Pittsburgh & New England Trucking Co.

PITTSBURGH AND NEW ENGLAND TRUCKING 833 Pittsburgh and New England Trucking Co. and In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Teamsters' Steel Haulers Local Union No. 800. Case 6-CA-10187 May 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 19, 1980, Administrative Law Judge Robert A. Giannasi issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. In affirming the Administrative Law Judge's conclusion that Respondent's unremedied unfair labor practices precluded it from lawfully with- drawing recognition from the Union, we do not adopt any implication in his Decision that Re- spondent in fact implemented its threatened super- seniority plan. Rather, we rely particularly on the threats themselves as the type of unfair labor prac- tices which, in the circumstances of this case, would tend to cause employee disaffection from the Union. The following findings are derived from the Board's Decision in a prior proceeding which was, in pertinent part, enforced by the United States Court of Appeals for the Fourth Circuit:3 The first threat of superseniority was made on August 31, 1976, in a letter to all striking employees. The letter urged the employees to return to work im- mediately, went on to state that replacements would be hired, and threatened that these replace- ments' seniority would be superior to that of the returning strikers. All striking employees were sub- ject to a second unfair labor practice on October 29, 1976, when Respondent threatened in a letter i The Adninistrative Law Judge, in sec Ii. 11, par 6, of his Decisiol., inadvertentll referred to the employee petition presented to Respondent by employee Claire Sadler as having the signatures of 17 employees Only of the signatures belong to employees in the unit as stipulated by the parties 2 Fi l wiwlorth Company, 90 NLRB 289 (1950), cited by the Ad- minlistrative Las Judge in the section entitled "The Remedy" is inappli- cable in this case See Ogle Prolection Servicett, Inc. 183 NLRB 682 (1970) " 238 NLRB 170)6 (1978), enfd ill perlinent part Docket No 78 1781 (4th Cir. 1979). 249 NLRB No. 104 that employment opportunities of recalled strikers would be prejudiced by their failure to abide by Respondent's prescribed deadlines for reporting to work. The strike continued until November 29, 1976. On December 1 and again on December 7, 1976, concerned employees questioned Respondent's chief representative, James Porterfield, about the meaning of the superseniority threat in the August letter. Porterfield reaffirmed the threat, stating that returning strikers would retain all the benefits they had previously held but, in the event of layoff, the strikers would be the first to go. (238 NLRB 1683 (1978.) On December 10, 1976, one of the employ- ees who questioned Porterfield filed an amended charge alleging that on August 31, 1976, Respond- ent discriminated with respect to the seniority of striking employees. A threat of loss of employment, whether through plant closure, discharge, or layoff, is one of the most flagrant means by which an employer can hope to dissuade employees from supporting a union. And, "the specter of job loss . . . once con- jured up is not easily interred." El Rancho Market, 235 NLRB 468, 476 (1978), enfd. 603 F.2d 223 (9th Cir. 1979). The facts of this case demonstrate the continued concern the employees felt about the po- tential loss of employment in that they specifically asked Respondent's representative the meaning of the superseniority threat over 3 months after it was made, and, once Respondent's intentions were ex- plained, employees immediately sought legal pro- tection. Furthermore, a threat continues in effect until it is retracted.4 The above threats of discrimi- nation had not been neutralized by Respondent at the time it withdrew recognition from the Union. In addition, a finding that Respondent's threats re- mained viable is particularly compelling here be- cause, so far as the record shows, at the time Re- spondent withdrew recognition no layoffs had oc- curred to test Respondent's intentions. Thus, the occasion had not arisen to determine whether the threatened superseniority plan would in fact be im- plemented and employees would have every reason to fear that their employment status could still be adversely affected at some future time. Under these circumstances, we must agree with the Administrative Law Judge's findings that Re- . For ex;ample, the Board ha, recognized tha a lllion's rcquest to dis charge an employee in violationl of Sec 8bh)(2) clituer until the union formally niotifies both the mploher and the employee of the ithdrassal of that request PAn and Pincii/ Wtorkers 'niit. I.oita/ 19393. .4i . t'Pra r Pen Compatnv), 91 NLRB I 8. 889 (195() See also Pa',avant .lftoriul Atrea Hospital 237 NLRB 138 (1978), and cases cited Iherelm. hlding that the Board will issue a remedial order for ulavfitl threats unless the re spondent can show that it has sulfltcilltly repudiated lthe threats In light of his positionl i Pasas ant. 'hairman I-anning inould ai j)rittl agree with this propositiorl 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's violations are serious, that "they are of the type that linger," and that unremedied they "left the employees with the impression that the Respondent could, with impunity, retaliate against union supporters and reward those who refused to support the Union." Accordingly, we adopt his conclusion that Respondent violated Section 8(a)(5) by withdrawing recognition from the Union. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Pittsburgh and New England Trucking Co., Dravosburg, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. DECISION STATEMENT OF THE CASE ROBERT A. GIANNAsI, Administrative Law Judge: This case was heard on September 24, 1979, in Pitts- burgh, Pennsylvania. The complaint alleges that Pitts- burgh and New England Trucking Co., hereinafter Re- spondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to be bound by a collective-bargaining agreement which had been previously agreed upon and by withdrawing recog- nition from the Charging Party Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Steel Haulers Local Union No. 800 (hereinafter the Union), which had been certified by the Board as bargaining representative of its employees. Respondent denied the essential allegations in the complaint. The parties initially elected not to file briefs. Subsequently, after an intervening and related court decision, the parties filed briefs, which were re- ceived on January 30, 1980. Upon the entire record, including the testimony of the witnesses and my observation of their demeanor, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Pennsylvania corporation with its prin- cipal office located in Dravosburg, Pennsylvania, is en- gaged in the contract hauling of goods by truck. During the 12 months immediately preceding the issuance of the complaint, Respondent derived income in excess of $50,000 from the interstate transportation of goods and materials. Accordingly, I find, as Respondent admits, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. I1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background On September 26, 1977, Administrative Law Judge Joel A. Harmatz issued a Decision finding that Respond- ent had committed certain unfair labor practices during a strike by the Union in the summer and fall of 1976. The Union, which was certified by the Board as the employ- ees' collective-bargaining representative on May 14, 1976, had been bargaining with Respondent. Administra- tive Law Judge Harmatz also dismissed other allegations of unfair labor practices against Respondent. More spe- cifically, Administrative Law Judge Harmatz found that Respondent violated Section 8(a)(1) of the Act by in- forming striking employees, in separate letters-one dated August 31, 1976, and the other October 29, 1976- and by statements by Respondent's attorney and chief negotiator, James Porterfield, at bargaining sessions on December I and 7, 1976, that "after their return to work replacements would have seniority superior to theirs, and . . that their right to recall would be prejudiced if they did not abandon the strike and return to work." (238 NLRB 1706 (1978)).' On September 29, 1978, the Board affirmed the find- ings set forth above, but reversed Judge Harmatz in part, finding additional violations of the Act, including viola- tions of Section 8(a)(5) and (1) of the Act with respect to some of Respondent's conduct in its bargaining with the Union. On December 4, 1979, the United States Court of Ap- peals for the Fourth Circuit granted enforcement to that portion of the Board's order dealing with findings, which it affirmed, that Respondent violated Section 8(a)(1) of the Act as set forth in Administrative Law Judge Har- matz' Decision. Pittsburgh & New England Trucking Co. v. N.L.R.B., 612 F.2d 1309. The court refused to enforce the additional findings of the Board wherein it reversed Administrative Law Judge Harmatz. The court ordered that Respondent post a notice and cease and desist from engaging in the conduct found to be unlawful. After issuance of the Fourth Circuit's decision, I wrote the parties asking them to consider the impact of the de- cision on the instant case. Thereafter, the parties submit- ted briefs asking for a resolution of the issues presented herein. The complaint in the instant case, which was issued on December 21, 1978, alleges that Respondent violated the Act by refusing to bargain with the Union by withdraw- ing recognition from it and also by refusing to sign an agreed-upon contract encompassing its last offer. After filing its answer, Respondent moved the Board for sum- mary judgment dismissing the complaint on the grounds that the complaint was issued without a jurisdictional basis in a proper charge under Section 10(b) of the Act, and that it was duplicative in view of the prior litigation. The original charge in the instant case was filed on May I The hearing before Judge Harmatz took place in March 1977. PITTSBURGH AND NEW ENGLAND TRUCKING 835 3, 1977, and it alleged a violation of Section 8(a)(5) and (1) of the Act by virtue of Respondent's refusal to bar- gain "collectively and in good faith" since "on or about December 5, 1976, and at all times thereafter." Respond- ent also asked for postponement of the hearing sine die pending disposition of its petition to review the prior Board decision. The Board denied the Motion for Sum- mary Judgment by order dated June 1, 1979, because it concluded that the complaint "raises issues of fact and law which must be resolved at a hearing and . . . Re- spondent's motion fails to present an adequate basis for summary judgment." B. The Facts Surrounding the Refusal To Bargain Allegation As set forth in greater detail in the Board's decision in Case 6-CA-9714 (reported at 238 NLRB 1706), Re- spondent and the Union began bargaining after the Union's certification on May 14, 1976. The Board elec- tion, won by the Union, was held on March 4, 1976. The negotiations commenced on July 30, 1976. On August 30, 1976, the employees struck. Thereafter, by letters to all employees, one dated August 31, 1976, and another Oc- tober 29, 1976, and by statements made by an agent of Respondent at bargaining sessions on December I and 7, 1976, Respondent violated the Act as found by the Board and enforced by the Fourth Circuit. The strike concluded on November 29, 1976, when the Union re- quested reinstatement for all the strikers. Respondent re- fused, stating that no work was available due to the hire of permanent replacements, but expressing the view that strikers would be recalled as work became available. Of the 13 clericals who participated in the strike, 3 were re- called by the time of the March 1977 hearing. (238 NLRB 1706.) On May 17, 1977, the date Respondent withdrew recognition from the Union, there were 18 em- ployees in the unit. This figure included 8 of the original employees-those employed at the time of the Board election in March 1976-and 10 replacements. There were also 10 strikers who had not yet been recalled, and Respondent had not yet offered them reinstatement. There is no dispute that the appropriate unit in this case includes all office clerical employees employed by Re- spondent at its Dravosburg, Pennsylvania, facility and excludes "all truckdrivers and guards, professional em- ployees, and supervisors as defined in the Act." From the beginning of negotiations through May 14, 1977, Respondent and the Union exchanged contract proposals and counterproposals. They met some 27 times in negotiating sessions. The chief union spokesperson was Union President Robert Todd. The chief spokesperson for Respondent was House Counsel James. D. Porter- field. By May 14, 1977, the parties had made substantial progress towards a final agreement, and it is not con- tended that Respondent bargained in bad faith at any time prior to May 17, 1977, when Respondent withdrew recognition from the Union. In October 1976, Respondent submitted a written con- tract proposal called the "Fourth Proposal," which in- cluded a full panoply of rights, wages, benefits, and other typical provisions of a bargaining agreement. The proposal was a comprehensive and integrated document which included items such as recognition, management rights, union security, grievances and arbitration, disci- pline and discharge, rates of pay, hours of work, over- time, holidays, vacations, leaves of absence, and senior- ity. Although the Union did not accept this proposal and the parties continued to bargain, the October 1976 pro- posal had not been withdrawn and was still pending on May 17, 1977. In a letter to Union President Todd dated March 18, 1977, Respondent's counsel, Porterfield, reviewed the Union's latest proposals and went on to state Respond- ent's position as follows: Subject to the December 26, 1976, increase, the Company (1) reproposes its offered across-board in- creases of $.25/ S.25/ $.30; (2) reproposes Section 5 Union Membership & Checkoff as set forth in its Fourth Proposal; (3) agrees, tentatively, to match, for profit-sharing purposes, a contribution by the bargaining unit people of 2% of their gross wage; (4) proposes the following rates for jobs shown in Classification IV-$2.75/ 3.00/ $3.30, and (5) re- quests specification of proposed changes in Section 6. The October 1976 proposal concerning "Health, Wel- fare, and Profit Sharing" was blank. Apparently, Re- spondent did have a profit-sharing plan in existence, but the parties had not agreed to anything in these areas. The proposal did state that it was to become effective when signed, but did not specify a termination date, al- though the Appendix dealing with wage increase for em- ployees in a number of job classifications made it clear that a 3-year term was intended. The Union had pressed for a 2-year term. On May 9, 1977, employee Claire Sadler presented Re- spondent with a petition, signed by 17 employees, stating "Teamster Local 800 no longer represents us." Subse- quently, Sadler filed with the Board two decertification petitions, the first dated May 16, 1977, and the Board's Regional Director dismissed them, in accordance with traditional election case principles, because of the pend- ency of unfair labor practice charges. On May 17, 1977, the Union and Respondent met for what would be their last bargaining session. There is a dispute between union witnesses and witnesses for Re- spondent as to exactly when, in the course of this meet- ing, Respondent withdrew recognition. In view of my disposition of this case, I do not resolve this dispute. It is clear, however, that Porterfield, speaking for Respond- ent, withdrew recognition of the Union based on the em- ployee petition described above. Porterfield testified that at the May 17 meeting he told the union representatives that "a decertification petition had been filed and for that and other good reasons I doubted that the Union repre- sented a majority of the employees and therefore that the Company intended to suspend negotiations and withdraw proposals." It is also clear that at some point during the meeting Todd stated that he accepted Respondent's pending contract proposal "word for word from front to back." The parties also discussed the question whether 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking employees had to resign as employees before ob- taining a portion of their profit-sharing account. On May 18, 1977, the Union reiterated its acceptance of Respondent's final proposal, including [Respondent's] most recently offered wage increase," and asked that it be drawn up for proper execution. On May 24, 1977, Re- spondent in effect rejected the Union's request, stating as a reason only its withdrawal of recognition based on its belief that the Union did not represent a majority of the employees. C. Discussion and Analysis 1. The withdrawal of recognition Respondent defends its withdrawal of recognition by asserting a good-faith doubt of the Union's majority on May 17, 1977. Respondent relies essentially on the an- tiunion petition described above, which ripened into a decertification petition. When he withdrew recognition, Respondent's agent, Porterfield, mentioned only the ex- istence of the petition. He did not mention any other reason for withdrawing recognition. The General Counsel asserts that Respondent's reli- ance on the antiunion petition and its withdrawal of rec- ognition were not sufficient to defeat its bargaining obli- gation because of the unremedied and serious unfair labor practices it committed in late 1976. 1 agree. In order to ensure the stability of established bargain- ing relationships and to prevent recurring interference with industrial peace, the Board and courts have strictly defined the circumstances under which an employer may lawfully withdraw recognition from a formally certified bargaining agent. Thus, it has long been established that, during the first year following such certification, when the employees' collective rights must be allowed a "rea- sonable" opportuntiy to mature, the union's representa- tive status will be irrebuttably presumed to continue; absent special circumstances-beyond mere proof of loss of majority-a refusal to bargain with the union would be violative of the Act. Ray Brooks v. N.L.R.B., 348 U.S. 96, 98-104 (1954). Upon expiration of the certification year, an employer may withdraw recognition from the union without violating Section 8(a)(5) and (1) of the Act by rebutting the presumption of the union's continu- ing majority status or by demonstrating that the with- drawal was predicated upon a reasonable grounded good-faith doubt of the union's majority support. The burden of proof on these matters falls upon the employ- er. See Celanese Corporation of America, 95 NLRB 664, 672 (1951), cited with approval in Ray Brooks v. N.L.R.B., 348 U.S. at 104, fn. 18; N.L.R.B. v. Gulfmnont Hotel Company , 362 F.2d 588, 589 (5th Cir. 1966); Ter- rell Machine Company v. N.L.R.B. , 427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied, 398 U.S. 929. It is equally well settled that an employer may not avoid his duty to bargain by relying upon any loss of majority status attributable to his own unfair labor prac- tices. Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 704-705 (1944); Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 687 (1944). Thus, it is clear that prior unremedied unfair labor practices remove as a lawful basis for an employer's wihdrawal of recognition the existence of a decertification petition or any other evidence of loss of union support which, in other cir- cumstances, might be considered as providing objective considerations demonstrating a free and voluntary choice on the part of employees to withdraw their support of a labor organization. See Ponn Distributing, Inc., 232 NLRB 312, 315 (1977); King Radio Corporation, 208 NLRB 578, 579 (1974), enfd. 510 F.2d 1154 (10th Cir. 1975); Olson Bodies, Inc., 206 NLRB 779, 780 (1973). As the Board has stated: Serious unremedied unfair labor practices . . . tend to produce disaffections from a union and thus remove as a lawful basis for an employer's with- drawal of recognition the existence of a decertifica- tion petition or any evidence of loss of union sup- port which, in other circumstances, might be con- sidered as providing objective considerations dem- onstrating a free and voluntary choice on the part of employees to withdraw their support of a labor organization. [Olson Bodies, 206 NLRB at 780.] It has been established that Respondent committed violations of the Act on several occasions in the latter part of 1976. First, in an August 31 letter to all strikers, Respondent threatened that "after the striked ended and the strikers were back on the job, replacements would have superior retention rights to that of the strikers" (238 NLRB 1706). This threat was not withdrawn prior to the Union's offer to end the strike. Indeed, Respondent's chief negotiator, Porterfield, was found to have given credence to the threat in two December 1976 bargaining sessions ibid.). Further, in another letter to striking em- ployees, dated October 29, Respondent violated the Act by threatening that the "employment opportunities of re- called strikers would be prejudiced by their failure to abide by the Company's prescribed deadlines for report- ing to work" (Id.). These findings, made by Administra- tive Law Judge Harmatz, were affirmed by the Board and enforced by the Fourth Circuit. There can be no doubt that the conduct of Respondent set forth above "tend[ed] to produce disaffections from [the] union and thus remove[d] as a lawful basis for [Re- spondent's] withdrawal of recognition the existence of a decertification petition." (Olson Bodies, Inc., supra.) As the Supreme Court has stated in N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 380 (1967), the failure fully to reinstate economic strikers is "destructive of im- portant employer rights"-namely, the right to strike without retribution. In the instant case, the threats were serious unfair labor practices which affected all the unit employees. The threats against the strikers were never neutralized, and replacements were hired-apparently in accordance with the August and October 1976 letters. The strike was indeed called off and some strikers re- turned to work. It cannot be gainsaid that striking em- ployees would be coerced by statements that they would have less retention rights and job opportunities than their nonstriking replacements. By the same token those re- placements would be discouraged from making common cause with the strikers by the fact that, by refraining from supporting the Union, they would get superior re- PITTSBURGH AND NEW ENGI.AND TRUCKING 837 tention rights and enhance job opportunities. Is it any surprise then that the employees as of May 1977-wheth- er they be replacements or returning strikers-signed an antiunion petition? Respondent's violations go to the very heart of the Act and they are of the type that linger. Unremedied, these violations left the employees with the impression that Respondent could, with impuni- ty, retaliate against union supporters and reward those who refused to support the Union. Moreover, it is obvi- ous that by May 17 the contours of a collective-bargain- ing agreement were at least clearly visible. To rely on antiunion sentiment created in such an atmosphere-at a time when the parties were close to final agreement- would run counter to the purposes of the Act, which in- clude both the right to engage in protected activity and the encouragement of stable bargaining relationships. In these circumstances, I find that Respondent's with- drawal of recognition of the Union on May 17, 1977, was a refusal to bargain in violation of Section 8(a)(5) and (I) of the Act.' 2. The Heinz violation' It is well settled that an employer who fails to reduce to writing, sign, or apply an oral agreement reached with the bargaining representative of his employees violates Section 8(a)(5) and (1) of the Act. H. J. Heinz Company v. N.L.R.B., 311 U.S. 514 (1941); Maury's Fluorescent & Appliance Service, 226 NLRB 1290 (1976). The question in such cases does not turn on the good faith or subjec- tive views-often inspired by self-serving motives-of the parties. Rather, it turns on whether the objective facts and circumstances show that there has been an agreement on the terms of a collective-bargaining agree- ment. See Mount Airy Foundation d/b/a Mount Airy Psy- chiatric Center, 230 NLRB 668, 677-678 (1977); Worrell Newspapers Inc., 232 NLRB 402, 406-407 (1977). I find that the parties herein reached agreement on May 17, 1977, when Union President Todd accepted, in total, Respondent's last contract proposal. Thus, when, on May 24, 1977, Respondent refused the Union's May 18, 1977, request that this proposal be put in writing an executed by the parties, Respondent committed an addi- tional violation of the Act. It is undisputed that a fully integrated contract proposal-Respondent's Proposal 4- was on the table at the begining of the meeting on May 17, 1977. The evidence clearly indicates-even accepting the testimony of Respondent's negotiator, Porterfield- that the only reason that Respondent withdrew its last contract proposal was that it withdrew recognition from 2 There was vague testimony from Porterfield that after Administra- tive Law Judge Harmatz Decision Respondent posted the notice at- tached to his Decision for 60 days beginning in October 1977 If Re- spondent means to suggest by reference to this testimony that the unfair labor practices found in the Harmat, Decision were remedied or neutral- ized I reject the suggestion. Porterfield's estimon was vague and un- corroborated There was no suggestion that the posting was accom- plished in conjunction with the Board's Regional Office More important- ly, howev',er. the alleged posting was riot significant because it took place in October 1977 5 months after the withdrawal of recognition. It is clear that there was no ntice posting Board approved or othervise, as of May 17. 1977. when Respondent v,'ithdre's recognition a The parties did rnot brief this point. but the General Counsel. in summary section of his brief, asks fr a rernedy with respect to this alle- gation of the complaint the Union, an act which I have found to be unlawful. Since the Respondent's offer was withdrawn solely be- cause of its unlawful withdrawal of recognition, the withdrawal of the offer was not an effective withdrawal. The offer remained open and a contract was consummat- ed at that point. Accordingly, I find that the Union ac- cepted Respondent's Proposal 4 as augmented by the March 18 wage modification. See Worrell Newspapers, Inc., 232 NLRB at 407.4 Respondent's argument that Proposal 4 did not include a profit-sharing or health and welfare plan provides no defense. A bargaining agreement need not encompass all terms and conditions of employment to be a contract. The Union clearly accepted Respondent's last proposal to the extent it covered certain benefits and working conditions. On all other matters not covered by the pro- posal the Union in effect accepted the existing benefits and terms and conditions of employment. Nor is it sig- nificant that the written proposal had no termination date. The contract proposal stated that the contract was to be effective when signed. Respondent, of course, was obligated to sign the agreement when its outstanding proposal was accepted. And even a cursory reading of Respondent's proposal, particularly its elaborate wage package, makes it clear that a 3-year term was intended. The evidence shows that the Union was pushing for a 2- year contract term and Respondent for a 3-year term. However, on May 17, the Union accepted Respondent's proposal in this respect. Neither of these alleged impedi- ments detracts from the fact that the Union-placed on the spot by Respondent's unlawful withdrawal of recog- nition at the end of a year bargaining-capitulated and took what it could get. Respondent's March 18, 1977, letter to Todd confirms the existence of an outstanding and specific contract pro- posal. In that letter, Respondent made only two modifi- cations to Proposal 4. The other points made in the letter were reproposals, clarifications, or requests for informa- tion. First, Respondent proposed new rate increases for jobs in "Classification IV" of Respondent's proposal, and made it clear that all across-the-board increases were "subject to" the December 26, 1976, increase. Secondly, Respondent indicated that it agreed, "tenatively, to match, for profit-sharing purposes, a contribution by the bargaining unit people of 2% of their gross wage." I find that the latter tentative offer was not specific enough to become part of the agreement of the parties. But this does not militate against the finding that the parties did reach agreement when the Union accepted Respondent's last offer. It simply means, as Union President Todd ex- plained, that the Union accepted the status quo on profit sharing and was willing to accept an agreement without any particular profit-sharing provision. In this connection, it must be emphasized that parties negotiating a collective-bargaining agreement are in effect negotiating an entire relationship circumscribed by statute. Technical rules of contract law are not necessar- ily determinative in collective-bargaining situations. As 4 Ftr his reason Porterfield's testimony as to the status of negotiations prior to May 17- that he was preparing a new proposal, and that the par- ties had nl agreed on he duration of the contract or profit-sharing pro- visions -is irrelevanlt 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Ninth Circuit Court of Appeals has stated in a similar case: In our view, the employer's arguments may be accepted as stating good technical contract law, but we do not think that in this particular case they state good collective bargaining law. We do not think that, in deciding whether, under a particular set of circumstances, an employer and a union have in fact arrived at an agreement that the employer is then obliged to embody in a written contract upon the union's request, the Board is strictly bound by the technical rules of contract law. Lozano Enterprises v. N.L.R.B., 327 F.2d 814, 818 (9th Cir. 1964). See also Ellis Tacke, d/b/a Ellis Tacke Com- pany, 229 NLRB 1296, 1302-03 (1977); Worrell Newspa- pers, Inc., 232 NLRB at 407. To recognize the withdraw- al of Respondent's offer, which was part and parcel of its unlawful withdrawal of recognition, would be destruc- tive to the statutory purposes of ensuring good-faith bar- gaining and stable bargaining relationships. Likewise,i would ignore the realities of collective bargaining. The Respondent had had its last contract proposal on the bar- gaining table for several months. But for its unlawful withdrawal of recognition, the proposal itself would not have been withdrawn. Thus, I treat the offer as not having been withdrawn and subject to acceptence by the Union. In these circumstances, I find that Respondent's rejec- tion on May 24, 1977, of the Union's request that Re- spondent's last proposal, accepted by the Union, be re- duced to writing violates Section 8(a)(5) and (1) of the Act. 8 a This determination in no way violates the dictates of United Steel- workers of America. AFL-CIO [H. K. Porter Co., Inc.. Dissron Division- Danville Works] v. N.L.R.B., 397 U.S. 99 (1970), because here Respond- ent is not being compelled to agree to terms to which it had not consent- ed. The contract is in effect Respondent's last offer. Respondent contends that the complaint should be dismissed because its allegations are not related to the charge and because the events form- ing the basis for the complaint occurred after the filing of the charge. Es- sentially the same argument was made to the Board in a Motion for Sum- mary Judgment. I am unclear whether the Board's disposition of the matter, as set forth forth in its denial of the motion, was a disposition on the merits. In any event, I reject Respondent's contention. The complaint is not barred by Sec. 10(b) of the Act. This provision is basically a statute of limitations. The complaint herein was not based on an unfair labor practice which occurred "more than 6 months prior to the filing of the charge with the Board." Indeed, Respondent's argument appears to be that the events alleged to be unlawful occurred well after the filing of the charge. This, of course, is no bar to the issuance of a complaint so long as the allegations in the complaint are "of the same class of violations as those set out in the charge" or reasonably related to the same controver- sy covered in the charge. See N.L.R.B. v. Fant Milling Company, 360 U.S. 301 (1959); N.L.R.B. v. Central Power & Light Company, 425 F.2d 1318, 1320-21 (5th Cir. 1970); Southern Materials Company , 181 NLRB 958 (1970); N.LR.B. v. Kohler Company, 220 F.2d 3, 6-7 (7th Cir. 1955). Clearly the complaint allegations herein grew out of the charge filed on May 3, 1977, which alleged an unlawful refusal to bargain since Decem- ber 1976 and "at all times thereafter." Bargaining did not cease until May 17, 1977, 2 weeks after the charge was filed. The events of May 17 were obviously part of the same bargaining wich spawned the charge, and they occurred at a time when General Counsel was investigating the charge. Their discovery was thus a "natural result of the investigation." N.LR.B. v. Kohler, 220 F.2d at 7. To require an amended charge in these circumstances exhalts form over substance. Respondent knew full well that the charge was being investigated and had not been dismissed. More- CONCLUSIONS OF LAW 1. By unlawfully withdrawing recognition from the Union on May 17, 1977, and by refusing thereafter to ex- ecute and apply the agreement of the parties reached on May 17, 1977, Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act. 2. These unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices and post an appropriate notice. I shall also recommend that Respondent execute and apply the collective-bargaining agreement which rip- ened into a contract when the Union accepted Respond- ent's last proposal on May 17, 1977, and that Respondent give that agreement retroactive effect and make whole its employees for any loss of earnings or benefits they may have suffered as a result of Respondent's failure to execute or apply the agreement. The loss of earnings and benefits shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).7 Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I issue the following rec- ommended: ORDER8 The Respondent, Pittsburgh and New England Truck- ing Co., Dravosburg, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to execute and to apply the collective-bar- gaining contract which was agreed upon by Respondent and the Union on May 17, 1977, with respect to the em- ployees in the following appropriate unit: All office clerical employees employed by Pitts- burgh and New England Trucking Co. at its Dra- vosburg, Pennsylvania, facility; excluding all truck- drivers and guards, professional employees, and su- pervisors as defined in the Act. over, Respondent knew that the charge had in effect precluded the proc- essing of the decertification petition which it had relied upon in with- drawing recognition from the Union. Further, when the charge did ripen into a complaint, the complaint fully and adequately apprised Respondent of the charge against it, and Respondent was able to defend itself in a hearing at which it was permitted fully to participate. Accordingly, I reject Respondent's contention that "the complaint in this case is not in conformance with the requirement of Section 10(b)" because "the facts which form the basis for the complaint in no way relate back of grow out of the general facts alleged" in the May 3, 1977, charge. See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). lin the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes. A s A PITTSBURGH AND NEW ENGLAND TRUCKING 839 (b) Refusing to recognize and bargain with the Union concerning the rates of pay, wages, hours, and other terms and conditions of employment of the employees in the appropriate bargaining unit described above. (c) In any like or related manner interfering with, re- straining, or coercing employees in the execise of their Section 7 rights. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain with the Union as the exclusive collective-bargaining representa- tive of the employees in the unit described above. (b) Upon request of the Union execute the collective- bargaining agreement agreed upon by Respondent and the Union on May 17, 1977, give retroactive effect to its terms and condition, and reimburse the employees in the unit described above for any losses suffered by them as a result of the failure of Respondent to execute or apply the terms of the bargaining agreement in accordance with "the Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Dravosburg, Pennsylvania, facility copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (e) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT refuse to recognize and bargain with the Union as the exclusive collective-bargain- ing representative of the employees in the appror- iate unit described below, and WE WILl NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of the rights guar- anteed them in Section 7 of the Act. WE WILL recognize and, upon request, bargain with the Union as the execlusive bargaining repre- sentative of the employees in the approriate bargain- ing unit described below, and WE WILL execute, upon request of the Union, the collective-bargaining agreement which we and the Union agreed to on May 17, 1977, and give that agreement retroactive effect. The appropriate bargaining unit is: All office clerical employees employed by Pitts- burgh and New England Trucking Co. at its Dra- vosburg, Pennsylvania, facility; excluding all truckdrivers and guards, professional employees, and supervisors as defined in the Act. WE WILL reimburse the employees in the appro- priate bargaining unit described above for any losses suffered by them resulting from the fact that we did not execute the collective-bargaining agreement which was agreed upon on May 17, 1977. PITTSBURGH AND NEW ENGLAND TRUCK- ING COMPANY