counsel and Paul Zech, a partner of Ed Bohrer in the Felhaber law firm. He asked their advice in word- ing a cover letter for the withdrawal petition to assure that it would be recognized by Respondent and, I assume, the NLRB. Afterwards, Thomas Gort, an associate in Bematz’ office, drafted a letter to the Millers stating: Our office has represented a number of employees of Miller Waste Mills, Inc. I am writing you to put you on notice of the following. Our clients have advised us that a clear majority of the employees of Miller Waste Mills has signed a petition relating to the employees’ union affilia- tion. A blank sample of the petition is attached to this letter as Exhibit A. Based on information that we have received, we believe that this letter accurately reflects the nature and status of that petition, and that we will presently be in pos- session of the signed original of the petition. The blank sample declared that the signatories no longer wanted to be affiliated with the UAW and did not want the UAW to represent them. Bernatz rushed to deliver the letter to Respondent prior to the start of the next day’s negotiating ses- sion, of which he was aware. Gort hand carried the letter to Chuck Wunderlich in the late afternoon of February 25, 1998. The Company did not received a copy of the signed petition until June 1998. The Events of February 26, 1998 Thomas Schneider was reassigned to the Miller Waste nego- tiations, replacing Klingfus, prior to February 26. Shortly after the outset of the negotiating session, Ed Bohrer presented Schneider, Brian Stremcha, and Pat Berg a copy of the letter from Gort, with the blank petition. Bohrer informed the Union that in light of this letter the Company was no longer bargain- ing with it. Schneider became very angry and made some thinly veiled threats of violence, apparently directed at Wunderlich. During or immediately after the meeting, Respondent’s at- torney, Frank Wohletz, called Mike Bematz. Wohletz asked 12 There is no evidence of Respondent’s involvement with the circu- lation of the withdrawal petition, or the January petition requesting a wage increase. 13 The bargaining unit had about 200 employees. Approximately 55 were members of the Union in February 1998. There were about 70 members in April 1997. 14 From Bernatz’ notes I infer that Ernie Fratzke, who was involved with Holubar in the circulation of the withdrawal petition, was also a client of Bernatz. Respondent’s attorney, Ed Bohrer, described Bernatz as “an attorney representing the majority of the employees.” (Tr. 1032.) Bernatz to retain custody of the signed withdrawal petition. He also directed Bernatz to send him a statement of the services Bernatz had rendered to Winona Free Union for which he had not been paid. Bernatz sent a bill covering his services to the WFU from February 1, 1996, through his conversation with Wunderlich on April 3, 1997. The statement covered time spent talking to employees Scott Holubar, Jeff Serwa, and Bob Ka- shuba, as well as numerous conversations with Respondent and its attorneys (GC Exh. 56, attached to the General Counsel’s brief). Wohletz paid Bernatz the $2,317.55 claimed in the statement and was reimbursed by Respondent.15 Unilateral Actions after February 26, 1998, Which are Alleged to be 8(a)(5) Violations Pursuant to its position that it was not obligated to recognize and bargain with the Union after February 25, 1998, Respon- dent failed to comply with a request for information submitted by Local 2340 President Brian Stremcha on February 16, and any subsequent UAW information requests. It has also refused to allow the Union to participate in the grievance process. On March 23, 1998, it informed Pat Berg that it would no longer authorize him to take time off for Local 2340 business. Respondent has also dealt unilaterally with employees in a number of respects that are alleged as violations by the General Counsel. On March 19, 1998, Respondent sent its employees a letter informing them that it no longer recognized the UAW. It also informed them that the Company was reviewing its medi- cal, 401(k), vacation, and other benefits. On April 15, 1998, it unilaterally implemented a superior attendance incentive pro- gram. RTP also informed its employees of the availability of health insurance coverage through Blue Cross and Blue Shield of Minnesota. Analysis The General Counsel has not Established that Respondent En- gaged in Surface Bargaining In Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984), the Board summarized the obligations of employers and unions under Section 8(a)(5): Under Section 8(d) of the Act, an employer and its employees’ representative are mutually required to “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of em- ployment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession.” Both the employer and the union have a duty to negotiate with a “sincere purpose to find a basis of agreement,” but “the Board cannot force an employer to make a ‘concession’ on any specific issue or to adopt any particular position.” The employer is, nonetheless, “obli- gated to make some reasonable effort in some direction to compose his differences with the union, if Section 8(a)(5) is to be read as imposing any substantial obligation at all.” It is necessary to scrutinize an employer’s overall con- duct to determine whether it has bargained in good faith. 15 Bernatz testified that he intends to bill for services rendered in February 1998. He did not indicate who he intends to bill. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478 “From the context of an employer’s total conduct, it must be decided whether the employer is lawfully engaging in hard bargaining to achieve a contract that it considers de- sirable or is unlawfully endeavoring to frustrate the possi- bility of arriving at any agreement. A party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree. . . . . Although an adamant insistence on a bargaining posi- tion is not of itself a refusal to bargain in good faith . . . other conduct has been held to be indicative of a lack of good faith. Such conduct includes delaying tactics, unrea- sonable bargaining demands, unilateral changes in manda- tory subjects of bargaining, efforts to bypass the union, failure to designate an agent with sufficient bargaining au- thority, withdrawal of already agreed-upon provisions, and arbitrary scheduling of meetings.16 On the one hand there are a number of aspects regarding Re- spondent’s conduct at and away from the bargaining table that points to a determination not to reach agreement with the Un- ion, or “surface bargaining.” These include its “brain-storming” with Bernatz at the outset of the negotiations, its position re- garding dues-checkoff proposals that were somewhat more onerous that those in its contract with the WFU and the lack of any significant concessions to the Union during negotiations. None of these factors, however, necessarily establishes bad- faith bargaining, White Cap, Inc., 325 NLRB 1166 (1998). In NLRB v. J. P. Stevens & Co., 538 F. 2d 1152, 1165 (4th Cir. 1976), the court observed that “[e]very position on issues of mandatory bargaining like dues check off, must reflect a legitimate business purpose, otherwise the company has not bargained in good faith.” In the instant case I cannot see any legitimate business purpose in Respondent’s insistence that the UAW collect its own dues. Similarly, the record belies Respon- dent’s assertions that it made any significant concessions to the Union during the negotiations. It claims that it conceded a lot by agreeing to discuss a graduated elimination of its tiered wage structure. However, I conclude it conceded nothing be- cause it did not make any concrete proposal in response to the Union’s proposed 5-year plan to equalize wages for pre- and post-1985 hires. All this being said, I cannot conclude that Respondent en- gaged in surface bargaining. Had it stuck to all these positions and even if it had struck to some of them to the point of im- passe, I might be inclined to find “surface bargaining.” How- ever, negotiations never progressed far enough to determine whether Respondent’s proposals were designed to thwart any agreement, or were merely tools to gain concessions on other issues. Moreover, the Union was at least as much at fault for the lack of progress as Respondent. It is not alleged that Respondent engaged in many of the tell- a-tale signs of surface bargaining. For instance, the Company did not arbitrarily schedule and cancel bargaining sessions, or decline to make its negotiators reasonably available. Indeed, the 16 Case citations from the Board’s decision have been omitted. lack of haste in starting and conducting substantive negotiations appears to be as much the responsibility of the Union as it is Respondent’s. Furthermore, Miller Waste complied with all information requests submitted by the Union until the February 16, 1998 request by Stremcha.17 Respondent dealt fairly with the Union in the grievance process and provided union officials an opportunity to attend to union business up until February 26, 1998. Respondent can not be saddled with responsibility for the fact that negotiations were not completed by the end of 1997, or the predicament in which the Union found itself as a result. The Union knew that Respondent traditionally raised wages at the beginning of each year. It was thus on notice that if negotia- tions were not concluded that the wage increase would be de- layed unless it waived its right to bargain with respect to the increase. Despite this fact, the Union wasted much of the negotiating sessions on issues that appear to have either had no merit, or were not well thought out. Most notable in this regard is the time spent on the allegation of discrimination against union members with regard to merit pay and the “bargaining unit supervisor” issue. With regard to the former, there appears to be absolutely no basis for the assertions made by the Union at the bargaining sessions. The latter issue seems to be a poorly articulated concern, never adequately explained either in nego- tiations or at this hearing. Union President Stremcha objected to the performance of overtime work by certain employees. He never articulated which employees were barred from such work by the WFU contract until the Company provided a list of 26 section leaders. While the Union ultimately took the position that 2 of the 26 were barred from overtime work, it has not shown how these 2 are distinguishable from the others.18 The question of whether a particular individual is a supervi- sor within the meaning of the Act was described by Judge Goldberg of the 5th Circuit as “persistently vexing,” NLRB v. Security Guard Service, 384 F.2d 143, 1435 (5th Cir. 1967). The resolution of this issue requires a determination of whether the individual exercises authority with regard to certain respon- sibilities enumerated in Section 2(11) of the Act, such as hiring, firing, and directing the work of others, in a manner requiring the use of independent judgment. Moreover, one who exercises at least some of these responsibilities on a sporadic basis and in a manner largely incidental to his or her own work may not necessarily be a statutory supervisor, Southern Bleachery & Print Works, Inc., 115 NLRB 787, 791 (1956), enfd. 257 F.2d. 235, 239 (4th Cir. 1958). The fact that so much of the parties’ time in negotiations case was spent unproductively discussing the supervisor issue appears to be the responsibility of the Union, not the Respon- dent. If the Union had a legitimate concern about the scope of the bargaining unit, it should have been able to identify which 17 Respondent claims it would have complied with Stremcha’s re- quest on February 26, 1998, but for the withdrawal petition. 18 It is not clear that the grievances filed by the Union in December, concerned work performed by these two individuals, other section leaders, or the production managers or shift supervisors. RTP CO. 479 individuals it was concerned with and should have been able to provide a basis for distinguishing these individuals from the “bargaining unit supervisors” it now claims were not statutory supervisors. Respondent’s January 2, 1998 Letter Violated Section 8(a)(1) and is not Protected by Section 8(c) of the Act While Respondent’s January 2, 1998 letter to its employees accurately summarized the events surrounding the tentative agreement by the Union to an representation election, it con- cludes by blaming the UAW for the fact that employees would not be getting their annual wage increase. The Company, how- ever, believed that the Union had given its blessing to a wage increase and had waived its right to bargain over the raise. If the Company had any concerns that the Union had changed its position or had not waived its right to bargain, these were dis- pelled by Klingfus’ letter of January 12. Respondent’s behav- ior in granting the wage increase on January 15, indicates that it understood that the Union had not reneged on its agreement with regard to the wage increase and had waived its right to bargain; otherwise, the increase would have constituted direct dealing, an obvious and blatant 8(a)(5) violation.19 Nevertheless, Respondent made no attempt to correct the impression it gave to employees that the Union had tried to prevent or at least been an impediment to the wage increase. This was not an expression of views, argument, or opinion protected by Section 8(c). It was a misstatement of fact, which would reasonably tend to undermine employees’ confidence and support for the Union. It is not surprising that employees would become alienated from a union which they believed had prevented a wage increase. I therefore conclude that the letter would reasonably tend to restrain employees in the exercise of their rights under Section 7, and thus violated Section 8(a)(1), Hillhaven Rehabilitation Center, 325 NLRB 202 (1997). Respondent did not Violate the Act in Notifying the Union on February 9, 1998, that it Would no Longer Ddeduct Union Dues from Employees’ Paychecks Paragraph 9(i) of the complaint alleges that Respondent vio- lated the Act by ceasing the deduction of union dues from em- ployees’ paychecks. An employer is not required to continue to deduct such dues if its collective-bargaining agreement with the Union has expired, Bethlehem Steel Co., 136 NLRB 1500 (1962), enf. denied on other grounds 320 F.2d 615 (3d Cir. 1963). Respondent’s collective-bargaining agreement with the WFU provided that it would remain in force until December 31, 1996, and from year to year thereafter, unless either party gave notice no earlier than 90 days, and no later than 60 days prior to 19 The General Counsel argues that the Union did not waive its right to bargain over the wage increase and reduction in employee insurance premiums. I conclude that it did so at the December 11, 1997 negotiat- ing session, and reiterated this waiver by virtue of Klingfus’ January 12 letter to Respondent. Statements made by Klingfus at the December 11 negotiating session clearly intended and expressed a conscious relin- quishment of the Union’s right to bargain over changes in insurance premiums, so long as they did not completely offset any wage increase, Intermountain Rural Electric Assn., 305 NLRB 783, 786 (1991), enfd. 984 F.2d 1562 (10th Cir. 1993). the expiration of the contract, that it wished that the contract be terminated or amended. The Union gave notice in 1996 and 1997 that it wished to negotiate amendments to the contract. Respondent contends that, as a result, the contract expired on December 31, 1996, or alternatively, on December 31, 1997. It is evident that both parties regarded the contract to be in force throughout 1997. A literal reading of the WFU contract would indicate that it ex- pired on a request for amendment. Further, it is not clear what the parties understood to be the status of the WFU contract after December 31, 1997. Therefore, I conclude that the General Counsel has not established that it was still in force in February 1998. Respondent was thus entitled to cease deducting dues payments. Respondent was not Entitled to Withdraw Recognition from the Union on February 26, 1998 A union is irrebuttably presumed to continue to enjoy the support of a majority of the unit employees for 1 year after its certification and after the certification year has elapsed, while a collective-bargaining agreement is in effect. After the contract expires, the union is still presumed to enjoy majority status, but the presumption is rebuttable. In the latter situation, the em- ployer may rebut the presumption and withdraw recognition if it can show that the union in fact no longer has the support of a majority of the unit employees, or that the employer has a rea- sonably based doubt, based on objective considerations, as to the union’s continued majority status. Any such doubt, how- ever, must be raised in a context free of unfair labor practices of the sort likely, under all the circumstances, to affect the union’s status, cause employee disaffection, or improperly affect the bargaining relationship, Lee Lumber & Building Material Corp., 322 NLRB 175 (1996), enfd. in relevant part 117 F.3d 1454 (D.C. Cir. 1997). In cases in which it is established that the employer unlaw- fully refused to recognize and bargain with the incumbent un- ion, a relationship between these unlawful acts and the union’s subsequent loss of majority support may be presumed. How- ever, in cases involving unfair labor practices other than a gen- eral refusal to bargain, the Board has identified several factors as relevant to determining whether a causal relationship exists between unremedied unfair labor practices and the subsequent expression of employee disaffection with an incumbent union. These factors include: (1) The length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting ef- fect on employees; (3) any possible tendency to cause em- ployee disaffection from the union; and (4) the effect of the unlawful conduct on employee morale, organizational activi- ties, and membership in the union. Williams Enterprises, 312 NLRB 937 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995). In the instant matter the first three factors set forth above would cut in favor of a finding that Respondent’s withdrawal of recognition on February 26, 1998, was illegal. The January 2 letter was likely to cause disaffection 6weeks later when the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480 withdrawal petition was circulated. The fourth factor, however, is much harder to analyze because there was widespread disaf- fection with the Union before Respondent sent out its letter. This issue is related to Respondent’s assertion that it had rea- sons, apart from the withdrawal petition, to doubt the Union’s majority support. It is apparent that Respondent did not feel confident with- drawing recognition from the Union until it had confirmation regarding the withdrawal petition. However, that petition is substantially tainted by the January 2 letter and does not pro- vide a basis for legally withdrawing recognition. The General Counsel does not challenge Respondent’s contention that the Union did not have majority support on February 26. The issue is whether Respondent had a good-faith doubt as to the Union’s majority status without the petition. At pages 28–29 of its brief, Respondent sets forth the factors on which it relies in contending that it had a good-faith doubt as to the UAW’s majority status. These factors warrant scrutiny individually: a. There had been at least one and maybe two prior attempts by employees to get rid of the UAW, which were rejected by the NLRB: These petitions were circulated in 1996 and were thus tainted by Respondent’s initial unlawful refusal to recog- nize and bargain with the UAW. They provide no basis for a reasonable good-faith doubt as to the Union’s majority status in February 1998. b. There had been constant turmoil amongst employees over the affiliation with the UAW: This was “old news” in February 1998. It is obvious from the prior Board decision and common knowledge to everyone involved in this matter that there was strong opposition to the UAW within the bargaining unit and that at least some of the individuals opposing the UAW had not changed their view since February 1996. This knowledge pro- vides no basis for concluding that Respondent had a reasonable good-faith doubt as to the UAW’s majority support in February 1998. c. The Union never had more than 75 members and, just prior to the petition, had only 55–60 members: This also pro- vides no basis for a reasonable good-faith doubt. In affirming the Board in an analogous case, Judge Winter of the Fourth Circuit Court of Appeals noted: A showing that less than a majority of the employees in the bargaining unit were members of the union or paid union dues was not the equivalent of showing lack of union support. Manifestly, in the absence of a closed shop agreement . . . many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of represen- tation. Nonetheless, the union may enjoy their support, and they may desire continued representation by it. Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir. 1970), enfg. 173 NLRB 1480 (1969). d. As recently as the spring of 1997, when the final resolu- tion of the first case was achieved, a mass resignation from union membership occurred: This mass resignation probably occurred in the spring of 1996 and thus may be tainted by Re- spondent’s initial refusal to recognize and bargain with the Union. e. Union Vice President Ken Erickson told Chuck Wunder- lich in December 1997, that he and Stremcha would ask the NLRB for a representation election even if the UAW region did not agree to such an election: First of all, I decline to credit Wunderlich’s testimony to this effect in part because it was not corroborated by Erickson, a witness now favorably disposed to Respondent. Secondly, a willingness to submit to a representa- tion election does not necessarily indicate a belief that the Un- ion would lose. Indeed, it is difficult to understand why an in- cumbent Union would voluntarily agree to a representation election in such circumstances. Indeed, Erickson testified that while he favored submitting to a representation election, it was not because he had questions about the Union’s majority status (Tr. 592-93). f. The Union spent 4–5 hours deliberating on whether to agree to a representation election: Having concluded that the fact that the Union tentatively agreed to the election does not provide Respondent with a basis for a good-faith doubt as to majority status, the Union’s deliberations cannot do so either. g. The Union only received 30 responses to its survey solicit- ing input from bargaining unit members before the August 26, 1997 bargaining session: Since the number of members is not a valid reason to doubt the Union’s majority status, the fact that members and nonmembers may have eschewed an active part in the Union’s deliberations does not constitute a valid reason for such doubt. h. There was significant union officer turnover, without re- placement: The fact that Brian Stremcha and Pat Berg appear to have been the only union officers in February 1998, does not provide a basis for Respondent to conclude that the Union did not have majority support. First of all, the fact that an employee does not want to become actively involved in union affairs does not mean that he does not want continued union representation. Moreover, the inability of the Union to procure a replacement for Ken Erickson could be due in part to the disaffection cre- ated by the January 2, 1998 letter. i. The “bargaining unit supervisors” expressed dissatisfaction with the Union’s attempt to remove them from the bargaining unit: Respondent had little knowledge regarding how many of these employees ever supported the UAW20 or how many changed their minds as the result of the Union’s negotiation strategy regarding their status. Moreover, Chuck Wunderlich advised these employees to discuss their situation with Brian Stremcha and there is no indication that Respondent knew whether or not some, or all, of these individuals were satisfied with Stremcha’s explanation. j. Employees had withdrawn support from the Chemical Workers Union in 1984: That the Chemical Workers lost the support of a majority of employees in 1984 has no relevance to whether the Union had the support of a majority of employees in 1997 and early 1998. k. Scott Holubar told Respondent that a majority of employ- ees had signed a petition to throw out the UAW: Like the peti- tion itself, this information is tainted the January 2, 1998 letter and cannot be relied upon by Respondent. 20 Other than the fact that several were having union dues deducted from their paychecks. RTP CO. 481 While Respondent had evidence of some disaffection with the Union, I conclude that it did not have any objective basis for a reasonable doubt that the Union lacked majority support that was untainted by its unfair labor practice. The Company’s rush to get evidence of the petition before the February 26 ne- gotiating session virtually proves this. Respondent Violated Section 8(a)(1) and (5) in Bypassing the Union and Dealing Unilaterally with its Unit Employees After February 26, 1998, and in Failing to Provide the Union with Requested Information, and in Refusing to Grant Union Offi- cials Time Off for Union Business Having found that Respondent was not entitled to withdraw recognition and cease its bargaining with the Union on Febru- ary 26, 1998, all the allegations for which Respondent relies on the withdrawal as a defense violated the Act. These include benefits directly granted to employees without consulting the Union, the refusal to comply with the Union’s information requests, refusal to allow the Union to participate in the griev- ance process and denial of the requests of union officials for time off to attend to union business. Respondent Violated Section 8(a)(2) of the Act in Paying Mi- chael Bernatz’ Legal Fees for Services he Rendered to the Winona Free Union Section 8(a)(2) makes it an unfair labor practice for an em- ployer to dominate or interfere with the formation or admini- stration of any labor organization or contribute financial or other support to it. As noted in Hardin, The Developing Labor Law (3d ed. 1992) at page 289, the primary purpose of this Section is to eradicate company unionism, a practice in which employers establish and control inhouse labor organizations in order to prevent organization by autonomous unions. Respondent paid Michael Bernatz through its attorney, Frank Wohletz, for services Bernatz rendered between February 1, 1996, and April 3, 1997. These services were rendered to Robert Kashuba, Scott Holubar, Ernie Fratzke, Jeff Serwa, and other anti-UAW employees with regard to their employment with Respondent. Indeed, these services appear to pertain solely to the issue of whether RTP employees would be repre- sented by the UAW. Respondent’s defense to the allegation that its payments to Bernatz violated Section 8(a)(2) is that Bernatz’ clients were not a labor organization within the mean- ing of Section 2(5) of the Act. Section 2(5) provides as follows: The term “labor organiza- tion” means any organization of any kind, or any agency or employee representation committee or plan, in which employ- ees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work. This is a term that Congress meant to be defined broadly. A group may meet this definition even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, does not require payment of initiation fees or dues, and does not engage in collective bargaining with the employer, Electromation, Inc., 309 NLRB 990 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994). Bernatz’ clients were a labor organization within the mean- ing of this definition. They acted in concert in dealing with Respondent to get rid of the UAW.21 Their status as members of a bargaining unit represented by the UAW constitutes a “condition of work” within the meaning of Section 2(5). There- fore, I conclude that Respondent violated Section 8(a)(2) as alleged. Respondent Violated Section 8(a)(1) in its Pretrial Interview of Employee Ken Erickson In preparation for the hearing in this matter, Respondent’s at- torneys issued a subpoena duces tecum to employee Ken Erick- son, who had been the Union’s vice president until January 1998. Counsel interviewed him in a conference room at Re- spondent’s plant a week prior to the hearing. At the outset of the interview Respondent’s attorney presented Erickson with a written notice explaining that the purpose of the interview was to investigate the Union’s allegations of unfair labor practices. The notice concluded: Your participation in this interview is completely voluntary. No discrimination will result if you choose not to participate and no reward will result if you choose to participate [R. Exh. 17]. When Erickson arrived for the interview, Respondent’s hu- man resources director, Richard Kulas, and manufacturing manager, Larry Stoltman, were in the conference room with their counsel. They asked him if he wanted them to leave. Erickson replied that it did not matter to him, so they stayed. Attorney Zech asked about the dates of Erickson’s tenure as a union officer and whether he attended all the contract negotia- tion sessions. Zech inquired as to whether Erickson signed the withdrawal petition. They discussed Erickson’s understanding of the petition when he signed and his opinion of George Kling- fus. In response to the subpoena Erickson supplied Zech with notes of union meetings, which identified employees who at- tended those meetings, and contained Erickson’s notes as to what transpired during those meetings. The General Counsel, pursuant to an amendment to the com- plaint made during the hearing, alleges that Respondent vio- lated Section 8(a)(1) in conducting the interview in the pres- ence of Kulas and Stoltman, giving inadequate assurances that no reprisals would take place if Erickson did not choose to participate, by inquiring into Erickson’s reasons for signing the decertification petition and inquiring into the identities of em- ployees who attended union meetings and the topics discussed. The Board in Johnnie’s Poultry, 146 NLRB 770 (1964), es- tablished safeguards designed to minimize the coercive impact of an investigatory interview by an employer, while allowing the employer to investigate facts concerning issues raised in the complaint. It stated that the employer: Must communicate to the employee the purpose of the ques- tioning, assure him that no reprisals will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union ercive in nature, and the organization and must not be itself co 21 In March 1996, Kashuba posted several position statements claim- ing that the WFU continued to exist in an unaffiliated form, RTP Co., supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 482 ganization and must not be itself coercive in nature, and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting informa- tion concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees. I conclude that the written notice given to Erickson satisfied Respondent’s obligation to explain the purpose of the interview and assure him that no reprisals would take place. However, I conclude that Respondent violated Section 8(a)(1) by conduct- ing the interview in the presence of Kulas and Stoltman. Re- spondent is not entitled to put the burden on the employee as to whether management employees attend such an interview. An employee in Erickson’s position will tend to feel inhibited in insisting that they leave, a decision that itself might be viewed by management as uncooperative.22 While there may be situations in which the presence of a management official may be necessary in assisting counsel, there is no indication that this was true in the instant case. An employee is more likely to be intimidated in answering ques- tions in front of management officials with day-to-day author- ity over him than to an attorney he is likely to encounter only once or twice. Although Respondent’s counsel was clearly entitled to de- termine whether Erickson would corroborate its witnesses’ account of the negotiations, it violated Section 8(a)(1) in ob- taining from him documents that identified employees who attended union meetings and indicated the nature of the discus- sions at those meetings. Respondent also violated the Act in questioning Erickson about those meetings, which may have revealed to the Employer union sympathizers and union activi- ties of which the Employer was not previously aware. Respondent could have attempted to prove that its had a rea- sonable good-faith doubt of the Union’s majority status without inquiring into the identity of those of who attended union meet- ings and what was discussed. Only information that it had at the time of withdrawal would be relevant to its good-faith doubt. The number of people attending union meetings is also insuffi- ciently probative of whether the Union actually had majority support that Respondent’s inquiries with regard to these meet- ings is unjustifiable. 22 I conclude that it is irrelevant that Respondent had reason to be- lieve that Erickson no longer supported the Union, and may have been sympathetic to RTP with respect to the unfair labor practice charges, Le Bus, 324 NLRB 588 (1997). CONCLUSIONS OF LAW 1. By its letter of January 2, 1998, Respondent violated Sec- tion 8(a)(1) of the Act in undermining the Union and discourag- ing employee support for the Union by misrepresenting the reason employees would not be getting a wage increase and by blaming the Union for Respondent’s decision not to give a wage increase, when in fact, Respondent knew that the Union had acceded to the wage increase. 2. On February 26, 1998, Respondent violated Section 8(a)(1) and (5) in withdrawing recognition of the Union and refusing to bargain with it further. 3. Since February 26, 1998, Respondent has violated Sec- tion 8(a)(1) and (5) by bypassing the Union and dealing directly with unit employees in the following respects: a. Sending its employees a letter on March 19, 1998, informing them that Respondent was reviewing its medical, 401(k), vacation, and other benefits. b. Unilaterally implementing a superior attendance incentive program on April 15, 1998; c. Informing employees of the availability of health insur- ance coverage through Blue Cross and Blue Shield of Minne- sota in May 1998. 4. Respondent violated Section 8(a)(1) and (5) by refusing to comply with the information request submitted by Union Presi- dent Brian Stremcha on February 16, 1998. 5. Respondent violated Section 8(a)(1) in informing Pat Berg that it would no longer authorize him to take time off for union business on March 23, 1998. 6. Since February 26, 1998, Respondent has violated the Act in refusing to allow the Union to participate in the grievance process. 7. Respondent violated Section 8(a)(2) in paying Attorney Michael Bematz for legal services rendered to anti-UAW bar- gaining unit employees. 8. Respondent violated Section 8(a)(1) in conducting its pre- trial interview of employee Kenneth Erickson in the presence of its manufacturing manager and human relations manager. It also violated Section 8(a)(1) by inquiring into matters that re- vealed the identity of employees who attended union meetings and the discussions that took place at those meetings. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. RTP CO. 483 Respondent will be ordered to recognize and resume negotia- tions with the union on request.23 It will be ordered, by its 23 A bargaining order is the Board’s traditional remedy in this type of case, Bi-Craft Litho, 316 NLRB 302 (1995). Given the fact that Re- spondent had no basis for ceasing to bargain with the Union—apart from the illegal withdrawal of recognition, I see no reason to depart from this tradition. Respondent’s argument that a bargaining order is inappropriate because the Union never had the support of a majority of the unit employees, is essentially an effort to relitigate the initial Board decision, which ordered it to bargain with Local 2340 and upheld the validity of the affiliation vote. president or senior vice president/chief executive officer, to read to assembled employees the notice to employees, which appears at the end of this decision, in addition to posting the notice. Respondent will also be ordered to bargain collectively in good faith with the Union for a reasonable period of time concerning wages, hours, and other terms and conditions of employment, and if an understanding is reached, to embody it in a written agreement. [Recommended Order omitted from publication.]