Eastern States Optical Co., Inc.

EASTERN STATES OPTICAL CO. Eastern States Optical Co., Inc. and . Local 348, Warehouse Production Sales and Service Em- ployees Union. Case 29-CA-9212 30 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 24 September 1982 -Administrative Law Judge Harold B.-Lawrence issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a reply brief. The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. . The judge found that the Respondent violated Section 8(a)(1) by "approving" a decertification pe- tition and by "rendering advice and assistance" in the preparation and circulation of the petition. He also found that the Respondent violated Section 8(a)(5) by withdrawing recognition from the Union. For_ the reasons set forth below, we do not agree. The record reveals that the Respondent and the Union were parties to a collective-bargaining agreement that expired by its terms on 25 Septem- ber 1981.1 Sometime in 'June, employees Martin Rosenberg and Blossum Dixon began discussions concerning their desire -to decertify the Union.2 In early July, Rosenberg began preparation of -a de- certification petition. He testified that- he was unsure of the language to use and that he called the Respondent's attorney Max Bluestone. Rosenberg testified that he called Bluestone because he was the only attorney Rosenberg knew.3 The substance of the conversation between Rosenberg and 'Bluestone was vigorously contest- ed. Certain facts, however, are undisputed. Thus, it is clear that Rosenberg initiated the call and in- formed Bluestone- that the employees were seeking to decertify the Union and that he, Rosenberg, had some questions concerning the petition's wording. It is also undisputed that Bluestone told Rosenberg that he should contact the NLRB, which - Rosen- berg, in fact, did. Rosenberg further testified that Bluestone dictat- ed, to him the wording for-the petition. Bluestone i Unless otherwise noted all dates refer to 1981 2 It is uncontradicted that decertification was the idea of Rosenberg and Dixon and that the Respondent played no role whatsoever in initiat- ing the idea 3 Although Rosenberg knew Bluestone was the Respondent's attorney, the two men'did not personally know each other 371 denied so doing, 'testifying that Rosenberg read what he had written and that he, Bluestone, simply said "that sounds alright to me." The judge did not definitively reconcile the conflicting testimony. He found, however,.that Bluestone did provide at least some assistance to Rosenberg in wording the peti- tion. For purposes of this decision, we shall accept that finding.4 - Following his conversation with Bluestone, Rosenberg sent Bluestone a copy of the petition.5 Bluestone mailed the petition -back to Rosenberg with no comment or change. Meanwhile, Bluestone informed the Respondent's 'vice president Mark Shyer.that Rosenberg had contacted him concern- ing a decertification, petition. - Upon the petition's' return ' to him, Rosenberg, along with Dixon, secured the signatures of six out of the eight unit employees of the Respondent. There is no evidence that Rosenberg discussed his - conversation with Bluestone with Dixon or any of the employees who signed the petition. It is -also undisputed that the Respondent played no role in obtaining the'six signatures. • , The record also reveals that at some point Rosenberg, having secured decertification "forms from the NLRB, again telephoned Bluestone.6 Rosenberg testified that he told Bluestone he was having trouble with the Board's form and that -he needed to know the employee unit, the names of the Respondent's officials; and whether six signa- tures were sufficient. Bluestone told Rosenberg the union description in the collective-bargaining agreement, the names of the Respondent's officials, and stated that he believed six signatures were suf- ficient. On 21 July, Rosenberg submitted-the petition 7 signed by six employees to-Shyer. After receiving the petition, Shyer sent a letter to the Union which stated: • Please be advised that we have this day re- ,ceived a petition from a majority of the em- ployees covered by, the contract, made on Sep- tember 25, 1978, advising our company that ° Rosenberg's testimony was not a model of clarity He repeatedly ex- pressed an inability to remember important facts and contradicted his affi- davit In view-of our disposition of this case, we need not resolve the testimonial conflict The judge found that Bluestone requested a copy although Rosen- berg testified that it may have been his own suggestion that Bluestone be sent a copy - 6 There is no meaningful dispute,as to the substance of this conversa- tion ' The petition stated To Eastern States Opt Co Inc we, the undersigned employees of Eastern States Optical Co, Inc , constituting a majority of the em- ployees of your company, hereby notify you that we no longer wish to be represented by Local 348 Warehouse. Production; Sales and Service Employees Union formerly known as Local 348, I B 0 T U Dated July 21, 1981 275 NLRB No. 58 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they no longer wish to be represented by your local; - ' The judge found, and we agree, that -the letter con- stituted a withdrawal of recognition from ' the Union. - - After receiving the Respondent's letter, Union President Anthony Fazio came to the Respondent's premises 'where he encountered employee Sharon Cammock. Fazio asked her if she was aware of the petition. 'She said she was not. The next day Cam- mock approached Shyer and told him she had learned `that a majority of -employees had signed a petition "against" , the Union and that "I might as well sign myself." Shyer told -her he would get the petition for her. Later that day. he called her into his office and Cammock signed the petition. Cam- mock testified unequivocally that her action was entirely voluntary and that Shyer in no way en- couraged her to sign the petition. - On the foregoing facts,s:the judge concluded that the Respondent rendered. uunlawful advice and as- sistance in the preparation and circulation- of the petition and that the withdrawal of recognition predicated on the petition was also unlawful. In so doing, he - found that Bluestone's assistance of Rosenberg constituted more than "ministerial aid" and that Bluestone's actions, in. conjunction with Shyer's actions involving Cammock, established the Respondent's unlawful direct participation in the preparation, circulation, and filing of the peti- tion. We cannot agree. , We have no quarrel with the general legal .stand- ard applied by the judge to evaluate the. conduct. Thus, we agree that it is unlawful for an employer to initiate a decertification peti- tion,8 solicit signatures for the petition,9 or lend more than minimal support and approval, to the se- curing of signatures and the filing of the petition. 10 In addition, while an employer does not violate the Act by rendering what has been termed "ministeri- al aid," 1 1 its actions must occur in, a "situational context free of coercive conduct ." 2- In short, .the essential inquiry is whether "the preparation circu- lation, and 'signing of-the petition constituted -the free and. ' uncoerced act'. of the" employees con- cerned." KONG-TV-Mission- Telecasting, '163 NLRB 1005, 1006 967).1,1 1 - ` - - - We disagree with the. judge, however, on the ap- plication :of the instant facts to ;the,-foregoing' legal principles. It is- ,undisputed that the- Respondent played, no role, in Rosenberg's ;and.-D,ixon's decisio_n 8 Inter-Mountain Dairymen, 157 NLRB 1590, 1613 (1966) 9 D & H Mfg Co, 239 NLRB 393, 404 (1978) 10 Placke Toyota, Inc, 215 NLRB 395 (1974) 11 Times-Herald, Inc, 253 NLRB 524 (1980) 12. D & H Mfg. Co, supra at 403 - -^ to'initiate decertification proceedings. It is also un- disputed that the Respondent did not solicit any signatures for the petition and that, with the excep- tion of Bluestone's dealings with Rosenberg and Shyer's with Cammock, which are discussed below, no Respondent representative discussed or even mentioned the petition to any employee. Regarding Bluestone's editorial 'aid to Rosenberg and his supplying of Rosenberg with certain infor- mation relevant to the Board petition, we find that, although he may have acted unwisely, his actions did' not rise to the level of unlawful assistance. First, we find it significant that Rosenberg initiated the contact on both occasions on his own volition. Second, in each instance, Rosenberg stated that de- certification proceedings were in process and Bluestone said nothing to encourage or otherwise foster the process. Third, Bluestone did nothing more than render editorial suggestions and supply readily available factual information. In similar circumstances, the Board has found no unlawful assistance. In KONO-TV-Mission Telecast- ing, 163 NLRB 1005, 1006 (1967), employee Doss approached his employer's president Roth and asked if there was any way to oust • the union. Roth told Doss he would find out and that Doss should probably contact the NLRB. After checking with his attorney, Roth called Doss later that day. Roth told him to write to the NLRB. When asked if he told Doss what to say in the letter, Roth testified that Doss "asked me to give him an- example of what would be apprapo [sic] to say, and I gave him my idea of what I would say if I were writing that type of letter." The Board affirmed .the judge's conclusion that Roth's "assistance" was insufficient to establish that the petition did not constitute "the free and uncoerced act of the employees_ con- cerned." Id.. 13 As for Bluestone providing Rosen- berg with a unit description, the names of the Re- spondent's officials, and his statement that six sig- natures were probably sufficient for the Board's pe- tition, we find that such objective information is akin to an employer's lawful providing-of a list of employees or similar information.14 Regarding Shyer's actions in allowing Cammock to sign the petition, we also find no unlawful assist- ance.-As recognized by the judge, Cammock ap- proached Shyer and expressed her .own voluntary 19 See also Poly Ultra Plastics, 231 NLRB 787 (1977) In that case, a group of employees were preparing a-petition aimed at enabling them to revoke their authorization cards The employees, in the midst of the union . campaign, invited the employer's. president Allen to help them phrase the petition Allen did so The Board affirmed the judge 's conclu- sion that Allen's conduct was not unlawful because it "was limited to aiding employees in the expression of their predetermined objectives " 231 NLRB at 790 - 14 See, e g, Consolidated Rebuilders, 171 NLRB 1415 (1968) EASTERN STATES OPTICAL CO. desire to sign the petition. At that point, Shyer had been given the petition by Rosenberg and had al- ready acted to withdraw' recognition from the Union based on the petition. Accordingly, it cannot be said that Shyer solicited Cammock's signature or that he made a nascent petition generally avail- able to employees as an expression of the employ- er's approval of the decertification effort.15 In short, Shyer did nothing more than accede to an employee's voluntary request to sign a ' petition lawfully in his possession which had already served as basis for the withdrawal of recognition from the Union. In summary, we find that "the preparation, cir- culation, and signing of the petition constituted the free and uncoerced act of the employees involved." KONO-TV-Mission Telecasting, supra at 1006. In addition, all of the Respondent's actions concerning the petition were "limited to aiding the employees in the expression of their predetermined objec- tives." Poly Ultra Plastics, supra at 790.16 Accord- ingly, we conclude that the Respondent did not un- lawfully 'approve the petition or ' unlawfully- render advice and assistance in the petition's `preparation and circulation.'' Having so found, we also con- clude that the Respondent's- withdrawal of recogni- tion from the Union was ntainted ,by any unfair labor practice and was predicated on legitimate ob- jective considerations. Consequently, we shall dis- miss the complaint in its entirety. ORDER The complaint is dismissed. MEMBER DENNIS, dissenting. Contrary to my colleagues, I would adopt the judge's finding that the Respondent unlawfully ad- vised and assisted employees in preparing and cir- culating a decertification petition and consequently 15 Compare Placke Toyota, Inc, 215 NLRB 395 (1974), where the em- ployer acted unlawfully by allowing a petition to remain for several days on a supervisor's desk in view of the employees' 16 In concluding otherwise, our dissenting colleague relies on two cases which are inapplicable here In Seward International, 270 NLRB 1034 (1984), in a context of numerous other unfair labor practices, a judge found an employer had encouraged an employee to think about a decertification effort by asking him if he had ever thought about decerti- fying the union and then telling him "you can vote it out like you can vote it in" In Condon Transport, 211 NLRB 297 (1974), based on the amalgam of facts there, a judge concluded that "the decertification possi- bility [was] conceived" by the employer , and also "implanted " in its em- ployees' minds by the employer These circumstances are in no manner present here 17 We also reject any claim that the Respondent rendered unlawful as- sistance because Rosenberg used the Respondent's telephone and postage meter or that the Respondent allowed the solicitation of signatures during working time The record is barren of any indication that the Respondent knew of or condoned Rosenberg's use of the telephone and the postage meter As for ,the solicitation of signatures, the only pertinent testimony reveals that Rosenberg solicited one signature during lunch There is no evidence concerning when the other signatures were obtained or whether the Respondent knew when they were solicited 373 the Respondent cannot rely on the decertification petition' to justify withdrawing recognition from the Union. Before circulating the decertification, petition, employee Rosenberg contacted the Respondent's attorney (Bluestone), who advised Rosenberg about the petition's wording. Bluestone also informed the Respondent's vice president • Shyer that Rosenberg had contacted him about the petition. Rosenberg and employee Dixon, who circulated the petition, did not solicit employee Cammock. When Cam- mock heard about the petition, she went to Shyer, told him she wanted to sign it, and asked if he had the petition.. When Shyer said no, Cammock asked if he could get it. Shyer then went to Rosenberg, obtained the petition, and returned to his office, where Cammock signed it. I agree with the judge's finding that the Re- spondent's attorney, with the Respondent's knowl- edge, unlawfully assisted; in preparing the decertifi- cation petition. I also agree that the Respondent displayed an active interest in the petition's progress and employees 'were aware of the interest. The Respondent's conduct constitutes more than mere ministerial aid; indeed, as the judge reasons, without the Respondent's assistance the petition might not have' been filed. I would find that the Respondent's assistance in preparing the petition and interest in its progress interfered with employ- ees' Section '7 rights. See Seward International, 270 NLRB 1034 (1984); Condon Transport, 211 NLRB 297 (1974). Consequently, I would-find the Re- spondent is precluded from relying on the petition as grounds for withdrawing recognition of the Union. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard before me in Brooklyn, New York, on July 6, 1982 The charge- was filed on October 1, 1981, by Local 348, Warehouse Production Sales -and Services Employees Union (the Union). On November 17, 1981, the General Counsel issued a complaint and notice of hearing alleging violation of Section 8(a)(1) and -(5) of the National Labor Relations Act (the Act). It is alleged that the Respondent, Eastern States Optical Co., Inc., violated the Act by assisting employees in the prep- aration and circulation of a petition to decertify the Union and by withdrawing recognition from the Union after a' majority of unit employees signed the petition. The Respondent's answer denies the commission of the acts alleged and denies any violation of the Act. The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have-been 374 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD filed by.and on behalf of the General Counsel and the Respondent. On the entire record and based on my observation of the witnesses and consideration of the briefs submitted, I make the following - FINDINGS OF FACT I. JURISDICTION The complaint alleges, the Respondent admitted in its answer or stipulated at the,hearing, and I find that the Respondent is a New York corporation.having its place of business in Elmont;-New York, where it is and has been engaged in the sale-and distribution of eyeglass lenses and frames and related products. In its "annual op- erations it purchases and causes to be transported to its place of business lenses,-frames, and other goods and ma- terials valued in excess of $50,000, of which an amount in excess of $50,000 is delivered to it in interstate com- merce directly from outside the State of New York. Re- spondent is and at all material times has been an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.- Respondent stipulated at the hearing, and I accordingly find, that the Charging Party is and has been at all times material herein a labor orga- nization within. the meaning of Section 2(5) of -the Act. II. APPROPRIATE BARGAINING UNIT It was stipulated -at_ the hearing and I find that all em- ployees of the Respondent employed at, its Elmont loca- tion, exclusive of executives, salesmen, the comptroller, assistant comptroller, floor manager, assistant floor man- ager, guards and all supervisors as 'defined in Section 2(11) of the Act, constitute a unit appropriate for 'the purpose of collective bargaining within the meaning of Section 9(b) of the Act. III, THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The basic facts of this. case are not complicated and are largely undisputed.' The Respondent and the Union first entered into a collective-bargaining agreement on September 25, 1978. By its terms, the agreement was to run to September 25, 1981, and was automatically renew- able from year to year thereafter unless modified or ter- minated, by either party by service of notice by regis- tered -mail 60 days prior to the expiration date. Martin Rosenberg, who was employed in Respondent's office as an order clerk and biller, had not favored the Union and never joined it. Aware 'that the agreement between the Respondent and the Union • was up for renewal in Sep- tember 1981, he decided to petition for its decertification. _ The" word "decertification" was not part' `of Rosen- ' berg's vocabulary, but he knew that a procedure existed 1 The facts of the case as set forth in this section are a narrative com- posite of admissions contained in the answer of the respondent or made at the hearing, the undisputed and credited testimony, information con- tamed in the exhibits, and stipulations between counsel. Accordingly, the statement reflects those circumstances which are clearly established by the evidence though in some instances there may be circumstances which give rise to suspicion that events occurred somewhat differently for getting rid of an unwanted union. He decided to seek the help of the Respondent's attorney and asked for and received, from the Respondent's .bookkeeper, the tele- phone number of Max D. Bluestone, the. Respondent's at- torney. He telephoned Bluestone,' identifying himself as an employee of Respondent. Bluestone advised Roger Mark- Shyer, Respondent's vice president, that Rosen- berg had contacted him respecting a decertification peti- tion. Rosenberg first called Bluestone in early July 1981. As of that time, he had already prepared a draft petition. He read the text to Bluestone, who listened to it and sug- gested some editorial revisions. The revised petition read as follows: - To: Eastern States Opt. "Co. Inc. We, the ' undersigned employees of Eastern States Optical Co. Inc., constituting a majority of the em- ployees of your company, hereby notify you that we'no longer wish to be represented by Local-348 Warehouse, Production, Sales and Service Employ- ees Union formerly known as Local 348, I.B.O T.U. Dated July 21, 1981 Rosenberg mailed a copy of the revised petition to Bluestone and' took no further action to collect signa- tures on it until he received it back from Bluestone. Bluestone mailed it back to' him at Respondent's office, without changes. Rosenberg and another employee, Blos- sum Dixon, then proceeded to collect signatures 2 After six signatures were obtained, Rosenberg handed the peti- tion over to Roger Shyer, who sent a copy of it to the Union under cover of a letter dated July •23, 1981, in which he stated: Please be advised that we'have this day received a petition from a majority of the employees covered by the contract made on September 25th, 1978, ad- vising our company that they no longer wish to be represented by your Local.3 In his solicitation of signatures, Rosenberg overlooked an employee named Sharon Cainmock. She discovered that such a petition had been circulated only when the 2 Bluestone's testimony conflicts sharply with some of Rosenberg's tes- timony respecting the manner in which and the extent to which Blues- tone assisted him Bluestone testified that Rosenberg telephoned him and read the text of a petition which he had already prepared, to which Bluestone commented that it sounded all right to him Rosenberg, in the course of his testimony, gave several different versions of what hap- pened, varying from near agreement , with Bluestone's version to an asser- tion . that Bluestone .told him to get pencil and paper and take down the text of the petition , which Bluestone then dictated (Bluestone categori- cally denied having done that ) However, at one point, Rosenberg testi- fied that after .he called Bluestone in the first or second week of July 1981 he "wrote it out the way he had dictated to me or helped me write it and tried to make it look legal " He sent a copy down to Bluestone "to make sure that everything was written out correctly" retaining the origi- nal He discarded the first draft He spoke to Bluestone several days later after Bluestone had received the copy On the basis of Rosenberg 's testimony, Bluestone's testimony, and the actual text of the petition, which betrays the practiced hand of a lawyer, I conclude that the evidence establishes , at the very least, that Rosenberg wrote out a draft and Bluestone edited it 3 R Exh 2 - • EASTERN STATES OPTICAL CO. union president visited the premises following his receipt of the petition. He stopped to talk to her and asked her why she had not signed it. She decided that she' wanted to add her signature to the others on the petition. She did not go to Rosenberg, however, or to any other em- ployee. Instead, she went to Shyer. Shyer got_ the peti- tion from Rosenberg and called her into his office, where she signed it. Her action appears, on the surface at least, to have been purely voluntary.' B. Analysis Whether the Respondent has violated the Act depends on whether Respondent can be said to have exceeded permissible bounds in helping the employees who sought decertification of the Union and whether the Respond- ent's withdrawal of recognition of the Union on the basis of the petition for decertification constituted an unlawful refusal to bargain. Past decisions have severly circumscribed the extent to which an employer may become ' involved in employees' efforts to decertify a union. The test of whether the em- ployer's conduct violates employees' rights under Sec- tion 7 of the Act is whether the assistance provided by the employer "constitutes more than ministerial aid."5 Examples of the kind of minimal aid which have been found not to have transgressed the prohibition are the making available on request of a list of employees in the bargaining unit,6 and advising an employee where to write to the National Labor Relations Board for informa- tion on how to remove the Union, but even limited as- sistance of this type must be furnished within a "situa- tional context free of coercive' conduct"7 and must stop short of the point at which the employer may be said to have become involved in furthering employee steps to decertify the union by participating in the preparation or circulation of the petition, solicitation of employees to sign it, or assistance in forwarding the petition.8 The, 4 In his testimony, Shyer fixed the time of Mrs Cammock 's signature at a point after he had sent the petition with the six signatures to the Union His letter, of course, is dated July 23 He described the incident as follows Q What was it that she said to you and what was it that you said to her concerning the petition A She came into my office, she said,to me, how come the petition was never brought to me7 And I said I don't know I'd like to sign it, I think those were her next words, I'm not sure Maybe she said' how come it wasn't brought to me, or why didn't-I think she then said to me, do you have it? I said no She said could you get it for me" I said yeah Q And did you ultimately get it for her? A I walked over to Rosenberg and said Marty, let me have the petition He gave it to me, I brought it to her, she signed it, I gave it - back to Rosenberg On examination by Respondent 's counsel, Sharon Cammock testified that she signed the document of her own free will, because she wanted to,, and not because Shyer had given it to her In response to a series of ques- tions put by counsel , she denied that she had in any way been forced or intimidated into signing it, or that Shyer had asked her to sign it or im- plied that he wanted her to do so 5 Times-Herald, Inc, 253 NLRB 524 (1980) 8 Montgomery Ward & Co, 187 NLRB 956 (1971) - 7 D & H Mfg Co, 239 NLRB 393, 403 (1978) 8 D & H Mfg Co, supra at fn 6, Inter-Mountain Dairymen, 157 NLRB 1590, 1613 (1966), Placke Toyota, 215 NLRB 395 (1974) 375 preparation, circulation, and signing of the petition must constitute the free and uncoerced act of the employees concerned.9 Actions by an employer of • the type, pro- scribed raise a question as 'to, whether the employer has exerted pressure interfering with the employees' free choice of whether or not to resign from the union, thus undermining the whole election process.l ° The rationale for the interdiction of employer. activi- ties which would suggest its sponsorship and support for decertification movements has been set forth as follows: It is well established that the lending of assistance by an employer in an employee's withdrawal from a union, or the suggestion of the means and manner by which this can be accomplished, encourages and assists employees in their withdrawal and thereby interferes with, restrains, and coerces such employ- ees in^the exercise of their statutory right'to retain union membership, and is in violation of Section 8(a)(1) of the 'Act. As this is precisely what Kurtz accomplished here I conclude and find that he vio- lated the Act in these respects. Suffice it to say the procuring of union authoriza- tion withdrawals go [sic] to the heart of the election process, an absence of at . least some evidence that employees wish an election, the so-called 30 percent showing of interest being sufficient to preclude the holding of the election itself. i i The question which inevitably arises, especially in cases in which the employer did not initiate or prepare the petition, as to whether the employees would not have proceeded with decertification even without the employer's assistance has been resolved by holding the employer responsible for consequences which can rea- sonably be deemed to have been the probable conse- quences of its acts. Actions and statements by an em- ployer designed to instigate such a movement by sowing, dissatisfaction with the Union among the employees have been held to reasonably permit an inference to be drawn' "that the filing of the decertification petition was both the intended and the direct product of the Respondent's misconduct." 12 Another approach has been to hold that actual assistance by the employer creates a rebuttable presumption that such assistance contributed to the filing of the petition, which might otherwise not have been , . filed. 13 In the present case, the Respondent's attorney, with Respondent's. knowledge, assisted an employee in the preparation and filing of a decertification petition. By telephone and by direct perusal of a copy of.the petition sent to him by the employee, the attorney -either' re- viewed the phraseology submitted by the employee and approved it as written or; recommended or dictated changes in the language. The draftsmanship of the 'peti- tion suggests 'a I practiced legal hand.., The testimony ,is 8 KONO-TV-Mission Telecasting Corp., 163 NLRB 1005,.1006 (1967) 10 Smith 's Complete Market of Tulare County, 237 NLRB 1425 (1978) ' 1' City Supply Corp, 217 NLRB 950 (1975) 12 National Cash Register Co, 201 NLRB 1034 (1973), modified to re- verse finding 494 F 2d 189 (8th Cir 1973) 13 Dayton Blueprint Co, 193 NLRB 1100, 1108 (1971) 376- DECISIONS OF NATIONAL LABOR RELATIONS BOARD also unclear as to whether any of the telephone conver- sations originated-with the attorney.- However, I regard it as of little moment whether the petition was dictated by the attorney or reviewed and approved or modified by him and whether the telephone calls originated from his :office or from his client's premises. The important point is that there was .telephonic communication be- tween the attorney- and the employee and that the proc- ess bf collecting - signatures was undertaken only after the attorney had reviewed and returned the petition to the employee, Rosenberg. The proven collaboration between Respondent's attor- ney and 'Respondent's employee, to the -extent just de- scribed, is supplemented by other evidence which also establishes that the Respondent exhibited an active, pro- motional interest in the progress of the petition. There „is, for example, Rosenberg's testimony that Bluestone, who charged him no fee for his time and advise, "wanted to see if I had written the heading cor- rectly and he wanted a copy of that." Rosenberg assert- ed that Bluestone suggested that he mail him a copy of the petition. Respondent's officer, Shyer, knew Bluestone was being consulted by Rosenberg. Specific knowledge of the contents of-the petition is attributable to the Re- spondent by reason of its attorney's review, and possible authorship, of the petition; in any event, Shyer appears to have had direct access to the petition. When Sharon Cammock wanted to sign it, she went straight to Shyer, who got it.for her. Shyer's concern must therefore have been apparent to the employees. There is no other expla- nation for the fact that Cammock went to Shyer when she wanted to sign it (assuming the truth bf the version that Shyer did not induce her signature).- The significance of Shyer's presentation of the petition to Cammock is that it establishes the Respondent's direct participation in the process of circulating the petition and the knowledge on the part of employees that the Re- spondent was so involved. It was a specific act taken to further the circulation and the success of the petition to decertify the Union. I must reject Respondent's conten- tion that he did not thereby violate the Act because at that point the Union had already lost it majority. Such an argument fails because (1) the violation consists in violating employees' rights under Section 7 of the Act, which violations are committed regardless of whether a union majority is or is not extinguished at the time of commission; (2) such actions may be part of an ongoing campaign to assure' the success of the decertification movement; (3) Respondent is precluded from relying on such supposed loss of majority, as is explained below. Besides furnishing legal assistance and help in obtain- ing signatures, the Respondent 'permitted circulation and preparation of the petition to take place during working hours; made its facilities, stationery, and postage meter available to Rosenberg for that purpose; and in effect paid for the telephone calls to and from Bluestone. Since more than one employee was involved in collection of signatures to the petition, it must be held that the Re- spondent made that assistance available to Rosenberg as well. 14 - - The Respondent may not, by reason of its success in violating its employees' rights under Section 7 of the Act, cite the alleged loss of the.Union's majority either in support of actions such as procurement of signatures or in justification of its withdrawal of recognition of the Union. By,reason of the Respondent's having been found to have committed the proscribed actions in aid of the _ decertification petition, an inference may be drawn, or a presumption may be deemed to have arisen, that such ac- tions were the effective cause of the filing of the petition. Since its actions were illegal, the Respondent is preclud- ed from citing the supposed loss of the Union's majority, resulting from those very actions, as the basis for its withdrawal of recognition of the Union. Accordingly, the Respondent must also be found guilty of having refused to bargain in violation of Sec- tion 8(a)(5) of the Act. i s The Respondent has argued that no duty to bargain arose because the Charging Party made no demand that Respondent bargain In response to this argument, it suf- fices to note that the Charging Party demonstrated its continuing interest by visiting the Respondent's premises after receipt of Respondent's letter and by bringing the charge which underlies the instant proceeding. Such ac- tions belie any intention to waive the Respondent's obli- gation to bargain. The cases cited by Respondent in its brief, Citizens National Bank of Willmar, 245 NLRB 389, 390 (1979), enfd. 106 LRRM 2816 (D.C. Cir. 1981), and City Hospital of East Liverpool, Ohio, 234 NLRB 58, 59 (1978), are inapplicable, . for they deal with refusals to 14 The present case thus involves numerous factors not present in the circumstances of the cases cited by Respondent in its brief These may be noted briefly as follows. In Baker Machine & Gear, 220 NLRB 194 (1975), the attorney had done legal work for the employee on prior occa- sions, billed the employee for preparing the petition, and was fired by the employee The record was held to be "absolutely devoid of evidence" that the attorney was acting for the employer In Poly Ultra Plastics, 231 NLRB 787 (1977), the evidence failed to establish circulation of the peti- tion during working hours or the employer's approval of it, and it was specifically found that the employer did not initiate or assist in circulation of the petition In Mosher Steel Co, 220 NLRB 336 (1975)[ enfd 532 F 2d 1374 (5th Cir 1976), the employer had its attorney prepare a letter for the employees' use and made supplies available to plant managers, but with instructions to give them out only when asked and under no circum- stances to furnish paper or stamps or mail the letters for the employees Most importantly, there was no evidence that the letters were actually used In Safeway Trails, 216 NLRB 951 (1975), remanded sub nom United Transportation Union Local 1699 v NLRB, 546 F 2d 1038 (D C Cir 1976), it was held assistance was minimal and had nothing to do,with the employees' decision In Jimmy-Richard Co, 210 NLRB 802 (1974), the employer returned the letters to the employees to forward to the union and kept no file copies In Payless Drug Store of Port Angeles, 210 NLRB 134 (1974), as in Mosher Steel Co, supra, there was no evidence that forms which had been made available had in fact been utilized is Craftool Mfg Co, 229 NLRB 634, 638 (1977) I find the cases cited- by Respondent in connection with this issue to be readily distinguishable on their facts In Southern Wipers, 192 NLRB 816 (1971), the employer's belief that the union majority had vanished was tenable in the light of extensive personnel turnover, including the members of the union 's nego- tiating committee In addition, there was no context of unfair labor prac- tices No collective-bargaining agreements were in effect in either South- ern Wipers or Viking Lithographers, 184 NLRB 139 (1970) In Charles Mfg. Co, 245 NLRB 39 (1979), it was found that there was no involve- ment in circulation of the petition and no contact with the affair beyond acceptance of receipt of the petition EASTERN STATES OPTICAL CO. discuss particular matters such - as changes in working conditions with the employees' recognized representative and do not involve a total rejection of a labor organiza- tion's claim to be such a representative. Pride Refining v. NLRB, 555 F.2d 453 (5th Cir. 1977), is inapplicable be- cause there was no question of the validity of the peti- tion for withdrawal of recognition or the means by which it had been obtained. IV. THE EFFECT OF THE UNFAIR. LABOR PRACTICES, UPON COMMERCE The violations of the Act found to have been commit- ted by the Respondent have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and "obstructing commerce and the free flow of commerce. - CONCLUSIONS OF LAW 1. Eastern States -Optical Co., Inc. is an employer within the meaiiing of Section- 2(2) of the Act and is en- gaged in commerce and business activities which affect commerce within the meaning of Section 2(6)-and (7) of the Act. 2. Local 348, Warehouse Production Sales and, Serv- ices Employees Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Respondent exclusive of ex- ecutives, salesmen, the comptroller and assistant comp- troller, the floor manager and assistant floor manager, the guards and all supervisors as-defined in Section 2(11) " of the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of,the Act. 4. At all times material herein, the Union has been and is the exclusive representative of the employees of the Respondent within the unit herein found appropriate for' the purposes of collective bargaining. 5. The Respondent violated Section 8(a)(1) of the Act in and about July 1981 by approving a petition seeking to decertify the Union and by- rendering advice and as- sistance to employees in the preparation and circulation of the said petition,, thereby committing an unfair labor practice. I 6. The Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act on and after July 23, 1981, biwithdrawing recognition from and refusing to bargain with the Union as the exclusive bar- 377 gaining representative of-its employees in the above-de- scribed unit. .- 7. The foregoing unfair labor practices affect interstate commerce within the meaning of Section 2(6) and (7)' of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices by reason of its-support and assist- ance in the preparation and-circulation of the decertifica- tion petition and by reason of its refusal to bargain col- lectively with the Union, I shall recommend that Re- spondent be required to cease and desist from such con- duct in the future and take such affirmative action as will effectuate the purposes of the Act. Such affirmative action shall include the immediate resumption of bargain- ing with the Union. 16 The Respondent shall also, to the extent that compliance has been permitted to lapse since July 23,,1981, make the unit employees whole by paying all sums due to the I.B.O.T.U. Health and Welfare Fund and all dues checkoff sums which are required to be paid pursuant to articles VIII and XVII of the collective-bar- gaining agreement' which have not been paid and which would have been paid had the Respondent not -with- drawn recognition form the Union. In"addition, the Re- spondent shall make any payments required to be made in order to make employees whole for any benefits which became payable, but were not paid, for benefits due employees for sick leave, injury, and, military leave pursuant to articles IX, XIV, XXI, and XXIII of the,col- lective-bargaining agreement, and any of the pay provi- sions of said agreement and shall, if necessary and to the extent possible, implement any provisions respecting dis- charge of employees only for good cause after arbitra- tion. [Recommended Order omitted from publication.] 16 The General -Counsel contended that the acts of the Respondent in furtherance of the decertification petition and its assistance "in that it made itself a conduit for the procurement of employee signatures on the showing of interest" tainted the atmosphere to the extent that an election cannot be held and that the only appropriate iemedy is issuance of a bar- gaining order I agree with this contention because, aside from the inher- ently coervice nature of the act of the employer procuring signatures and making legal counsel available, I found myself confronted with two of the most nervous witnesses I have ever seen on a witness stand Rosen- berg was patently upset and Cammock was literally in a state of near pa- ralysis She said she was. frightened because she had never testified before, but the emotional condition exhibited by this witness could have been produced by the employer's presence in the courtroom