Chas. S. Winner, Inc.

62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chas. S. Winner, Inc. and Local No. 115, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO.1 Case 4-CA-14811 June 14, 1988 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 24, 1985, Administrative Law Judge Irwin Kaplan issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed cross-excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and supporting briefs and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER JOHANSEN, dissenting. For the reasons set forth in my dissent in West- ern Commercial Transport, 288 NLRB 214 (1988), I find that the Respondent's employees' affiliation with Teamsters Local 115 was valid and that the Respondent violated Section 8(a)(5) and (1) of thel Act by refusing to bargain with Local 115, engag- ing in direct dealing with the employees, instituting unilateral changes, and refusing to discuss griev- ances. Additionally, I find that the Respondent also violated Section 8(a)(2) and (1) of the Act, as al- leged, in its statements and conduct that conveyed it was futile for employees to support Local 115, and by resuming dues checkoff on behalf of OVSC, processing a grievance filed by OVSC, and i On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 In agreeing with the judge that there is no continuity of representa- tive under the circumstances herein, we rely on the Board's recent deci- sion in Western Commercial Transport, 288 NLRB 214 (1988) In his decision , the judge discussed at length the potential applicability of Quemetco, Inc, 226 NLRB 1398 (1976), to affiliation cases The Board, at fn 13 of Western Commercial Transport, supra, overruled Quemetco "to the extent that it holds that an amendment of certification may be grant- ed notwithstanding evidence showing the absence of continuity of repre- sentative " We find it unnecessary to pass on the judge's discussion of the Re- spondent's collateral estoppel defense contained in fn 17 of his decision Member Cracraft finds it unnecessary to rely on the judge's citation of RCA Del Car,be, 262 NLRB 963 (1982) bargaining and executing a new collective-bargain- ing agreement with that labor organization. On May 11, 1984, the Respondent's employees voted 17 to 12, in a unit of approximately 30,1 to affiliate with Local 115 and immediately thereafter voted unanimously to dissolve OVSC and to trans- fer the latter's treasury to Local 115. The election was the culmination of an investigation into the prospects of affiliating with another labor organiza- tion that was undertaken by OVSC members and officers more than a month earlier. Employees signed petitions authorizing Local 115 to represent them and a special notice was posted 1 week in ad- vance of the May 11 meeting and vote. The em- ployees voted by secret ballot. Accordingly, due process safeguards were met.2 Consistent with my dissent in Western Commercial Transport, supra, therefore, I find that Local 115 obtained the major- ity support of the Respondent's employees. Indeed, a clear majority of all unit employees favored affili- ation. Moreover, I find that Local 115 retains ma- jority support despite employees voting to disaffili- ate and to revive OVSC inasmuch as the subse- quent election was the direct and desired result of the Respondent's unfair labor practices. i All unit employees had an opportunity to vote. 2 I reject the Respondent's contention that due process was not ob- served because the vote contravened a provision of the OVSC constitu- tion requiring a two-thirds majority to amend the constitution. Whatever the ramifications of affiliation , it cannot be characterized as a constitu- tional amendment Significantly, no employees complained that the con- stitution was disregarded or that the election was conducted improperly William Slack Jr., Esq. and Judith L Katz, Esq., for the General Counsel. Steven W. Suflas, Esq. (Archer & Greiner), of Haddon- field, New Jersey, for the Respondent. Norton Brainard, Esq., of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge. This case was heard on April 22, 23, and 24, 1985, in Philadelphia, Pennsylvania. The underlying charges were filed on 9 January 1985, by Local No. 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 115, Union, or Team- sters), and gave rise to a complaint and notice of hearing on 28 February 1985, amended at the hearing (G.C. Exh. 2), alleging that Chas. S. Winner, Inc.' (Respondent), en- gaged in certain conduct violative of Section 8(a)(5), (2), and (1) of the National Labor Relations Act (the Act).2 The caption appears as amended at the hearing (G C Exh 2) 2 As a result of a partial settlement at the outset of the hearing, the allegations contained in pars 10, 11(a), 12(a), 15, and 18 of the original complaint were deleted 289 NLRB No. 13 CHAS. S. WINNER, INC. 63 The essence of the outstanding allegations is that the Respondent unlawfully refused to accept the affiliation of the Organization of Vehicle Sales Counselors (OVSC) with the Teamsters by refusing to recognize and bargain with the Teamsters in violation of Section 8(a)(5) and (1) of the Act. Further, it is alleged that Respondent independently violated Section 8(a)(5) and (1) of the Act by dealing di- rectly with unit employees over mandatory subjects of bargaining and bypassing the Teamsters; by making cer- tain unilateral changes in terms and conditions of em- ployment without providing notice and giving the Team- sters an opportunity to bargain; and by refusing to dis- cuss a discharge grievance under the then -outstanding collective-bargaining agreement with representatives of the Teamsters. Correspondingly, it is alleged that Respondent violated Section 8(a)(2) of the Act by its continued support and recognition of the OVSC following the affiliation, as well as, by negotiating and executing a new collective- bargaining agreement with that organization. Still further, it is alleged variously that the Respondent independently violated Section 8(a)(1) of the Act by cre- ating the impression to employees that their union activi- ties were under surveillance; by informing employees that it would continue to recognize and bargain only with the OVSC and, conversely, that it would never rec- ognize the Teamsters; by other statements, acts, and con- duct conveying to employees that their efforts in support of the Teamsters would be futile; by threatening to close the facility if the employees supported the Union; and by conditioning increased employee benefits on their sup- port for the OVSC and a corresponding abandonment of the Teamsters. The Respondent filed an answer conceding, inter alia, jurisdiction, the labor organizational status of Local 115 and the OVSC, the appropriateness of the bargaining unit, and the statutory supervisory status of the individ- uals so alleged. Respondent denied that it committed any unfair labor practices. Affirmatively, Respondent chal- lenges the validity of the affiliation in question, mainly, because it assertedly resulted in a break in the "continui- ty of representation" and, as such, it failed to comport with the outstanding Board and court precedents.' On the entire record, including my observation of the demeanor of the witnesses, and after careful consider- ation of the posttrial briefs,4 I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a New Jersey corporation engaged in the business of selling new and used vehicles at its sole facility, which is located in Cherry Hill, New Jersey. During the past year, Respondent, in connection with its aforenoted business operations, derived gross revenues in excess of $500,000 and purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of New Jersey. It is admitted, the record disclosed, and I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS INVOLVED It is admitted, the record disclosed, and I find that the OVSC is a labor organization within the meaning of Sec- tion 2(5) of the Act. It is admitted, the record disclosed, and I find that Local 115 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent voluntarily recognized the OVSC for a unit comprised of its new- and used-car salesmen in 1978. Since then, they have been parties to successive collective-bargaining agreements, the last of which by its terms is effective 27 March 1985 through 27 March 1989 (Jt. Exh. 2). The Teamsters first became involved around April 1984 or midterm of the previous collective-bargain- ing agreement, which by its terms was effective 1 Sep- tember 1983 through 28 February 1985 (Jt. Exh. 3). In March or early April 19845 a number of Respondent's unit employees met and explored the prospects of replac- ing OVSC with another union as their collective-bargain- ing representative. Among the employees present at that meeting were the officers of OVSC: President William Francis, Secretary John Fearow, and Treasurer William Casey. A committee was formed, which included em- ployee Leonard Baldino, to commence a search for an outside union.6 The search for another union led to Teamsters Local 115, and meetings were conducted in April between the committee and representatives of the aforesaid Teamsters local. On 30 April, the committee in- formed Local Teamsters President Joe Yeoman and Busi- ness Representative Robert Henninger that a majority of Respondent's employees favored joining their organiza- tion. The Teamsters representatives informed the com- mittee members of the mechanics necessary for union af- filiation. Within the next few days virtually all of Re- spondent's employees signed Teamsters authorization pe- titions indicating their "desire" to become members of Local 115 and designating that Union as their collective- bargaining representative (Jt. Exhs. 8, 9, 10, and 11). On 2 May, employee Leonard Baldino dropped off these signed Teamsters petitions at the local union office. The following night Business Representative Henninger gave Baldino copies of a notice to post at Respondent's facili- ty advising all the employees of a meeting and vote to be held on 11 May to determine whether to affiliate with the Teamsters (G.C. Exh. 3). The notice, which was posted about 4 May, in its entirety reads as follows: 3 In its posttnal brief, Respondent made some subsidiary contentions These too have been considered and will be treated infra 4 Respondent's unopposed motion to correct transcript is granted 5 Unless otherwise specified, all dates refer to 1984 6 The OVSC, the incumbent Union, is an independent union with its members comprised of only Respondent's employees 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE ORGANIZATION OF VEHICLE SALES COUNSELLORS There will be a meeting held on Friday, May 11, 1984, at the Best Western Gloucester Inn, US Route 130 & North-South Freeway, Gloucester, N.J., to vote by secret ballot on the question of whether to affiliate the Organization [OVSC] with Teamsters Union Local No. 115. The meeting will begin promptly at 7:00 PM and the election will be held from 8:00 PM until 9:00 PM to give everyone an opportunity to vote. We look forward to seeing you on May 11. At the outset of the 11 May affiliation meeting, the employees signed a sign-in sheet indicating their presence (G.C. Exh. 12). William Francis, the OVSC president, made some preliminary remarks noting that the employ- ees were there to vote whether they wanted to affiliate with the Teamsters . Yeoman and Henninger also attend- ed that meeting as representatives of the Teamsters to answer any questions from Respondent's employees. The affiliation election by secret ballot took place shortly after the Teamsters representatives left the room. The question posed on the ballot was: "Should the Organiza- tion of Vehicle Sales Counsellors affiliate with Teamsters Union Local No. 115 a/w the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America?" (G.C. Exh. 14.) Employees Edward Lipman and Jerry Graham acted as observers and in connection therewith checked off the names of employees from a voting list (G.C. Exh. 13) as employees came up to the table for their ballots. The ballots were counted that night and disclosed that 17 were cast for affiliation and 12 votes were cast against.' (G.C. Exh. 15.) After the votes were counted, Francis invited a motion from the floor turning over the assets of OVSC to the Teamsters and that the organization be deemed dissolved. The motion was made and carried. The next morning Respondent's general manager, Joseph Marazzi, heard talk around the dealership and learned the result of the affiliation vote. Marazzi also ac- knowledged receiving from OVSC President Francis a letter addressed to John Hynansky, Respondent's presi- dent, dated 14 May, formally notifying him that "A sub- stantial majority" of OVSC voted to affiliate with the Teamsters (Jt. Exh. 7). About that same time Respondent ceased its monthly practice of deducting dues from em- ployees' paychecks for remittance to OVSC.8 Also, about that time, a check in the amount of approximately $3400, which represented the sum in the OVSC treasury, was turned over to the Teamsters.9 Still in May, and ap- I There were 30 unit employees then employed Thus, only one em- ployee failed to cast a ballot There is no contention , nor does the record tend to show that any unit employee was denied an opportunity to cast a ballot Further, Respondent does not dispute that the ballots were cast in secret s The record is unclear regarding the individual who authorized this action 9 This check was commingled with the Teamsters local's general treas- ury as well as any dues to be collected from Respondent's employees The Teamsters local also assumed the liabilities of OVSC proximately a week to 10 days after the affiliation vote was taken, Teamsters Local President Yeoman designat- ed employee Leonard Baldino as the Local's representa- tive for Respondent's employees. By letter dated 29 May, Respondent, by its counsel, Stephen Suflas, re- sponded to the Teamsters letter of 14 May and, in es- sence, declined to bargain concerning the members of OVSC. (Jt. Exh. 8.) Attorney Suflas disputed the affili- ation vote as legally defective because it contravened the provisions of the OVSC constitution and, also, on the basis that the purported affiliation created a break in the continuity of representation. 10 On 19 June, one of the unit employees handed Marazzi a written grievance signed by nearly all the employees in response to Re- spondent's refusal to recognize the Teamsters as the "successor and assign [of OVSC] under Section 7 of [the] collective-bargaining agreement."11 (Jt. Exh. 9; A. Exh. 1, par. 7.) Marazzi brought up the subject of the grievance on Wednesday, 21 June, at a regularly sched- uled weekly sales meeting and made arrangements for another meeting to be held with the OVSC committee to discuss that grievance. That meeting was held within a few days in the office of Thomas Hatzis, a co-owner of Respondent and its secretary-treasurer. 12 Hatzis along with co-owner and President John Hynansky and Mar- azzi attended this meeting on behalf of management; the employees were represented by Robert Esposito, Edward Stasny, Richard Wilson, Vincent Baldino, John Fearow, and Bill Francis, collectively, a so-called liaison committee of OVSC (Jt. Exh. 11). Hynansky carried the bulk of the discussion and touched on a dialogue for revising three major ongoing concerns of the employees: the house deal or bone system, the phone-up system, and the pension plan. 113 A few days later Hynansky, Hatzis, and Marazzi met with the entire OVSC membership. Hynansky opened the meeting stating that it is the Company's position, under the advise of counsel, that the affiliation vote was not legal. Further, that the Company's bargaining obligation 11 The Respondent relies on the provision in the constitution providing for amendments (art XIX) that requires the approval of a two-thirds vote to amend provisions in the constitution (Jt Exh 4, pp. 7-8). 11 Sec 7 of the then-outstanding collective-bargaining agreement be- tween Respondent and OVSC provided. "This agreement shall be bind- ing upon the Company and the Organization and their successors and as- signs." (Jt Exh 3, p. 5 ) 12 The record is somewhat inconsistent and confusing with regard to the precise dates and events during the 6-day period commencing 18 June However, a composite of the material facts during the aforenoted timeframe, as related herein, is essentially undisputed Is A "bone" involves a car sold by a manager for which a salesman is given credit for commission purposes The salesmen had complained about the manner in which bones were assigned While no changes were agreed to at that meeting, the discussions thereon eventually led to, inter alga, revisions in the house deal system . Thus, after July, the bones were rotated among the salesmen Similarly, the salesmen had complained that phone-ups were distributed unfairly Phone-ups refer to a system by which customer phone calls are distributed Formerly, the company tele- phone operator routed the call directly to the manager, who in turn, passed this call or potential sale to one of his salesmen This system was revised (after July) by the operator bypassing the manager and paging the sales floor so that any salesman answering the page got the call As for the pension plan, the Company later agreed to increase its contribu- tion to 2 percent of the salesman's salary Again, these items were only explored in June but not agreed to until July CHAS. S. WINNER, INC. 65 continued to be with OVSC and not the Teamsters. As such, Hynansky requested that the employees withdraw their grievance (Jt. Exh. 9) over the Company's refusal to recognize the Teamsters. During the course of that session Hynansky repeated what he had conveyed to the liaison committee a day or two earlier, to wit, that he was amenable to certain revisions in the phone-up and bone programs and the pension plan. About 24 June, William Francis gave Marazzi a two- page document dated 23 June summarizing recent events dealing with the affiliation vote and union representation, which was signed by nearly all the employees (Jt. Exh. 11). The summary included an "understanding " that Re- spondent would make an "immediate response" to em- ployee grievances dealing with phone-ups, house deals, or bones and the pension plan. The concluding para- graph in the summary document stated as follows: It was suggested and discussed among members at- tending this [liaison committee] meeting that the letter of the 18th [sic] of June be withdrawn and dialogues kept open on all issues above. To Hynansky, the aforenoted document constituted "a withdrawal of the grievance" over the Company's failure to recognize the Teamsters . In early July, Len Baldino handed Marazzi another grievance under Section 7 of Respondent's collective-bargaining agreement with OVSC over Respondent's refusal to recognize the Team- sters as the assignee or successor to OVSC. t' According to Hynansky, as Baldino was not a representative of OVSC, he would not discuss the grievance. By letter dated 6 July, Attorney Suflas responded to Baldino's grievance stating the Company's position as follows: [Y]our grievance was not properly filed and it is not arbitrable or cognizable under the terms of the Company's current collective-bargaining agreement with the Organization of Vehicle Sales Counselors [Jt. Exh. 14]. Along with the aforenoted response, Attorney Suflas provided Baldino a copy of his earlier letter to the Teamsters dated 29 May disputing the legality of the af- filiation vote. On 11 July, Hynansky once more addressed the entire sales force, at a meeting at Respondent's facility, over employee grievances and the subject of union representa- tion. He continued to dispute the legality of the affili- ation vote and expressed a willingness to deal only with representatives of OVSC over employee problems. Hyn- ansky indicated that he was receptive to employee com- plaints about inequities in the house deal and phone-up programs and over the pension plan but only in a setting free of Teamsters representation. According to Hyn- ansky, the two union situations generated much confu- sion and prevented any open dialogue with employees 14 This grievance (Jt. Exh 13) was signed by Baldino, as a Teamsters representative, unlike the earlier grievance (Jt. Exh. 9), which was signed by all the OVSC members. Baldino had been in Florida for a 2- to 3- week period in June and missed some of the events leading to withdrawal of the earlier grievance. over their grievances and he therefore asked for a "vote of confidence." Hynansky left the room to permit the employees to decide by themselves whether to press for Teamsters representation or to open dialogue as OVSC members. This latter condition was clearly favored by Hynansky. However, the employees could not then agree on a course of action and decided not to conduct a vote. On 12 July, Francis called another meeting of the OVSC membership and pressed for another election as urged by Hynansky. This was not without opposition as some employees considered the earlier affiliation vote designating the Teamsters as their bargaining representa- tive as valid. A heated encounter between Francis and employee Edward Lipman (who opposed another elec- tion) ensued. Lipman challenged Francis' authority pointing out that he was no longer president and that OVSC no longer existed. Lipman , unable to prevent an- other election at that time , left the room in protest and did not vote. Len Baldino testified that, although he was with a customer at the time the vote was taken, he was told (by someone unnamed) that the employees voted 18 to 4 against Teamsters representation. In any event, it is undisputed that a majority of the employees voted against the Teamsters on that occasion . Later that day, Francis gave Hynansky a document signed by most of the employees abandoning their interest in the Teamsters (Jt. Exh. 17). The document stated as follows: We desire to continue a direct dialogue with the Company on all issues regarding our employment. We do not wish to be represented by Teamsters Local 115. We hereby nullify the affiliation vote taken on May 11, 1984. On 16 July, Hynansky, Hatzis, and Marazzi met with OVSC representatives and employees Francis , Wilson, Fearow, and Stasny and reached a memorandum of un- derstanding (Jt. Exh. 31), which contained, principally, revisions in phone-ups, house deals, and an increase in the company pension plan contribution to 2 percent of the annual salary for each employee. t s In mid-July and within a few days of the employee pe- tition rejecting the Teamsters, Lipman had a conversa- tion with Respondent's general sales manager, Richard Cusato, after work, at Shepherds Inn in Cherry Hill, New Jersey, over company reprisals as a result of em- ployee support for that union. While it is undisputed that the subject of reprisals had come up on that occasion, the respective accounts provided by Lipman and Cusato are vastly different. According to Lipman, Cusato told him on the occa- sion in question that the Company knew the identity of the Teamsters supporters and maintained a "hit list" of those supporters it intended to fire. At that time Cusato 16 According to Hynansky, the Company had intended to increase its pension contribution to only 1 percent at that meeting , but the "good- will" generated by the employees in signing the petition on 12 July re- jecting the Teamsters (Jt. Exh. 17), encouraged the Company to fatten its contribution to 2 percent Further, in that same spirit of "good will" it decided to rescind all prior employee disciplinary warnings contained in their personnel files 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also assertedly disclosed that he had a tape of an employ- ee meeting at the Gloucester Inn where they had ex- plored substituting outside union representation for the OVSC and decided to search for such a union. Accord- ing to Lipman, Cusato convinced him that the Company had such a tape because he recited nearly word for word statements made by him (Lipman) and employee William Casey at that meeting. On the other hand, Cusato testified that Lipman intro- duced the subjects of "hit list" and "tape recordings" in the conversation. According to Cusato, Lipman was under the impression that the Company had a list of em- ployees (Teamsters supporters) which included Lipman's name targeted for dismissal. Cusato testified that he told Lipman that he had no knowledge of any such list or tape of any union meeting and in fact, asserted, that he has no such knowledge. Lipman also testified, without corroboration, that around mid-July, he had a brief encounter with Marazzi over his support for the Teamsters. According to Lipman, and denied by Marazzi, the latter shouted at him and Len Baldino and told them that they were not going to tell him how to run his business. Further, during this conversation Marazzi also stated "You know, the cards are stacked against you guys. You should be smart enough to know you can't win this thing." Mar- azzi denied that any such conversation occurred. On another occasion, as testified by Lipman, in late August, he had a much more lengthy conversation with Marazzi, in his office, about the Union. According to Lipman, he continued to press for Teamsters recognition without any success. Marazzi assertedly told Lipman that the owners would go to any length , including selling the facility, to keep that Union out. Marazzi on the other hand places this meeting in late October and, although he acknowledged that the subject of the Union came up, his version of what transpired at that session is substan- tially different from the account provided by Lipman. Marazzi testified that Lipman asked him why the Com- pany refused to recognize the Teamsters and he, in turn, responded, that OVSC has always been the recognized Union and under the advice of counsel, the Company will continue to recognize that organization. He denied, inter alia, that he told Lipman that the owner's would close down the facility or go to any length to avoid deal- ing with the Teamsters. According to Marazzi, most of that session was devoted to Lipman's performance as a salesperson, which assertedly was not up to par. In mid-October, Respondent resumed deducting dues from employees' salary for OVSC. That month, Francis, as president of OVSC, called the first membership meet- ing since July. According to Lipman, there was a good deal of confusion over the bargaining status of OVSC given the earlier Teamsters affiliation vote, the recent re- sumption of dues, and the fact that the OVSC had not conducted a membership meeting since July. A motion was made from the floor and carried to elect new OVSC officers. On 24 October, an election by secret ballot was conducted whereby Lipman and Bob Wyatt were elect- ed president and secretary, respectively, and William Casey reelected treasurer. Within a few days, Hatzis congratulated Lipman on being elected president and asked him to name the other officers. According to Lipman, Hatzis also pressed for the minutes of the OVSC meeting. This was denied by Hatzis. While Hatzis acknowledged that he referred to the minutes, he asserted that he did so because Lipman told him that he forgot who else was elected. According to Hatzis, he made inquiries regarding the identities of the new officers because it was soon time to commence negotiating a new collective-bargaining agreement and he wanted to know the identities comprising the union negotiating team. Hatzis and Lipman continued to dis- agree at that time whether the Company's bargaining ob- ligation was with OVSC or the Teamsters, with Lipman, notwithstanding his elective office with OVSC, still sup- porting the Teamsters. About 12 November, Marazzi met with Lipman and Len Baldino at the Hideaway Restaurant and the ques- tion of the Company's bargaining obligation, vis-a-vis, the Teamsters or OVSC was raised once again. Accord- ing to Lipman and Baldino, the former urged Marazzi to recognize and bargain with the Teamsters. Baldino testi- fied that he was asked by Lipman to attend that meeting because he was a Teamsters representative. While there was no tangible movement on the question of union rep- resentation, Marazzi testified that Lipman told him that if the OVSC leadership was happy with the outcome of contract negotiations, it would recommend that the sales force support the organization. By letter dated 15 November, the Teamsters served notice on Respondent of its desire to terminate the col- lective-bargaining agreement due to expire 28 February 1985.16 (Jt. Exh. 25.) Respondent was then involved in ongoing related Federal court litigation contesting, inter alia, the Teamsters' standing as a "successor" or "assign" to the OVSC.17 By letter dated 20 November, Respond- ent restated its position, to wit, that it was not obligated to bargain with the Teamsters and would not negotiate with that Union as representative of its salesmen. (Jt. Exh. 26.) In early December, Marazzi wrote to Lipman, in the latter's capacity as president of OVSC, about meeting to commence negotiations with the organization for a new collective-bargaining agreement (Jt. Exh. 27). Marazzi also requested a letter from Lipman "listing all of the newly elected officers of the organization." 16 As noted previously, the Teamsters contends that after the affili- ation, it replaced OVSC as a party to the collective -bargaining agreement by virtue of the Sec 7 successors-and-assigns provision therein. The afor- enoted notice was sent in compliance with sec 30 of that agreement, which requires either party desiring to terminate the agreement to pro- vide written notice at least 90 days before the expiration date (Jt Exh 2) 17 On July 6, 1984, the Teamsters filed a demand for arbitration with the American Arbitration Association The Respondent, on 9 August, filed a complaint in the United States District Court for the District of New Jersey to enjoin this action (Jt Exh 22) On 7 March 1985, District Judge Stanley S Brotman found , inter alia, that the Company was not bound by the collective-bargaining agreement to bargain or arbitrate with the Teamsters (Jt Exh 23) Respondent contends that the Board is col- laterally estopped from deciding the refusal -to-recognize-and-bargain alle- gations CHAS. S. WINNER, INC. Lipman was discharged on 13 December. On 20 De- cember, Lipman filed a grievance asserting that Marazzi discharged him without just cause in violation of the col- lective-bargaining agreement (Jt. Exh. 29). At that time, Lipman appeared at Respondent's facility accompanied by two Teamsters business representatives who asked Marazzi to discuss Lipman's discharge. Marazzi noted that the Company does not recognize the Teamsters and refused to discuss Lipman's grievance . A moment or two later Hatzis took the same position.18 In early January 1985, Richard L. Wilson was elected the new president of OVSC. Soon after, Hatzis ap- proached Wilson with regard to commencing negotia- tions for a new collective-bargaining agreement.19 The negotiations commenced about 10 January and , in all, there were five bargaining sessions culminating in the current collective-bargaining agreement effective by its terms 27 March 1985 through 27 March 1989 (Jt. Exh. 2). B. Discussion and Conclusions 1. The 8(a)(5) allegations It is undisputed that this case turns largely on whether the affiliation in question was valid. The General Coun- sel, in urging that the affiliation be upheld, contends, that the Board's requirements for "minimal due process" and "continuity of representation" were clearly met. In so contending, the General Counsel relies heavily on Que- metco, Inc., 226 NLRB 1398 (1976), asserting that the facts in the instant case "are identical in [many] respects to those in Quemetco." Although it is undisputed that adequate notice of the meeting to vote on affiliation was provided, that all unit employees had an opportunity to cast secret ballots, and that a majority of them voted by a 17-to- 12 margin in favor of affiliation, Respondent contends that the vote was nonetheless defective and fell short because, under the OVSC constitution, a two-thirds vote was required. However, Respondent's principal challenge to the validi- ty of the affiliation relative to the allegations herein is that it assertedly created a break in the "continuity of representation." According to Respondent, the newly af- filiated union (Local 115), with different officers, a sub- stantially larger constituency of approximately 2500 members, and a different constitution and bylaws, consti- tuted a new and separate entity that no longer ensured the employees of the continuity of their bargaining repre- sentative. As such, and in reliance on Gulf Oil Corp., 135 to Marazzi testified without contradiction that on 26 December, he dis- cussed Lipman's grievance with the grievance committee of OVSC and they agreed with the Company's action. While the grievance was not processed further, the subject of Lipman 's discharge was incorporated in the unfair labor practice charges filed in January 1985 and subsequently alleged as a discriminatory discharge within the meaning of Sec. 8(aX3) and (1) of the Act As noted previously, certain of the allegations includ- ing Lipman's alleged discriminatory discharge were settled at the opening of the instant trial. 19 According to Wilson, the affiliation vote designating the Teamsters as the employees' bargaining representative , which he supported, was valid, even during contract negotiations in 1985 However, he asserted that he reluctantly participated in those negotiations because , inter alai, the Company refused to recognize the Teamsters 67 NLRB 184 (1962), and its progeny, Respondent denies that it was obligated to recognize and bargain with the Teamsters because the attempted affiliation, in the face of contract-bar principles (at best) prematurely raised a question concerning representation (QCR).20 Whether under Quemetco, relied on by the General Counsel, which involved a refusal-to-recognize allegation under Section 8(a)(5) of the Act, or Gulf Oil, relied on by Respondent, which involved a motion to amend a certification under Section 9(b) of the Act (see also 29 C.F.R. 102.60 (b)), the Board, in dealing with affiliations, basically considers the same factors. See Independent Drug Store Owners, 211 NLRB 701 fn. 2 (1974); Newspa- pers, Inc., 210 NLRB 8, 9 fns. 2 and 4 (1974). In either situation the newly affiliated organization is seeking the Board's imprimatur as the employees' collective-bargain- ing representative. Newspapers, supra at 10 fn. 13. The Quemetco approach perceives efforts to affiliate as essentially internal union matters so long as they allow for minimal due process "with respect to registering the desires of the employees." Quemetco, supra at 1399. Accord: Williamson Co., 244 t4LRB 953, 955 (1979); see generally New Orleans Public Service, 237 NLRB 919 (1978). Under Quemetco concepts, once the employees' desires have been registered favoring affiliation, the only "legitimate interest" an employer has in "continuity of representation" is that the newly affiliated organization honor all the contractual commitments of its predecessor (the original contracting labor organization). Quemetco, supra at 1399. On the other hand, in Gulf Oil, in which a majority of the employees of one local (Local 715) favored a merger with another local (Local 826) of the same International union and in which Local 826 expressed its willingness to honor the contractual responsibilities of Local 715, such factors were not enough to carry a motion to amend the certification. The Board rejected the motion stating as follows: [I]t appears that the changes contemplated by Local 715 are not simple administrative structural changes. There is no indication that the changes are designed to insure to the employees presently represented by Local 715 a continuity of representation. Rather it appears that the change would result in a complete loss of the identity of Local 715, and the substitution of a new and different local union as representative of the employees in the unit for which Local 715 was certified. From this, it is clear that the . . . motion constitute[s] an attempt to raise a question concern- 20 The Board's contract-bar rule generally precludes an election or a QCR from being raised for 3 years or the term of the contract , whichev- er is shorter General Cable Corp., 139 NLRB 1123 ( 1962). Respondent also devoted substantial attention to a trilogy of Third Circuit decisions, where, in each case the court refused to uphold the affiliation for a fail- ure to establish continuity of representation See United States Steel Corp. Y. NLRB, 457 F 2d 660 (3d Cir. 1972); NLRB v. Bernard Gloekler North East Co., 540 F.2d 197 (3d Cir. 1976); Sun Oil Ca of Pennsylvania v. NLRB, 576 F.2d 533 (3d Cir 1978) With due respect to the court, while I have carefully noted these cases, I am also mindful of the fact that I am bound by outstanding Board precedent unless the Supreme Court has de- cided the matter in question Iowa Beef Packers, 144 NLRB 615, 616 (1963) 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing representation .... The Act and the Board policy, however require that such matters be deter- mined through a petition and secret ballot of the employees concerned [pp. 184-185, emphasis added]. Thus, given the aforenoted Gulf Oil considerations, unlike the more limited standards expressed by the Board in Quemetco, an employer may legitimately and success- fully challenge the bargaining status of a merged or af- filiated organization where the identity of the absorbed or original contractual organization has been lost or suf- ficiently changed . This is so, even where, as a concomi- tant of such change, there is a willingness to continue to honor all contractual commitments . The employer in such circumstances may refuse to recognize the new or- ganization at least until it has timely established its ma- jority status in a Board-conducted election. Accord: In- dependent Drug Store Owners, supra (involving an em- ployer's refusal to recognize and bargain). However, while Gulf Oil considerations are still viable, Quemetco, which at times has been ignored, also has never been ex- pressly overruled.21 Basically, I find in agreement with the General Coun- sel that the instant case closely resembles the circum- stances presented in Quemetco. Thus, in both situations, inter alia, an independent labor organization, comprised solely of employees employed at a single facility, at- tempted to affiliate with the same International union, the Teamsters. Further, in both situations adequate notice was provided and all unit employees had an op- portunity to cast secret ballots with a result favoring af- filiation. Although the vote in favor of affiliation was unanimous in Quemetco; whereas, in the instant case, a majority voted to affiliate, the Board only requires that the proposed change be approved by a simple majority. See Williamson Co., supra at 955. Because in neither case were unit employees precluded from participating in the affiliation vote, the democratic voting procedures neces- sary to establish minimal due process were satisfied.22 See NLRB v. Newspapers, Inc., 515 F.2d 334, 339 (5th Cir. 1975); Insulfab Plastics, 274 NLRB 817, 822 (1985); Williamson Co., supra at 955 fn. 10. Cf. Jasper Seating Co., 231 NLRB 1025, 1026 (1977) (nonmembers were not provided an adequate opportunity to vote); Amoco IV, supra. 21 See generally Baldor Electric Ca, 258 NLRB 1325 (1981) The Board more recently has rejected the notion that affiliations are purely internal union matters Amoco Production Co., 262 NLRB 1240 (1982), affd. 721 F 2d 150 (5th Cir 1982) (Amoco IV) Amoco, however, is factu- ally distinguishable from Quemetco, as all unit employees were not per- mitted an opportunity to vote In any event the subject is not yet settled See NLRB Y Financial Institution Employees Local 1182) Seattle-First Na- tional Bank) Y NLRB, 752 F.2d 356 (9th Cir 1984), [affd. 475 U S 192 (1986)] 22 I reject Respondent's contention that the affiliation vote was defec- tive because it fell short of a two-thirds vote for any decision "to change or delete any part of the Constitution," as required by art XIX of the OVSC constitution. Strict adherence to the constitution is not a control- ling factor , where as here , all unit employees had an adequate opportuni- ty to express their desires in secret and a clear majority voted to affiliate See Newspapers, supra at 9 fn. 3, East Dayton Tool & Die Co, 190 NLRB 577, 579 (1971), see also Hamilton Tool Co., 190 NLRB 571, 574 fn 8 (1971) Having found that minimal due-process requirements were met, the remaining question vis-a-vis a valid affili- ation determination , is whether the change constituted a substantial break in the continuity of representation. Again, here, as well as in the Quemetco, the affiliated union clearly manifested its intention to honor all con- tractual commitments. As noted previously, inter alia, in Quemetco, the aforenoted factor is all that is necessary to satisfy this critical element. On the other hand, also as noted previously , a willingness to honor all contractual commitments falls short of satisfying the standards of Gulf Oil, and its progeny. Thus, the Board in treating "continuity," has taken into account such factors as whether the union has retained the same union leader- ship; whether it continues to administer the contract; and whether it has otherwise maintained autonomy over such matters as contract negotiations , strikes, and processing of grievances. Compare Hamilton Tool Co., 190 NLRB 571, 575 (1971) (affiliation upheld where the employer was informed that the officers would be the same), News- papers, supra (merger upheld where "the same people who had represented [the affected employees] prior to the merger continued to do so after the merger") with Independent Drug Store Owners, supra (merger not upheld where all the officers were different). See also J. Ray McDermott & Co. v. NLRB, 571 F.2d 850, 858 (5th Cir. 1978) (upheld where , inter alia, autonomy, dues struc- ture, and leadership remained unchanged); NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1111-1112 (1st Cir. 1975) (merger upheld , where, inter alia, the original local continued to negotiate contracts for the affected employ- ees as well as administer the collective-bargaining agree- ments to which it was a party), New Orleans Public Serv- ice, 237 NLRB at 921 (affiliation upheld where , inter alia, the affiliating local retained the right to negotiate its own collective-bargaining agreement and process its own grievances through the same elected individuals). Aside from noting that Quemetco involved a refusal-to- recognize-and-bargain allegation ; whereas, the underly- ing document in Gulf Oil was a motion to amend the certification (which difference for reasons noted previ- ously is not deemed material), the cases cannot really be reconciled . However, while neither case has been ex- pressly overruled, the overwhelming weight of Board and court decisions tend to either ignore Quemetco or favor the Gulf Oil approach. For example, more recent- ly, in Charlie Brown 's, 271 NLRB 378 (1984), the Board refused to certify a local union that won a Board-con- ducted election but that had its International organiza- tion impose a trusteeship on a part of the winning union. There the Board determined that the change was struc- tural and "raise[d] a question as to continuity of repre- sentation, requiring a showing that it reflects the employ- ees' desires." The Board, citing Newspapers Inc., 210 NLRB 8 (1974), stated that employees' desires in such cases is our "primary concern." As the employees' de- sires with regard to the disputed change were either ig- nored or had not been demonstrated , the Board, set aside the election and dismissed the petition . In effect, the Board treated employees' desires as a threshold matter stating : "We therefore do not discuss the other factors CHAS. S. WINNER, INC. that we would usually examine in determining continuity of representation." (Id. at fn. 4.)23 As examples of such factors the Board cited Montgomery Ward, 188 NLRB 551 (1971), Canton Sign Co., 174 NLRB 906, 908 (1969), and significantly Gulf Oil.24 Noting the foregoing, I am persuaded that the Board is not yet ready to abandon Gulf Oil considerations. As for Quemetco, it is noted that even where treated approving- ly, there are other factors in those cases tending to sup- port "continuity" over and above a commitment to honor contractual obligations such as the retention of union leadership and organizational autonomy. William- son Co., supra; New Orleans Public Service, supra. In Newspapers, Inc. (relied on so heavily by the Board in Quemetco), the Board there noted that the "same people" continued to represent the affected employees and, in pertinent part, added as follows: This factor, that the employees involved are assured the continuity of their present organization and repre- sentation, has been deemed of primary importance. . . . See The Hamilton Tool Co., 190 NLRB 571, Gulf Oil Corporation, 135 NLRB 184 [210 NLRB 8, 9, fn. 2, emphasis added]. Thus, while in order to establish minimal due process in affiliation-type cases, it is of primary importance to register employees' desires, the continuity principles (as noted above) have also been deemed to be of "primary importance." It is this latter element, where I find little or no support for the Quemetco approach. 25 I am there- fore unpersuaded that reliance thereon, as urged by the General Counsel, is warranted. It follows then that the General Counsel has failed to satisfy the continuity prin- ciples by merely showing that the Teamsters had com- mitted itself to honor all contractual obligations. Aside from the aforenoted factor, there is a dearth of evidence supporting this critical element. Indeed, if the affiliation were permitted to stand, it would have effectively oblit- erated all traces of the OVSC. The organization's funds and assets would have been commingled with the affili- ated Teamsters, the OVSC leadership would have been fully replaced by Teamsters officers, and the OVSC union affairs would have been governed in accordance with the Teamsters' constitution and bylaws. As such, the Teamsters, for bargaining purposes, do not qualify as a successor organization, but rather constitutes a new 23 This two-tier approach is not confined to Charlie Brown's See, e.g, Port Chester Nursing Home, 269 NLRB 150 fn 2 (1984), F W Woolworth Co., 268 NLRB 805, 806 In 6 (1984), Amoco IV, supra 24 Although both Montgomery Ward and Canton Sign represent cases in which the changes in question were validated, those cases are factually distinguishable from Quemetco In Montgomery Ward, inter alts, the same business agent continued to service the affected employees In Canton Sign , inter alia, the employer first recognized and then declined to further recognize and bargain with the so-called successor union 25 As pointed out by Respondent in its brief, even the Ninth Circuit in Financial Institution Employees Y NLRB, 752 F 2d 356 (1984), called into question the Board's Amoco IV approach (that affiliation procedures are not merely internal union matters), it is noteworthy that the court went to great lengths to define and explain the continuity of representation tests in terms consistent with the non-Quemetco cases. 69 and different union.26 Given the contract-bar principles referred to previously (see fn. 20, supra), the Respondent was not under any obligation to deal with the Teamsters. Accordingly, I find that the Respondent did not un- lawfully refuse to recognize and bargain with the Team- sters in violation of Section 8(a)(5) and (1) of the Act and I shall recommend that this allegation be dis- missed.2 7 2. The 8(a)(2) allegations These allegations are largely predicated on the premise that the purported affiliation was valid. The OVSC had transferred its treasury and assets to the Teamsters and Respondent had stopped deducting OVSC dues from its employees' paychecks. The Teamsters, assertedly, had become the successor to OVCS's representational and contractual rights. The OVSC, assertedly, had become defunct. According to the General Counsel, the Re- spondent, by making it known that it would deal only with the OVSC, thereby coercively conveyed to its em- ployees the futility of their continued support for the Teamsters. As such, it is contended that the Respondent unlawfully induced employees to abandon the Teamsters and, correspondingly, after a 5-week hiatus, it also un- lawfully contributed to the resurrection of the OVSC. According to the General Counsel, the "new OVSC" as reconstituted, after the 5-week hiatus, was a separate labor organization different from its predecessor of the same name. Other 8(a)(2) allegations involve Respondent's state- ments, acts, and conduct in dealing with and favoring the "new OVSC" over the Teamsters. These include the resumption of dues deductions on October 16, the proc- essing of Lipman's discharge grievance in December, and executing a new collective-bargaining agreement with the OVSC on March 27, 1985. In rejecting these allegations, I rely principally on my earlier finding that the purported affiliation was invalid for bargaining purposes. Thus, the General Counsel's premise is faulty. Given the finding that the affiliated Teamsters did not constitute a "successor" organization, and noting that the Teamsters prematurely demanded representational rights in the face of an outstanding col- lective-bargaining agreement (contract-bar principles, fn. 20 supra), the Respondent's bargaining obligation ex- tended only to the contractual party, the OVSC. See NLRB v. Marcus Trucking Co., 286 F.2d 583, 593 (2d Cir. 1961); Westwood Import Co., 251 NLRB 1213, 1214 (1980); Universal Tool & Stamping Co., 182 NLRB 254, 259 (1970). If, however, the OVSC had effectively dis- 26 I am unpersuaded that the successors and assigns provision, as urged by the General Counsel, without more, contemplates the affiliation of the OVSC with another union, particularly , as the changes herein were not merely technical but would have resulted in a complete loss of identity of the OVSC. 27 As the instant case involved representation case issues, I have re- jected Respondent's collateral estoppel defense (fn 17 supra) See, e.g., Port Chester Nursing Home, supra, fn. 3 I also reject Respondent's con- tention that it had a good-faith doubt regarding the Teamsters majority on the basis that the employees had repudiated that organization The record disclosed that the employees repudiated the Teamsters only after the Respondent made it clear that it would only deal with the OVSC 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD solved itself, as contended by the General Counsel, or if a schism was involved, such would have relieved Re- spondent from its bargaining obligations and raised a question concerning representation to be resolved at a Board election. See Hershey Chocolate Corp., 121 NLRB 901, 911 (1958); Universal Tools, supra. The General Counsel makes much of the 5-week hiatus (from the May 11 affiliation vote to Respondent's meeting with the OVSC liaison committee about 21 June), in contending that the OVSC resurfaced as a new and different organi- zation. On the total state of evidence before me, I cannot agree. It has long been noted that "mere temporary inability to function does not constitute defunctness." Hershey Chocolate Corp., supra at 911. See also Harbor Carriers of the Port of N. Y. v. NLRB, 306 F.2d 89, 94 (2d Cir. 1962) (old organization deemed viable notwithstanding the de- fection of officers and the seizure of assets to the new or- ganization). It is not surprising that the OVSC engaged in little or no formal union activity in the brief 5-week period following the affiliation vote because serious and legitimate questions were raised by the employer regard- ing the identity of the bargaining representative. See Uni- versal Tools, supra at 260. The employer's action in by- passing the Teamsters and favoring the OVSC during this period of confusion and uncertainty appears vindi- cated given the finding that the Teamsters did not repre- sent an organizational continuation of the OVSC, but rather a separate and different union.28 After all, the OVSC was the contracting party, the incumbent union. As noted by the Board in RCA Del Caribe, 262 NLRB 963, 965 (1982), "unlike initial organizing situations, an employer in an existing collective-bargaining relationship cannot observe strict neutrality." This somewhat exalted position for an incumbent union is deemed to be in the interest of "industrial stability" and consistent with the purposes of the Act. In the instant case, affiliation was opposed by a sub- stantial minority, approximately 40 percent of the unit. Moreover, while the Employer stopped deducting OVSC dues from employees' paychecks shortly after the affiliation, there is no evidence tending to show that any OVSC member or unit employee requested this action. Further, given the rejection of the affiliation herein, it would appear that the OVSC constitution and bylaws re- mained intact. As for the attempted dissolution of the OVSC after the affiliation vote, this too must be assessed in an appropriate context. For example, as the Teamsters had no contractual standing as a successor or otherwise, the OVSC remained the contracting party. The employ- ees clearly recognized the viability of that collective-bar- gaining agreement by filing a grievance thereunder, albeit, the document manifested support for the Team- sters (Jt. Exh. 9). It is also noted that none of the OVSC officers formally resigned after the affiliation or at any time during the hiatus period. They, as well as the OVSC liaison committee were accessible and amenable 28 As noted previously, Attorney SuJlas, by letter dated May 29, noti- fied the Teamsters that it deemed the affiliation ineffective because, inter alia, it "represent[ed] a break in the continuity of representation," (Jt Exh. 8) to discuss unit problems and to administer the contract. This in fact was done commencing about June 21, after the brief 5-week hiatus. Under all the foregoing circum- stances, I cannot find that OVSC became defunct or dis- appeared . Rather, after a temporary interlude , when it became clear that Respondent would not deal with the Teamsters (a legitimate position in the circumstances herein), the OVSC resumed its active role as the exclu- sive collective-bargaining representative. As the incumbency remained viable, the Respondent was obligated under the Act, and consistent with con- tract-bar principles, to continue to recognize and bargain with the OVSC. In this regard, I find, inter alia, that the Respondent properly dealt with the OVSC rather than the Teamsters over such matters as Lipman's discharge grievance. As for the resumption of dues deductions, it is noted that the then outstanding collective-bargaining agreement provided for the deduction of dues from the wages of all salesmen who had provided written authorization. (Jt. Exh. 3, p. 2.) As noted previously, the record is devoid of any evidence tending to show that any unit employee withdrew that authorization. As the General Counsel's contention is based on the faulty premise that the Team- sters were then the exclusive bargaining agent rather than the OVSC, I find that this allegation is without merit. The General Counsel contends, for essentially the same reason, that Respondent unlawfully executed the new collective-bargaining agreement on March 27, 1985. In the absence of having the May 11 affiliation vote upheld, the Teamsters did not have any standing at the time the new agreement was negotiated and executed. The Teamsters' support was dated and not cognizable having come at a time when the old contract still had some 9 months to run and no question concerning repre- sentation could be raised. There was no evidence of fresh or timely support for the Teamsters such as new authorization cards. In these circumstances, I find that the disputed collective-bargaining agreement was lawful- ly executed at a time when the Teamsters' interest did not comprise a substantial rival claim and raise a question concerning representation. In short, I find all the 8(a)(2) allegations to be without merit and I shall recommend that these allegations be dismissed in their entirety. 3. The 8(a)(1) allegations The record disclosed that on 11 July, Hynansky told his entire sales force that he was receptive to improving the house deal, phone-up program, and pension plan but only in a setting free of Teamsters interference. Hyn- ansky also informed his employees on that occasion that he would only recognize and bargain with the OVSC and not the Teamsters. I find, contrary to the General Counsel, that Hynansky's statements, in the circum- stances of this case, did not constitute violations of Sec- tion 8(a)(1). Although Hynansky indicated a willingness on the oc- casion in question to improve the house deal and phone- up programs and pension plan, the record disclosed that these matters had been under discussion for months and CHAS. S. WINNER. INC. 71 before the advent of the Teamsters. In any event, con- trary to the General Counsel, I have already found that the Teamsters did not have any representative standing vis-a-vis the unit employees at the time in question or at any time material herein. As Respondent was not then le- gally obligated to bargain with the Teamsters, the Gen- eral Counsel's assertion that Respondent unlawfully by- passed the Teamsters cannot be maintained. Similarly, I cannot find that Hynansky unlawfully con- veyed to employees that it would be futile for them to support the Teamsters because Respondent would only deal with the OVSC. As I have previously rejected the attempted affiliation, the Teamsters did not become a successor to the OVSC for bargaining purposes . Neither the Respondent nor the OVSC ever repudiated the col- lective-bargaining agreement. Given the contract-bar principles discussed previously, the Teamsters could not then raise a QCR or a cognizable rival claim . In these circumstances, Hynansky was free to communicate the Company's legal position that it would only bargain with the OVSC. In short, I find that the Respondent, by Hyn- ansky's statements, did not violate Section 8(axl) as al- leged. Additionally, certain statements were ascribed to Gen- eral Manager Marazzi, that he conveyed to employees that it was futile for them to continue to support the Teamsters. In support thereof, the General Counsel relied principally on the testimony of Edward Lipman, a former employee. In this regard, Lipman testified that Marazzi told him on two occasions that "the cards were stacked against" employees supporting the Teamsters and that they could "never win." Further, Lipman testified that on the second of these occasions Marazzi warned him that the owners would go to any length and if need be, sell the business in order to keep the Teamsters out. Marazzi, on the other hand, admitted only that he would not deal with the Teamsters on the advice of counsel and conveyed this position to employees includ- ing Lipman. He denied making the other statements as- cribed to him by Lipman. As noted above (Hynansky discussion), because the Teamsters were not a successor organization and could not raise a QCR at the time of Marazzi's remarks, I find that Marazzi could lawfully refuse to deal with the Teamsters and advise the employees of this position. With regard to the other remarks ascribed to Marazzi, they are disputed and rest solely on credibility. I credit Marazzi's denials over Lipman's assertions. In doing so, I rely on demeanor as well as certain question- able actions taken by Lipman tending to cast doubt on the reliability of his testimony. For example, the record disclosed that Lipman joined nearly all the other em- ployees in signing a document withdrawing an earlier grievance over Respondent's refusal to recognize the Teamsters (Jt. Exh. 11). According to Lipman, he signed this document without reading it or knowing what was contained thereon. Although Lipman characterized this action as a "mistake," this does little to dispel a percep- tion of duplicity on his part. Thus I view with suspicion Lipman's later accession to the presidency of the OVSC. According to Lipman, he accepted the position so that he could turn over the reigns of the OVSC to the Team- sters. It appears to me that, however, Lipman was play- ing both ends against the middle in order to extract from the Company a more favorable offer for the new collec- tive-bargaining agreement. Thus, I credit Marazzi's un- controverted testimony that Lipman told him at a meet- ing on 9 November that if he were happy with the up- coming negotiations, he would recommend that the em- ployees support the OVSC, but, if not, he would recom- mend that they support the Teamsters. In these circumstances, I am unpersuaded that the General Counsel has established by credible evidence that Marazzi made the threats ascribed to him by Lipman, or that he otherwise violated Section 8(axl) of the Act. Accordingly, I shall recommend that these alle- gations be dismissed. Still further, it is contended that General Sales Manag- er Cusato conveyed the impression to Lipman that the employees' activities in support of the Teamsters were under surveillance by Respondent. Lipman testified that at a meeting with Cusato in July at the Shepherd's Inn, the latter tried to dissuade him from supporting the Teamsters and referred to a "hit list" maintained by the Company of employees suspected of supporting the Teamsters. Further, Lipman testified that Cusato told him that the Company knew the identity of the employ- ees who voted for the Teamsters in the affiliation elec- tion and that the Company had a tape of an April meet- ing where OVSC members discussed whether to search for an outside union. According to Lipman, while he did not believe Cusato at first, the latter proceeded to recite almost word for word what was stated at that April meeting. As noted previously, Cusato provided a vastly differ- ent account. Aside from Cusato's denials regarding Lip- man's main assertions, the former testified that it was Lipman (not Cusato) who introduced the subject of the tapes by asking Cusato whether he knew anything about it. Cusato testified that Lipman told him that employee Ed Stasny had a tape recorder at one of the meetings. According to Cusato, he had no knowledge of any "hit list" or tapes and conveyed that to Lipman. I credit Cusato over Lipman in all material respects where their testimony is in conflict. As noted above in discussing the allegations relative to Marazzi, I found Lipman's testimony unreliable in material respects. On the other hand, I found Cusato to be responsive, forth- right, and impressive. It is noted for example that Cusato did deny that the meeting in question took place or that the subject of tapes had come up. As Lipman had en- gaged in some questionable actions bordering on duplici- ty (noted previously), I find Cusato's account more likely, to wit, that Lipman introduced the subject of the tapes at the meeting. In crediting Cusato, it is also noted that the occasion in question was a chance meeting, and there is no other evidence linking Cusato with state- ments, acts, or conduct in violation of Section 8(a)(1). In these circumstances, I shall recommend that all allega- tions relative to Cusato also be dismissed as not support- ed by credible evidence. 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW On these findings of fact and conclusions of law and 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The OVSC and Teamsters are and have been, at all times material, labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent did not engage in the unfair labor practices alleged in the complaint, as amended. on the entire record, I issue the following recommend- ed29 ORDER The complaint, as amended, is dismissed in its entirety. 29 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.