Bender Ship Repair Co., Inc.

BENDER SHIP REPAIR COMPANY Bender Ship Repair Company , Inc. and Bender Weld- ing and Machine Company, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local Lodge 112. Case 15-CA-3619 February 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 12, 1970, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled pro- ceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that they cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions and a brief in support, and the General Counsel filed a brief in support thereof. 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except to the extent modified herein. The record is replete with testimony concerning a vigorous program of interrogation and threats under- taken by the Respondents in the summer of 1969. This testimony is not disputed. The purpose of this effort was to discourage a membership drive among the Respondents' employees by the Boilermakers, with which Union the Respondents had long had con- tracts-largely unimplemented. Based on this testi- mony the Trial Examiner found, and we agree, that the Respondents engaged in "massive acts of interro- gation, restraint and coercion" in violation of Section 8(a)(1). As a result of the membership drive, which was under the aegis of a new union business manager, Watford, 66 employees joined the Boilermakers be- tween June and September 1969.1 In late August 1969 the Union attempted to meet with the Respondents concerning a list of written grievances it had submitted, ranging from unsafe working conditions to failure to live up to the con- 1 The Trial Examiner found 68, but 2 of these joined earlier 615 tract. The Respondents ignored this request, just as they had the May 1969 request to furnish the names of unit employees. On September 16 some of the em- ployees met with Watford and it was decided to put up a picket line. This was done beginning September 17. The Trial Examiner found that the strike from its inception was precipitated by the Respondents' un- lawful actions, so that, despite its partially economic objectives, it was an unfair labor practice strike and the strikers were entitled to reinstatement upon appli- cation. We agree with the conclusion that it was an unfair labor practice strike and should be remedied in the customary manner, but we base this solely on the 8(a)(1) interference, restraint, and coercion. That con- duct was so aggravated that we are persuaded that it played a significant role in the decision to strike. As discussed below, we do not affirm the Trial Examiner on his finding that an 8(a)(5) violation occurred. The Trial Examiner's conclusion that the Respon- dents unlawfully refused to bargain about contract problems directly hinges upon the presumption that the Union had majority status flowing from the 1967 agreement signed by the parties, which contract desig- nated the Union an exclusive representative.' As we analyze that contract and those which preceded it, and the practice under these contracts as shown by this record, we are unable to agree that a presumption of majority status based solely upon the existence of signed contracts is warranted. In evidence are three contracts between the Re- spondents and the Union, each for a 3-year term, beginning with that of 1961-1964. Appended to each is a wage schedule with four classifications: leader- man, mechanic, helper, and apprentice. Watford was asked by the Trial Examiner to define the meaning of "mechanic" as contained in the "1967 wage schedule." His answer was: a journeyman boilermaker. Only the 1967-1970 contract purports to cover a production and maintenance unit.3 The earlier contracts in effect cover a craft-type unit of boilermakers .4 Although the recognition clause in the 1967 contract implies an enlargement of the unit as compared with the earlier contracts, the appended wage schedule remains the same. No new classifications are added. Thus the con- tract in force in May 1969 when the Respondents ignored the request for a list of names of unit mem- bers contained a patent ambiguity as to unit. The 2 The record lacks evidence of majority status by the Union in any appro- priate unit at any critical date herein 3 "The Employer recognizes the Union as the sole bargaining representa- tive for all of its production and maintenance employees excluding office employees, professional employees, guards, and supervisors as defined in the Taft-Hartley Act, also machinists and teamsters who are already under con- tract for their craft jurisdiction " The 1961 and 1964 contracts simply recognize the Union "as the exclu- sive bargaining agency for all employees coming within the bargaining unit," a clause which we read in the light of the classifications in the appended wage schedule 188 NLRB No. 86 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change of business managers of the Union about June 6, 1969, precipitated a dispute as to just what the unit was, with Watford claiming "all employees not cov- ered by another contract" or "everybody except the Machinists and the Teamsters,"5 and the Respon- dents claiming that the contract was limited to boiler- makers, specifically to boilermakers who were members of the Union and engaged in ship repair, but not in new ship construction. Nor is the question of unit resolvable by the manner of applying the contract. President Bender testified that the contract was never intended to cover any but union members-that it would have been unprofita- ble to apply it otherwise; Vice President Ellison testi- fied that only "some" union members received benefits and then only if benefits were requested, but also that he extended the contract benefits to some nonunion employees who were "regular" and "we in- tended to keep." Employees doing boilermaker work testified that as late as the spring of 1969 they were not even aware that there was a contract; others knew that there was but understood that union membership was a condition of receiving its benefits. Even if, as the Trial Examiner found, this contract was not on its face, or in practice, a contract covering only union members, or only union members in ship repair, we find that it was otherwise defective in cre- ating or perpetuating a true collective-bargaining rela- tionship. We reach this conclusion because the unit defined is ambiguous in scope-purporting to cover a production and maintenance unit while continuing a wage scale limited to boilermaker employees-and because it was applied, as in the case of earlier con- tracts in evidence, to ignore contract benefits except for a few favored employees .6 It is not possible on this record to find that it was ever applied to a craft-type unit of boilermakers as a whole, which in March 1967 would have numbered about 125, or to a production and maintenance type unit of ship repair and con- struction employees, which would then have num- bered about 296.7 Nor is it possible to conclude that, during the latter part of its term, when the Union became vital, the contract was applied on any discern- ible unit basis.' Thus we view the 1967 agreement as s But Watford's testimony at the hearing shows that Watford did not understand the contract's coverage as extending to all these employees or to the production and maintenance unit which the Trial Examiner found to be in existence. It would appear that, as Watford understood it, the contract applied to all in the "boilermaker craft." In fact, on June 19, 1969, he posted notices at Bender's reading: To: All Shop Employees (Boilermake Craft) Anyone Desiring to Join Boilermakers Local 112 may do so under the special rate of $ 15.00, up to September 9, 1969. J.F. Watford Business Manager 6 See Raymond's Inc., 161 NLRB 838, 840. 7 This total of 296 apparently includes employees represented by the Ma- chinists and the Teamsters, whose number is not evident. failing to define a unit with sufficient clarity to war- rant a finding that a presumption of majority should attach to it. In addition it is evident from the practice under this and earlier contracts that the parties had no intention of entering into a real collective-bargaining relationship. Instead, for many years, the Union was willing to exact little in the way of contract enforce- ment and the Respondents were satisfied to reap the financial benefit of lower costs .9 Accordingly, we shall dismiss the 8(a)(5) allegations of the complaint for failure of the General Counsel to sustain his burden of proof on the crucial issue of the status of the Union as majority representative in a defined, appropriate unit.10 CONCLUSIONS OF LAW In lieu of the Trial Examiner's Conclusions of Law 4 to 8, we reach the following Conclusions of Law 4, 5, and 6: 4. The Respondents have not engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. The strike, which commenced on September 17, 1969, was caused by Respondents' unfair labor prac- tices in violation of Section 8(a)(1) of the Act and hence was an unfair labor practice strike. 6. The said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondents, Bender Ship Repair Company, Inc. and Bender Weld- ing and Machine Company, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees about their union sympathies and activities, threatening them with reprisals for engaging in union activities, encour- aging and soliciting employees to withdraw from their union, and conveying the impression of and engaging 8 The Trial Examiner found that the Union neglected to hold the Respon- dents to the 1967 contract terms for "the first 17 of the 36 month contract." True, the Union, about midterm, sought information on the content of the "unit." When this was ignored it waited a year and then sought information again. After that it began its membership drive. It does not appear that this resulted in "unit" employees receiving contract benefits. 9 Illustrative of the token nature of the arrangement was the tacit accept- ance and continuance of the status quo upon the occasional payment by the Respondents of initiation fees for a few added employees in order to "give the Union a few men," as Vice President Ellison testified. 10 See Ace-Doran Hauling & Rigging Co., 171 NLRB No. 88 ; cf. Barrington Plaza and Tragniew, Inc., 185 NLRB No. 132, where the Board recognized the presumption of majority status arising from a series of contracts during which "the Union actively represented the unit employees and effectively policed the various provisions of the agreement." BENDER SHIP REPAIR COMPANY in surveillance of union activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon unconditional application, offer imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, to all strikers heretofore not restored there- to, and make whole for any loss of earnings strikers who have made themselves available for employment on an unconditional basis but who were refused rein- statement, in the manner set forth in the final para- graph of The Remedy section of the Trial Examiner's Decision. (b) Notify immediately strikers not heretofore reinstated, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all oth- er records necessary to analyze the amount of back- pay due under the terms of this Order. (d) Post at its shipyard in Mobile, Alabama, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondents' representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges unfair labor practices not found herein, be, and it hereby is, dismissed. 11 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 be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an order of the National Labor Relations Board." 617 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, it has been decided that we, Bender Ship Repair Company, Inc. and Bender Welding and Machine Company, Inc., have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to self-organization; to form, join, or help unions; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT coercively question you about your and other employees union sympathies and activities; nor shall we threaten you with reprisals for engaging in union activities; nor shall we encourage and solicit you to withdraw from your union; nor shall we engage in surveillance of union activities or convey to you the impression that your union activities are under surveillance. WE WILL, upon unconditional application, reinstate to their old or equivalent jobs all employees who were on strike on September 17, 1969, and who have not already been reinstated to such jobs. WE WILL pay all strikers who have made unconditional offers for reinstatement, but who were refused such reinstatement, for any wage losses they suffered because of our refusal to reinstate them. Dated By BENDER SHIP REPAIR COMPANY, INC. AND BENDER WELDING AND MACHINE COMPANY, INC. (Employer) (Representative) (Title) We will notify immediately strikers not heretofore reinstated, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL M. SINGER, Trial Examiner: This proceeding, on an amended complaint issued December 23, 1969, based upon charges filed on August 11, October 21, and Decem- ber 19, 1969, was tried before me in Mobile, Alabama, on various dates between January 13 and February 18, 1970. The complaint alleges that Respondents violated Section 8(a)(1) and (5) of the NationaF Labor Relations Act, as amended, through acts of interference with and restraint and coercion of employees' rights; and also by refusing to meet with the Charging Party, as exclusive representative of Respondents' employees in an appropriate bargaining unit, to discuss employee grievances, to furnish the Union with relevant bargaining information, and to make required pen- sion plan contributions. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Briefs were filed by General Counsel and Respondents, with final submission on June 9, 1970.' Upon the entire record 2 and my observation of the testi- monial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENTS For reasons hereafter stated (sec. B), I find that Bender Ship Repair Company, Inc. ("Bender Ship") and Bender Welding and Machine Company, Inc. ("Bender Welding") (names amended at the hearing), both Alabama corpora- tions, at all material times have constituted a single-integrat- ed business enterprise (hereafter referred to collectively as Respondent). Respondent, with principal place of business in Mobile, Alabama, is engaged in various business enter- prises, including construction and repair of ships, such as tugboats and shrimp boats, at its yards along the west bank of the Mobile River. It annually sells and delivers to pur- chasers in other States, and purchases and receives from sellers in other States, products valued in excess of $50,000. I find that at all material times Respondent has been and is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Charging Party ("Union" or "Local 112") is a labor organization within the meaning of Section 2(5) of the Act. 1 The record was not closed until April 17, 1970, to afford Respondents opportunity to submit certain additional data. Transcript corrected by my order on notice dated June 5, 1970. Rulings on admission of certain exhibits into the record, which were reserved at the trial, are disposed of infra, fns. 26 and 27. See also fn. 20. III. THE UNFAIR LABOR PRACTICES A. Background: The Issues Respondent and the Union have had contractual rela- tions since at least 1961, the latest collective agreement hav- ing been executed on March 2, 1967, for 3 years to March 2, 1970. These agreements were signed in the name of Bend- er Ship Repair, although the employees were employeed and paid by Bender Welding. Thomas B. Bender, Sr., is president of both companies; under him are his son, Thom- as Bender, Jr., in charge of new boat construction work ("new construction"),3 and Thomas E. Ellison (vice presi- dent of Bender Welding) in charge of ship repairs. Respon- dent also does "outside construction 7' or "field construction" work away from its shipyard. It operates four yards in Mobile, the number of its employees fluctuating considerably. According to Respondent's payroll records (Resp. Exhs. 26a-26c and 56-61), Respondent had 35 to 95 "boilermakers" in `ship repair and 37 to 264 in new boat construction on various dates between February 28, 1967, and July 8, 1969 (i.e., payroll periods ending February 28, March 7 and 14, and July 4, 1967; March 13 and July 9, 1968; and March 11 and July 8, 1969).4 Only a few of these-not more than 8 in ship repair and 16 in new con- struction-were Union members during this period;5 the record indicates that admission to Union membership was restricted until June 1969, when the Union inaugurated a membership drive. As hereafter noted, Respondent did not appl the terms of the last (1967-70) collective agreement to allyemployees in the contract-described bargaining unit (all production and maintenance employees, except machinists and team- sters covered by other collective agreements). There is no evidence that the Union raised the question of Respondent's failure to honor its contractual commitments until August 1968, when it called to the Company's atten- tion employee "complaints" about not receiving the con- tract "wages and benefits." Respondent ignored Union requests, made in August and September 1968, for lists of the unit employees, and their job classifications and pay .rates, which the Union sought to "intelligently deal with these complaints and grievances." It ignored a similar re- quest again made in May 1969. In June 1969, the Union appointed a new business manager (Watford), who zeal- ously pressed Respondent to apply the contract to all unit employees. He requested the same type of information from Respondent (list of employees in the unit, and their classifi- cations and pay rates) that was requested of it earlier in order to effectively handle employee complaints, and sought meetings to discuss these complaints. The Union also objected to Respondent's failure to make contributions on behalf of all unit employees to the Union's pension plan as required by the 1967-70 collective agreement. In meet- ings with Watford, Respondent took the position that it was not obligated to apply the collective agreement to all em- ployees in the contract-described (production and mainte- 3 Unless otherwise indicated, all references to "Bender" are to Thomas B. Bender, Sr., rather than to Thomas B. Bender, Jr. 4 "Boilermakers" include such classifications as welders, shipfitters, tack- ers, and burners. According to Respondent's payroll records, it had 155 to 228 employees other than "boilermakers" in its ship repair and new construc- tion departments on various dates between February 28, 1967, and July 8, 1969. On March 7, 1967 (shortly after execution of the 1967 collective agree- ment), it had 134 boilermakers and 171 "other" employees in ship repair and new boat construction, a total of 305. 5 Only nine were Union members on March 7, 1967. However, it appears that members of other Boilermakers locals also worked for Respondent at various times during the period involved in this case. BENDER SHIP REPAIR COMPANY nance) unit, on the ground that the agreement applied only to Union members in ship repair, insisting that the Union never represented a majority of employees in that unit. On September 17, 1969, the Union struck the shipyard to force Respondent to comply with the 1967-70 collective agree- ment and to rectify employee complaints and grievances. In the meantime (beginning with June 1969), Watford conducted a campaign for additional Union members to strengthen his hand in dealing with Respondent.6 Among other thins, Watford obtained a "special dispensation" of the Union s $15 initiation fee, appointed new stewards to assist in the campaign, and distributed among employees copies of the 1967-70 collective agreement. As presently shown, during the campaign Company officials interrogat- ed employees about their Umon sympathies and activities, warned them that it could not meet the Union wage scale, and also threatened that it would close the shipyard rather than operate a unionized business. The major issues presented are: 1. Whether Bender Ship Repair and Bender Welding con- stitute a single-integrated business enterprise under the Act for jurisdictional purposes, as well as responsibility for rem- edying the alleged unfair labor practices. 2. Whether Respondent, in violation of Section 8(a)(1) of the Act, interfered with, restrained, and coerced employees during the Union's membership drive by interrogation, threats, and other conduct. 3. Whether Respondent, in violation of Section 8(a)(5) and (1) of the Act, unlawfully refused to meet its collective- bargaining obligations (a) by rejecting the Union's requests to furnish relevant bargaining information; (b) by failing to meet to discuss employee grievances; and (c) by refusing to make contributions to the Union's pension plan as required by the 1967-70 collective agreement. Answer to these ques- tions turns mainly on whether the Union was the majority representative of Respondent's employees in an appropriate bargaining unit during the life of the collective agreement, including the date of execution of the agreement in March 1967.1 4. Whether the September 17, 1969, strike was an unfair labor practice strike. B. The Single Employer Issue As related, Bender is president of both Bender Ship Repair and Bender Welding. He also is the primary stock- holder of both. Bender Welding was incorporated in 1923 to engage, among other things, in "general manufacturing and repair business of all kinds pertaining to metal"; and Bender Ship Repair in 1952 " to engage in a general ship building and ship re air business in all of its phases... . Bender Ship Repair has no employees, but carries Bender on its payroll. It-has no physical assets other than one piece of property (Yard 1), where "the main office" of the two companies is located. Nearby are Yard 3, where new boat construction and some repairs take place, and Yard 4, where repairs are usually made. (Yard 2 is a "marine rail- way" where only four or five employees (apparently nonun- it employees) work. Bender Welding does all the repair work for Bender ship Repair and carries on its ayroll all employ- ees-ship repair and new construction (i.e., shipbuilding). Bender Ship Repair keeps no records and files only an 6 Watford's drive also covered other employers in the Mobile area 7 As noted, at the hearing Respondent contended that the Union repre- sented only its members, that the collective agreement covered only ship repair as distinguished from new construction work, and that the unit which the Union claimed to represent was inappropriate 619 annual tax return. No contracts are written in its name. It is conceded that Bender Welding "does and has done bus- iness under the name of Bender Ship Repair." Although Bender, Jr. (Bender's son), is in charge of new construction and Ellison of repairs, Bender admitted that as president of both companies he has final "control" over both categories of work. And Ellison admitted that he is a "consultant," called on by Bender, Jr., for "advice ... in new construction." The record establishes that Ellison has effectively "recommended" the hiring of employees for new construction and, indeed, that he personally has transferred employees from ship repair to new construction. According to Bender, Ellison (who has worked for him for 23 years and is also an officer and stockholder of Bender Weldin) is his alter ego and "thinks, talks, and acts like" Bender. "Loans" of ship repair employees to new construction and new con- struction employees to ship repair are not unusual, and are handled informally. Employees credibly testified, without contradiction, that they had worked in both new construc- tion and ship repair `when the [the Company] needed" them. A single `personnel man' (Judd) interviews appli- cants for both divisions and hires for both after clearance with Ellison or Bender, Jr. Based on the above (including the evidence of common ownership and control of the two corporations, and the interrelationship and integrated character of their opera- tions), I find and conclude that Bender Ship Repair and Bender Welding constitute a single employer under the Act for ]jurisdictional as well as remedial purposes. See, e.g., N.L. R.B. v. Concrete Haulers, Inc., 212 F.2d 477, 479 (C.A. 5); N.L.R.B. v. Calcasieu Paper Co., Inc., 203 F.2d 12, 13 (C.A. 5); N.L.R.B. v. National Shoes, Inc., 208 F.2d 688, 691 (C.A. 2); N. L. R. B. v. Condenser Corporation of America, 128 F.-2d 67, 71 (C.A. 3); N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398. C. Interference, Restraint, and Coercion The complaint contains numerous 8(a)(1) allegations, principally alleged instances of interrogations and threats. The evidence adduced by General Counsel on this aspect of the case is uncontradicted, Respondent having failed to call the supervisory personnel involved to meet the employee testimony relied on. Without going into extensive detail, I find that the following incidents involving Company super- visors and agents, named in the complaint, amply support findings of unlawful interference, restraint, and coercion. 8 1. The evidence a. Tom Wallace (i) On or about July 29, Assistant Superintendent Wallace (Bender, Jr.'s chief assistant in new construction) told em- ployee Dixon that he was surprised that Dixon joined the Union since he "thought [they] were pretty good friends." To Wallace's inquiry as to why he joined, Dixon answered that "there was a rumor" that Bender's six "oldest" employ- ees would be laid off "to frighten them [and others] away from the Union" and that Dixon's name "was supposed to be on the top of the list." Dixon also stated that he wanted security. Assuring him that his position was secure, Wallace asked Dixon "to withdraw" from the Union, but the latter said he had "already gone too far," having paid his dues. Wallace then warned that "the men that have joined this 8 All incidents took place during the Union's June-September 1969 mem- bership drive 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, they are all going to be transferred to Yard 3.9 He also said while he "could understand a man ,joining a union if they had a contract," Local 112 "hasn't got ' one, since the contract "they have got," which was drawn up years ago by Bender, was `no good." When Dixon asked whether Wal- lace intended "to transfer ... and buck [him]" because he joined the Union even though he had done "a good job" for the Company in his almost 4 years, Wallace indicated that he would not hesitate "going to buck" him and others as well, pointing, among others, to Dixon's helper (McCam- mon) who was nearby. (ii) McCammon testified that 3 or 4 days after he joined the Union (on July 24), Wallace told him and two other employees that Bender "would close the yard down" before he would "let the union go in." When Wallace asked the men "about withdrawing' from the Union, the men asked "what kind of guarantee they had that they "still wouldn't be fired"; Wallace assured them that he himself would quit if they were terminated.10 (iii) On July 25, a day after he joined the Union, employee Robertson asked Wallace what joined "thought about the union coming into the yard." Wallace said he "didn't think Mr. Bender would ever go for it"; and that Bender "could close the yard down if he wanted to." Shortly afterward, Wallace told Robertson, "Well, you know you can get out [of the Union] if you want to," but Robertson said he would "stick with" it because he might be "fired" for signing up. (iv) On August 6, employee Hughes asked Wallace for a wage raise. Wallace answered that Hughes "would have to wait a couple of weeks ... and see how this Union mess was going to turn out." Wallace went on to say that he had been talking to employees "about this particular Union because it was no good," indicating that its collective agreement had been drawn up by Bender s lawyer 8 years earlier and Bend- er "could get around anything in the contract he wanted to." Wallace gave as an example the contract clause requiring an employee to work the day before as well as after a holiday in order to obtain holiday pay and explained that Bender "could" or "might shut down' the plant for any reason (on account of electricity or repair work) on either day to pre- vent employees from receiving holiday pay. b. Thomas Bender, Jr. (i) On July 25 General Superintendent Bender (in charge of new construction) told Pace, an apprentice, that ` it wouldn't really do [him] any good to join the Union" and that "it would really set the yard back to have a Union on the yard," explaining that Bender "could not put out shrimp boats and pay Union scale wage[s]." Asked if he had joined the Union, Pace said that he had not, although, in fact, he had signed up 2 days earlier. Bender, Jr., remarked that "it would be better" for him and others in the yard if they "stayed out" of the Union because the Union might hinder the Company's apprentice program and affect Respondent's ability to build boats. He also suggested that if he knew an young boys (like Pace) who were "thinking about joining the Union, that he tell them that the Union `might set them back as far as getting a pay raise and so forth." 9 Dixon testified that although a transfer to Yard 3 did not entail reduction in pay, it nevertheless represented a "demotion " to a welder position from the more desirable pipefitter position. He also quoted Wallace that the trans- ferred Union men would be laid off "as soon as the work was finished in Yard 3 10 McCammon's testimony apparently relates to the same incident as that to which Dixon testified (supra) McCammon corroborated some of Dixon's testimony, including that relating to Wallace's threat to transfer Union em- ployees to Yard 3 (ii) On July 26, Robertson, one of the Union men trans- ferred to Yard 3 (supra, fn. 10), told Bender, Jr., "I heard that I was pegged as one of the ringleaders of the Union." Robertson denied that he was a ringleader and Bender as- sured him that he "wouldn't be fired for joinin the union." Bender added that he "had a contract with the Boilermakers Local and ... just couldn't meet the scale they was asking for." Later, lender returned and said that Robertson "could get out [of the Union] by writing a letter," suggesting that he show it to him before mailing it. Robertson said he feared he would "be fired if [he] dropped out." c. Bob Adams (i) In the latter part of July, Yard Supervisor Adams asked Wilmer Lamey whether he was a Union member. When Lamey acknowledged that he was, Adams asked if he "would want the same thing as the rest of the guys" in case of a strike. He also asked "how come [Lamey] got into the union." Lamey said it was for the same reason that Adams himself had once belonged to a New Orleans local; namely, that he should have "something [he] can fall back on" in case of a layoff. (ii) Around July 10, Adams told another employee, John Lamey, that he "understood [Lamey] was down there trying to get all these welders, fitters and tackers ... in the union. When Lamey denied this, Adams said that "somebody else come down there before and try to start a union and ... they lost their job," adding that "if [Lamey] thought anything of [his] job the best [he] could do was to drop the union or [he'dI be laid off or fired." Adams also said that Bender "had enough money he didn't need that shipyard and ... he'd close it down.' d. David Bender Wilmer Lamey testified credibly and without contra- diction that David Bender (another son of Bender), who worked in the shipyard during his summer school recess, repeatedly questioned him "as to who was in [the Union], who was starting it, how many [belonged] and so forth." When Lamey disclaimed knowledge, David Bender said that if he heard "anything" to "let [him] know." He also said that his brother (Bender, Jr.) "won't allow a union to come in here and he will stop it by any means he can." In another conversation David Bender said, "I hear your cousin, Ger- ald Lamey, is talking up the union up at the store" and that if he did he will "get himself in trouble." David Bender "kept asking [Lamey] about Gerald, if he was the one that was starting this. 11 e. George Dangleman On July 25, Production Manager Dangleman approached Pace, while signing up a fellow employee (Keith), and asked Pace, in the presence of other employees, if the men "knew what [they were] doing" and if they were using Union "forms" to sign up the men. Dangleman was jotting down the names and badge numbers of the employees involved, and kept watching them until they left in their cars. 11 While David Bender was not a supervisor, nevertheless, as the known son of the Company's president and brother of its general superintendent, realism requires recognition of the fact that he was-and was known to fellow employees to be-"in a strategic position to reflect the desires and policies of management"-which he did. Cf N L.R B v. Champa Linen Service Co, 324 F 2d 28, 30 (C A 10). See also Foam Rubber City No 2 of Florida, Inc, 167 NLRB 623 However, under the circumstances and in view of other findings herein, it is unnecessary to find that David Bender 's conduct here is attributable to Respondent. BENDER SHIP REPAIR COMPANY 621 f. Tom Foster Shortly before the September 17 strike , Foreman Foster talked to employee Parker "several times," each time tellin Parker that he "was going to lose [his ] job because [he joined the union" and that he would have to obtain other employment "because Bender was going to shut the yard down.' g. Billy Frederickson About a week before the strike, Supervisor Frederickson asked Parker if he "had joined the Union." When told he had, Frederickson said he was going to transfer him to Yard 3 (supra, fn. 10) where he "would get laid off with the rest of the union men" when the work in that yard was complet- ed. h. Frank Hansen Around July 25 Foreman Hansen came over to Dixon and asked, "What is all this I hear about the Union? The yard going Union, and peo le joining the Union?" Dixon replied: "[T]here's no need for me to try to hide it from you. I joined the Union myself, and I know you'll find it out." When Hansen asked why the men were joining, Dixon said that Bender had a contract with the Union providing for benefits to which the men were entitled. i. Jim Middleton In July employee Mills inquired of Foreman Middleton why he had fired" his helper (Cowart) during Mills' ab- sence. Middleton acknowledged that Cowart had been fired because he "joined up for the union." Middleton also said he was "getting rid of the new members down there that joined up for the union." j. L. D. Morgan (i) Also in July, Yard Supervisor Morgan asked Mills if he had "hear[d] an body talking about any union." When Mills said "no," Morgan told hun that if he did he should let him know, so that he could "get rid of them right on the spot." (ii) On another occasion (likewise in July) Morgan, noting that Mills wore a steward's badge, went over to him and grasped the badge, saying "I see you finally got one ... at s bad business." k. Robert Paul cials, supervisors, and agents) interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights (including the right tojoin and assist a labor organiza- tion), in violation of Section 8(a)(1) of the Act, by coercively questioning employees about their Union sympathies and activities; by threatening them with reprisals (including loss of jobs, transfer to less desirable work , and plant shut(rwn) for engaging in Union activities ; by encouraging and solic- iting employees to withdraw from the Union ; and by cre- ating the impression of surveillance and engaging in surveillance (see sec. C, 1, e) of Union activities. 2 In its brief, Respondent does not challenge the 8(a)(1) complaint allegations. At the hearing, Union Business Man- ager Watford testified that when he complained about the supervisors' coercive conduct to Company President Bend- er, the latter said he "couldn't believe that his prople were doing these things"" Apart from my grave misgivings that Bender was unaware of the widespread coercive conduct of his supervisors, it is clear that Respondent is liable therefor even if, as Bender's statement to Watford implies, the con- duct did not accord with Company policy . To begin with, there is no evidence that Respondent communicated the alleged Company policy to its supervisors, let alone its em- ployees. Nor is there evidence that Bender had taken any steps to repudiate the illegal conduct . It is settled law that an employer is responsible for its supervisors' coercive state- ments even if they were "contrary to the orders of the com- pany manager and to the express olicy of the company." Solvay Process Co. v. N.L.RB., 117pF.2d 83 , 85 (C.A. 5); see also Hendrix Manufacturing Company, Inc. v. N.L.RB., 321 F.2d 100, 104 (C.A. 5); N.L.R.B. v. Wylie Manufacturing Company, 417 F.2d 192, 193 (C.A. 10). Moreover, it is to be noted that the Company officials engaging in the unlawful conduct included such high-ranking individuals as General Superintendent Thomas ender, Jr. (Company President Bender's son and head of Respondent 's new construction department), the assistant superintendent (Tom Wallace), and the production manager (George Dangleman). Under the circumstances shown, the employees had just cause for believing that these officials spoke with the voice of authori- ty and reflected Company policy . Trey Packing, Inc. v. N.L E.B., 405 F.2d 334, 338 (C.A. 2). D. The Refusal To Bargain 1. Contract negotiations As already noted (supra, sec. A), Respondent and the Union have had long contractual relations . Included in the record are three collective agreements , the first executed in March 1961. In each Respondent undertook to recognize the Union as the exclusive bargaining representative of its Employee Waldrup testified that on one occasion his su- pervisor, Paul, observed Union Steward Lamey give Wald- rup a business card with Assistant Business Mana ger Hodges' telephone number. (Waldrup wanted to call Hod- es on a matter he was concerned about .) Paul said, "I didn t know you was in the Union" and inquired, "How long have you been in the Union ." Waldrup said he joined a month earlier. Fearing he might be laid off or transferred to Yard 3, Waldrup asked when he could expect such move , but Paul said he "didn't know." 2. Conclusions I find and conclude that the uncontradicted evidence, as briefly summarized above, fully supports the allegations of the complaint that Respondent (through its managerial offi- 12 As previously noted, except for one instance (sec. C, 1, d) I have enumer- ated only incidents supporting the 8(axl) complaint allegations . Thus, the record does not support the allegations in the complaint that Respondent also violated Section 8(aXl) through other claimed supervisors and agents, including Dennis Howard, Thomas Bailey, and Doyle McClendon. While, as General Counsel points out (br., p. 21), employee Massey testified , without contradiction, that he "overheard" a conversation between Foreman Thomas Bailey and a layout man (McLanahan) in which, "they said that if [another employee, Bobby Bailey] did join the Union ... he'd be on the outs list, and that he would probably get laid off," the witness did not identify the individ- ual uttering the threat , i.e., whether it was the supervisor (Foreman Thomas Bailey) or the layout man (an admittedly nonsupervisory employee). Accord- ingly, I reject General Counsel's contention that this incident constitutes yet another 8(a)(1) violation. 13 After summoning employees and foremen to his office to verify Watford's complaint, Bender told Watford that he "was convinced that there was this sort of thing going on and that he would put a stop to it." 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in a bargaining unit . The last agreement (March 2, 1967-March 2, 1970) provided (article 1): The Employer recognizes the Union as the sole bar- gaining representative for all of its production and maintenance employees excluding office employees, professional employees, guards, and supervisors as de- fined in the Taft-Hartley Act, also machinists and teamsters who are already under contract for their craft urisdiction.14 While the history of the negotiations on the collective agree- ments is meagre and the limited testimony thereon confus- ing,15 it is clear that the parties "always got together and had a general discussion" before signing the agreements. Com- pany President Bender and representatives of other employ- ers in the Mobile area would meet with Union representatives, using as a "guideline" the collective agree- ment worked out previously with other employers on the Gulf Coast. According to Bender, the employers met with the Union twice or three times before the latest ( 1967) con- tract was executed ; topics included "wages, compensation for work, holidays, pensions, [ and] what have you." Among other things, wage rates were raised over the 1964 level and a new pension plan was introduced . 16 While, as indicated, the 1967 negotiations were jointly conducted with other employers, Sender signed a separate instrument that year (G.C. M. 2). 2. Administration of the 1967-70 collective agreement Although the 1967 collective agreement purports to cover "all" of Respondent's production and maintenance employ- ees (excepting machinists and teamsters , covered by sep- arate contracts in their respective crafts)," Company President Bender testified that it was "intended" to cover only Union members in ship repair ; and that it was inappli- cable to non-Union ship repair employees and to others (Union or non-Union) in new boat construction. Bender's' testimony on this point is confusing and, in any event, is not supported by the record . While seeking to convey the im- pression that the parties had "discussed " coverage of the contract in the 1964 and 1967 negotiations, Bender indica- ted that he only assumed that the Union had agreed to the claimed limited coverage (despite the language of the con- tract to the contrary). For example, when asked to relate the circumstances leading to the alleged agreement to cover only ship repair (and not new construction) employees, Bender testified, "it was discussed but it was not pursued by the union or by us for the sole purpose and reason that they knew it [the limitation] existed, they knew we could not live under it ... they knew we couldn't operate under it. We could not build boats under this a reement ." later, he added that the Union negotiator (Wise would have had "to be blind not to know otherwise," and at another point he stated 14 The two preceding contracts (March 1961-March 1964 and March 1964-March 1967) stipulated (in identical language) that "the Employer recognized the Union as the exclusive bargaining agency for all Employees of the Employer coming within the bargaining unit." 15 Only Company President Bender testified on the negotiations. For reasons to be noted (sec. D.2 and 5), I do not regard Bender as a wholly reliable witness. 16 Bender testified that the changes in 1964 concerned "mainly" wages and paid holidays. 17 Respondent has had separate agreements with the Machinists, the latest one (1967) apparently still in effect. There is evidence that at one time it also had an agreement with the Teamsters. At the hearing, Respondent offered in evidence other collective agreements, most of them covering "outside" or field construction work, admittedly not unit work. that Respondent "wouldn't discuss [the contract] on any other basis" since "we were not closed shop ... We wanted to protect the people who belonged to the union and no one else." According to Bender, the understanding to limit the contract to ship repair was "an unwritten deal other than what is in black and white." He repeatedly stated that only Union members were to be covered. of whom there were only very few in the plant (supra, fn. 6). Nor does other Company testimony establish that the contractual terms and conditions of employment were con- fined to Union members in ship repair. Company Vice Pres- ident Ellison, in charge of ship repairs, testified that in addition to granting the contract benefits to Union employ- ees, he extended them to non-Union ship repair employees who were "regular" and qualified and "we intend[ed] to keep." According to Ellison , "some" ship repair employees on 'loan" to new construction also were accorded these benefits. Company President Bender made no distinction whatever between the two categories, indicating that as far as he knew "the ones who belong to the union, they all got the same holidays, the same spay whether they were new construction or ship repair."' Similarly, the documentary evidence produced by Re- spondent refutes any contention that the contract benefits were to be confined to ship repair employees who were Union members.19 According to Respondent's payroll re- cords employees in both ship repair and new construction, Union and non-Union, received time and a half and double time, although it was claimed that double time was given only to Union members in ship repair. (supra, fn. 19.) Its records show no different vacation program in effect for Union as opposed to non-Union employees and ship repair as opposed to new construction employees; insofar as ap- pears, only a handfull of men received more than 1 week's vacation in 1967, 1968, and 1969; and of the six receiving 2 weeks in 1969, only one was a Union member.20The same is true respecting holiday pay, it appearing that some Union and some non-Union men (in both ship repair and new construction) received this benefit while others did not. As to pensions, while it appears that Respondent granted this benefit to 11 Union members (several of them supervisors), it had not given it continuously for all members entitled thereto since the contract went into effect in 1967. Finally, Respondent's payroll records reveal no systematic pattern in regard to wages, it appearing that Respondent drew no distinction as between members and nonmembers and as between ship repair and new construction employees. At the hearing, several employees testified that they were unaware of their right to contractual benefits and that they received none. One employee testified that the then Union 18 On the other hand, Bender testified that "as a rule" new construction employees were paid time and a half whereas "all" repair work was on "double-time." 19 The records in question (Resp. Exhs. 26, 30 through 36, and 38 through 72) consist of payroll records (summaries and "Back up" data), purporting to show the manner in which the 1967-70 contract was administered and implemented (during selected or sample periods) in regard to wages, overtime pay, holiday pay, vacations, and pensions . My order of April 8, 1970, admit- ting (over General Counsel's objection) documents tendered by Respondent after close of the hearing, designates the "summaries" as Exhibits 40 through 72 and the background materials (on which the summaries are based) as Respondent Exhibit 73. Since it appears that relevant portions of the back- ground materials (originally intended to comprise a single separate exhibit) were separated and attached to Exhibits 40 through 72, the reference to Exhibit 73 in my April 8, 1970, order is hereby stricken. 20 Company Vice President Ellison testified that no distinction was made between Union and non-Union employees for purposes of qualifying for a full week's vacation; all had to have worked a given number of hours in the year to obtain the paid vacation. Regular part-time employees received less than 40 hours, based on average time worked. BENDER SHIP REPAIR COMPANY stewart (Yancy Johnson) had told him that he had to be a Union member to obtain this benefits . 21 There is evidence that some employees were under the impression that the membership drive inaugurated by Watford (the newly de- signated Union business manager ) in June 1969 (infra, sec. D, 3) was an initial organizational campaign . It was not until that drive was under way that some employees became aware of the existence of a collective agreement between Respondent and the Union ; others, however, had known of its existence long before the 1969 drive. 3. The 1969 membership dnve In June 1969, Watford was appointed Union business manager, succeeding Herman Wise 22 Watford replaced the steward (Yancey Johnson) with Perry Langley and appoint- ed other stewards and assistants to cover each of Respondent's four yards23 The stewards were instructed to distribute copies of the Union's 1967 collective agreement and to sign up new members? According to Perry Lanpley's credited testimony, Watford and Hodges told him that it was his duty "to protect" all Bender employees, Un- ion and non-Union, and to "handle any [employee] griev- ances" that might arise. Langley talked to over 100 men, gave out copies of the collective agreement and explained it to employees, and took complaints of all types (pay dis- crepancies, safety violations, inadequate equipment and tools, no holiday and vacation pay) from Union and non- Union employees which he then relayed to Watford and Hodges . McCammon, an assistant steward who also solic- ited members, similarly testified that he was instructed to take grievances and he told prospective members that "Mr. Bender had a contract with the Union," copies of which he distributed . According to Steward John Lamey, "the mem- bers and some of the nonmembers in the Union" com- plained that Respondent was "not living up to the contract," and he and Perry Langley handed written griev- ances over to Watford. Employee Waldrup quoted Langley as saying that "they was going to organize the members of the Union," to get [Bender] to live up to the contract." The record shows that 68 emploees joined the Union between June and September 1969.15 Company Vice Presi- dent Ellison credibly testified that three of these, whojoined in June 1969, did this throuhis cooperation and assist- ance. According to Ellison, after Assistant Business Manag- er Hodges asked him to "get some more members" he got together with the then steward (Yancey Johnson) and the two "selected" employees Harold Johnson (Yancey's son), Joseph Simmons , and Thomas Cagle as likely candidates. The three agreed to join the Union after Ellison offered to pay their initiation fee ($35 for each ), which he did; the employees paid the dues.26 21 Other employees also testified that they understood that membership was a prerequisite to entitlement to contract benefits 22 A month earlier (May 1969), the Union (Local 112) was placed in trusteeship, with International Representative Stave as supervising trustee The record does not disclose the reason for this action. 23 Hodges, Wise's assistant, was retained as Watford's assistant 24 As previously indicated (supra, sec A), the Union had only a handfull of members-not exceeding nine between February 1967 and June 1969 Also as previously noted (sec A), Watford obtained authorization to waive the Union's $15 initiation fee to attract members , no change was made in the monthly dues ($5 50 or $6 25) 25 This finding is based on Respondent's Exhibit 27, which is hereby re- ceived in evidence Also now received in evidence are Respondent's Exhibits 16, 17, and 18-rulings on admission of which were reserved at the hearing, these also bear on Union membership in various periods. 26 As noted, the above findings are based on Ellison's testimony I do not credit, however, his further testimony that he had agreed to help "get" the 623 4. The Union's meetings with Respondent during 1969 organizational drive 27 Within a week after takin over as Union business man- ager, Watford, accompaniedby his assistant (Hodges), went to the shipyard to see Company President Bender. After being shown around the yard, Watford had a "general" discussion with Bender. He mentioned that he was about to start "a membership drive," asking Bender's "cooperation in it," including a request that the Company take no repns- als for Union activity ; Bender agreed to "cooperate." Wat- ford advised Bender that thenceforth he "was goin^ to do all [he] could to enforce the contract for everybody.' When Bender said he "could not live with the contract" unless the Union organized his competitors , Watford answered that he would do all he could "toward organizing" other shipyards "but until that time ... as far as [he] was concerned, his contract was in effect." Bender testified that before the end of this first meeting, "I could see trouble brewing. A new business agent, a new broom, he was going to set the woods on fire. He did.1128 At the next meeting, there was another discussion of the contract, Bender again asserting that he "could not live" with it, mentioning the contract pay scale . To Bender's in- T iry as to whether he was also "trying to collect money for the nonmenbers," Watford said that he "represented ev- erybody ... in the yard that was not covered b7 another contract." Bender said that he "didn't think so.' Watford met with Bender and Ellison and talked with the latter by telephone many times thereafter. Prior to July 4, Watford took up with the two Company officials em ployee complaints about not receiving July 4 holiday pay. When told that the Union members would be paid this benefit if the Company is furnished "a list" of members , Watford said members only after Hodges had "threatened" to "shut us down if we didn't sign up more members" and that he complied with Hodges' request only "to keep peace " Nor do I credit his testimony attributing a subsequent similar "threat" to Union Business Manager Watford According to Ellison, during the 1969 Union drive Watford "threatened[ed] to shut us down to strike us" if Ellison "didn't give" the Union more members and, as a result of this threat, he stopped cooperating with the Union . I credit the testimony of Watford, a generally credible witness, that in his conversations with Ellison, presently to be described, he had not warned of any strike or shutdown if Respondent failed to assist the Union in obtaining additional members in the organizational drive inaugurated in June Watford credibly testified that he only asked Ellison "not to interfere with people that wanted to join the Union " I find that Ellison , voluntarily and in Company interest , heeded Hodges' request for assistance in obtaining members, to assuage a union which (as he admitted) was "causing no trouble " to Respondent and expect- ed little of it by way of enforcing the collective agreement As Ellison further admitted at one point, "it had worked in the past to relieve the pressure from the Union to give them a few men But when Mr. Watford got in, it didn't work that way He wouldn 't go along with that." According to Ellison , he had also "assisted" in signing up Union members "in the past" (i e , prior to June 1969), but he cited only one other instance in May 1968 (long before Watford came on the scene ) when, anxious "to cooperate" with the Union , he asked his foreman (Krebs) and the then steward (Yancey Johnson) to select two likely candidates Ellison paid the dues (also the initiation fees) of the two (Herndon and Fitzgerald) until they "dropped out" of the Union at or before the time Watford inaugurated the membership drive in June 1969 Respondent's Exhibits 19 through 23 (bear- ing on the question of Respondent 's cooperation and assistance in obtaining members for the Union in May 1968 and June 1969), admissibility of which into the record was reserved at the hearing , are hereby admitted 27 The findings in this section are based primarily on the credited testimony of Union Business Manager Watford , in part corroborated by Company Officials Bender and Ellison 28 According to Ellison, who also met Watford on that day , he and Wat- ford discussed the employees represented by the Union-Ellison claiming that the Union represented only the seven or eight members and Watford stating that he represented "everybody in this yard except the machinists and teamsters " 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "everybody in the yard was entitled to [this] pay be- cause ... they came under the boiler craft and was covered by the contract." When Bender remarked that Watford "could care less what happened to the non-Union mem- bers," the latter retorted "that that wasn't [the] way I seen it." Also discussed was the contract pension contribution requirement, Bender contending that he was obliged to make contributions only for Union members 29 As to overtime, Bender took the position that the contract re- quired double time on only ship repair (and not on new construction) work. When Watford asked where this dis- tinction appeared in the contract, Bender answered that he had an "oral agreement" to that effect. Watford insisted that Bender abide by the written agreement. The question of compliance with the contract also came up in subsequent discussions. In addition to subjects al- ready mentioned, the Union questioned the Company's wage scale. At one meeting, Watford took up the propriety of the Company's discharge of several employees. n t e last meeting between the parties prior to the September 17 strike (infra, sec. E), he questionedRespondent's refusal to restore to work an employee laid off for illness. In all discussions, Bender took the position that he "could not live up to the contract" unless the Union "organize[d] all the other shops," Bender once producing a fist of other shipyards located "practically all over the United States." 5. The Union's requests for bargaining information It is undisputed that the Union made several requests for information which Respondent failed or refused to supply. Even long before Watford became the Union's business manager, the Union (through its then business manager and secretary-treasurer, Wise) on August 5, 1968, wrote Respon- dent that the Local "continues to receive complaints" from employees that they were not receiving the contract "wages and benefits" to which "all employees in the bargaining unit" were entitled. "In order that [it] can intelligently deal with these complaints and grievances," the Union requested the names, job classifications, pay rates, and hiring dates of all employees "in the bargaining unit outlined in the labor agreement ... whether they are members of this Union or not." Receiving no response, the Union on September 11, 1968, again requested the described information. At the hearing, Bender claimed that he had orally advised International Representative Stave and Business Manager Wise that "it was company information and why should I give out my payroll and what we are paying." According to Bender, he was "never" told the "objective' of the Union's request for the information (although the Union's letters specify this). Later, he added that he had not supplied the information because the Union had refused to give him its membership list and because other employers also rejected similar Union requests. Still later, he said that he had told the Union that "they don't represent any majority" and that it spoke only for "a minute few boilermakers.' However, when pressed further as to whether he actually said that to the Union representative, he answered, "the proof is there. They still don't [represent a majority] .... It was quite obvious, wasn't it?' He finally conceded that he really "can't recall" whether he had said that to the Union. Nor could he "recall" whether he told the Union that it had represented "union members only," althouth he also testi- fied, "I'm sure I did. If I didn't, I meant to." I do not credit Bender's confusing and evasive testimony and find that the 29 Bender testified that he was willing to pay pensions for all Union mem- bers, whether working on ship repair or new construction. reasons advanced by him at the hearing for not furnishing the information requested in 1968 are afterthoughts, cloaked to cover an outright refusal to supply requested bar aining information. On May 20, 1969, International Representative Stave (then the International trustee in overall charge of Local 112) wrote to Bender for a list of all employees under the Union's jurisdiction, their classifications , rates of pay, and dates of hire, "so that we may properly represent the em- ployees coming under our jurisdiction.' On August 1, 1969, Watford followed up this request with a letter of his own, stating that the Union "continues to receive complaints" from employees that they are not receiving the "wages and benefits' provided in the contract for employees in the bar- ggaining unit. "In order that [it] can intelligently deal with these complaints and grievances ," the Union again request- ed the information specified in its previous May 20 letter. On August 21, 1969, Raymond Goetz, attorney for the Board of Trustees of the Pension Trust , wrote to Respon- dent, pointing to its "delinquency" in failing to make contri- butions to the trust fund as provided by the collective agreement and threatening legaraction. Respondent did not respond to the Union's requests. At the hearing, Bender testified that he had not supplied the information requested by Watford in meetings with Watford (including a list of employees on his payroll , their wage rates, and their job classifications) for the "single reason that [Watford] did not represent the people other than the union people." When asked why he also refused to heed Watford's request for the list of employees not paid the July 4, 1969 , holiday, he answered, 'I say no reason to give it to him," explaining that Watford had failed to reciprocate by furnishing him with a list of the Union's members. 6. Respondent's refusal to process grievances As previously noted (sec. D, 3), during the 1969 organiza- tionalp- campaign, stewards Perry Langley and John Lamey took various complaints and grievances from employees and reported them to the Union's officials (Watford and Hodges). On August 26, 1969, Watford wrote to Bender enclosing seven written grievances and requesting that he meet with him to process the complaints as provided in the collective agreement. The grievances related to wages, hol- iday pay, overtime pay, pension contributions, and safe working conditions. Respondent ignored the Union's re- quest. E. The Strike Employee McCammon, an assistant Union steward, testi- fied credibly that he and other employees, including stew- ards Perry Langley and Dixon, went to the Union hall on September 16, where it was decided among them and Union Business Manager Watford to strike the next morning, Sep- tember 17. Several days earlier, McCammon and Dixon attempted "to get Mr. Watford to strike," complaining to Watford that they "didn't feel that Bender was doing us right," specifically pointing to the Company's refusal to pay them "what he was supposed to on the contract." According to McCammon, 25 or 30 employees had talked to him prior to the strike, all indicating `they would honor our strike if we went out." Steward Perry Langley testified credibly that before the strike he received "a lot of complaints" concerning workin conditions which (as previously described, sujra, sec. D, 3) he turned over to Watford. At first, the Union decided to attempt to negotiate the grievances without resorting to BENDER SHIP REPAIR COMPANY 625 strike action. Later, Langley and other stewards and em- ployees got together and decided to strike because Bender was not abiding by the contract and he did nothing about their complaints. Langley corroborated McCammon's testi- mony that on September 16 a group of employees met with Watford and "decided that what we would-have to do is put up a picket line. "30 The next day (September 17), the Union put up a picket line with signs reading, "Bender Ship Repair Unfair to Boilermakers Local 112 and Refuse[s] To Live Up To Con- tract."3 t F. Conclusions Respecting Respondent 's Refusal To Bargain As indicated, Respondent and the Union have had long contractual relations , their latest collective agreement hav- ing been executed on March 2 , 1967, for 3 years (to March 2, 1970). The complaint alleges that prior to expiration of the agreement (since May 20, 1969; more particularly since August 1969), Respondent failed to meet its bargaining ob- ligations, in violation of Section 8(a)(5) of the Act, by ref- using to furnish the Union with requested bargaining information (a list of unit employees, and theirjob classifi- cations, hourly rates, and hiring dates); by failing to make contributions to the Union 's pension fund as required by the collective agreement ; and by refusing to meet with the Union to discuss employee grievances . The substantially undisputed evidence amply supports these allegations. It is clear that Respondent's conduct, as alleged, constitutes a violation of Section 8(a)(5) of the Act if, in fact, the Union was the majority representative of Respondent's employees in an appropriate bargaining unit .32 Respondent claims that the Union did not qualify as such representative either at the time of execution of the contract in March 1967 or when the alleged unfair labor practices were committed (June- August 7969), If further contends that the unit in which the Union claimed representation was not appropriate. At the hearing, Respondent also contended that the collective agreement was intended to apply and applied only to Union members, and, at that, only to those in Respondent's ship 30 Langley's and McCammon's accounts of the events leading to the strike are substantially supported by Watford. Company Vice President Ellison testified that the Union's representatives "told us we wasn't living up to the contract That was the reason [for the strike] " 3i Although Union Representatives Hodges and Watford testified that a majority of the employees honored the picket line on the first day of the strike , I do not credit their testimony on this point, it is evident that they did not know the identity of all unit employees. Nor do I credit Company Vice President Ellison's testimony in this regard since it was obvious that he strove to minimize the number of participants It is clear, however , that within a matter of days many strikers began to return to work , although some were still out at the time of the hearing. According to Ellison, his record of employees crossing the picket line on the third day of the strike (September 19) to pick up paychecks suggests that only 34 Union employees were still out on that date I do not regard this record sufficiently reliable to predicate a finding thereon as to the number of men on strike at that time. 32 For an employer's obligation to submit bargaining information, which, as here, is obviously relevant and necessary for the proper performance of the bargaining representative's duties to adequately represent unit employees and to administer a subsisting collective agreement, see e g., N.L.R B v Acme Industrial Co, 385 U.S,432, 435-436; N.L.R B v The Item Company, 220 F.2d 956 (C A 5) For failure to abide by a collective agreement , such as refusals to make pension or welfare payments, see George E Light Boat Storage, Inc, 153 NLRB 1209, 1219-20, enfd. on this point 373 F 2d 762, 767 (C A 5), Tormod Langemyr d/b/a/ Tom Carpentry Construction Co, 176 NLRB No. II That a refusal to meet and discuss employee grievances is an unfair labor practice, needs no citation See International Filter Company, I NLRB 489, 498-499. repair (as distinguished from new construction) operations. I now turn to these contentions; first, to the unit .nd con- tractual coverage issues. 1. The appropriate unit In its 1967-70 collective agreement, effective during the period here involved, Respondent stipulated that: The Employer recognizes the Union as the sole bar- gaining representative for all of its production and maintenance employees excluding office employees, professional employees, guards, and supervisors as de- fined in the Taft-Hartley Act, also machinists and teamsters who are already under contract for their craft jurisdiction. The record establishes (supra, sec. B) that although Compa- ny Vice President Ellison is in charge of ship repairs and Bender, Jr., of new boat construction, Company President Bender, Sr., has "final" control over production and mainte- nance in both;33 that transfers of employees from one type of work to another is not unusual; that a single personnel man interviews and hires job applicants (after clearance with Ellison and Bender, Jr.); and that all employees at Respondent's facilities work in the same areas (Yards 1, 2, 3, and 4). The record further establishes similar Company treatment of employees in regard to wages, hours, and working conditions (supra,sec. D, 2). Finally, "there is the significant fact of agreement between all the parties to the contract as to the appropriate bargaining unit... " N.L.R.B. v. Royal Oak Tool car Machine Co.,320 F.2d 77, 82 (C.A. 6). Considering the totality of all the circumstances, I find that the production and maintenance unit described in the 1967-70 collective agreement is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Contractual coverage Although at the hearing Respondent strenuously argued that the 1967-70 collective agreement was intended to cover and covered only Union members in ship repair (as distin- guished from new construction),34 it apparently has aban- doned this contention in its brief.35 In any event, the record does not support this contention. To begin with, the 1967 collective agreement clearly and unambiguously states that Respondent "recognizes the Union as the sole bargaining representative for all of its production and maintenance employees"; if a "members only" contract were intended it could readily have so stipulated. Moreover, Company Presi- dent Bender testified that as far as he knew all employees (Union and non-Union) were entitled to certain benefits; i.e., wages and holidays. And Company Vice President Elli- son testified that he made no distinction in his department (ship repairs) between Union and non-Union men, indica- ting that the latter were accorded the contract benefits if they were qualified and "regular" employees whom Re- spondent intended to retain. Finally, the documentary evi- dence (Respondent's payroll and other records) shows no distinct pattern of different treatment as between Union and non-Union employees, and as between ship repair and 33 "Outside work" or "field construction" work is admittedly nonunit work 34 See supra, sec. D, 2 35 As hereafter shown (sec. F, 3, d), Respondent now contends that the terms of the collective agreement were not applied to all employees in the bargaining unit and, therefore, that the agreement cannot constitute "a bar" to a redetermination of the Union's representative status under the doctrine laid down by the Board in Shamrock Dairy, Inc, 119 NLRB 998. (See Resp. br., pp. 18-25.) 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new construction employees. (See supra, sec. D, 2.) Accordingly, I find that the record does not establish that the 1967-70 collective agreement was a "members only" agreement covering only Union members in ship repair. To be sure, the record discloses that Respondent did not apply the contract terms to all of its employees in the bargaining unit-presumably because, as Company President Bender indicated at the hearing, he felt it unprofitable to do so. It is also clear that for a considerable period-the first 17 of the 36-month contract-the Union neglected to hold Re- spondent to its commitments.36 These circumstances only demonstrate possible maladministration, not nonexistence, of a unitwide collective agreement. Cf. Luigi Ferraioldi d/b/a Hess Service Station, 165 NLRB 423, 414-425. 3. The Union's majority status a. Introduction At the hearing, General Counsel relied on the doctrine of contractual presumption enunciated in Shamrock Dairy, Inc., 119 NLRB 998, enfd . 280 F .2d 665 (C.A.D.C.), to establish the Union's majority status. In Shamrock, the Board held that the signing of a collective agreement desig- nating a union as exclusive representative raised a "rebutta- ble presumption" that it was the majority representative when the contract was signed and that it continued to enjoy that status during the life of the collective agreement. Gen- eral Counsel also urged that Respondent was foreclosed from attacking the Union's majority on a theory akin to estoppel. According to General Counsel, by attempting to "confess" to executor an illegal minority contract , Respon- dent was seeking to `profit' from its ` own wrongdoing." Construing Shamrock as permitting Respondent to adduce evidence to rebut the presumption that the Union was ma- jonty representative when the 1967 agreement was execu- ted, I overruled General Counsel's objections and permitted Respondent to litigate the majority issue.37 In doing so, however, I called to the parties' attention a decision just then handed down by the Sixth Circuit Court in N.L.R.B. v. District 30, U.M. W., Local 8280, etc. (Blue Diamond Coal Co.), 422 F.2d 115, upholding the Board 's position that the 10(b) time-limitation proviso barred the respondent in that case from litigating the representative status of a union when the collective agreement was executed ; the court there held that the bargaining and contractual relationship, en- tered into between an employer and contracting union in the pre- 10(b) statutory period, was immune from the claim that it was unlawful because the union was a minority un- ion. (See infra, sec. F, 3, b.) In his brief (p. 39), General Counsel renews his position that the "statutory representa- tive authority of the Union is herein established by the 1967 contract and that written agreement is not subject to attack byy the Respondents at this point." He relies both on the Shamrock doctrine and the 10(b) limitation proviso, con- tending (br., p. 45) that "a contract whose inception cannot be reached . . . because of 10(b) limitation and which is prima facie legal, thereby carrying, during its duration, the presumption of majority status accorded by the Shamrock doctrine, is conclusive proof of the signatory union's maJon- ty representative status during the term of the contract." 36 As noted (supra, sec D, 5), in August 1968, the Union wrote to Respon- dent, complaining about its failure to live up to the contract in regard to "wages and benefits" to which "all employees in the bargaining unit were entitled." 37 The Board on February 6 denied General Counsel's request to appeal from this ruling, without prejudice to reraising it by exception Respondent agrees that Shamrock is applicable, but con- tends (br., p. 15) that "there is abundant evidence to rebut any presumption" that the Union was at any time material (in March 1967 and since May 1969) the majority represent- ative of its employees. It also contends that Shamrock itself recognizes that the presumption may be applied only where the existing collective agreement is not "a bar to a redeter- mination of [the Union's] bargaining status" (119 NLRB at 1002), asserting that the 1967 agreement was not such "bar" here because it was not sufficient to stabilize the bargaining relationship of the parties. As to Section 10(b), Respondent claims (br., 30) that the proviso does not preclude it from raising the dp.efense of invalidity of the Union's initial recog- nition, since that section "was not designed to enable a minority union to enforce a collective bargaining agreement through an unfair labor practice proceeding against an em- ployer who, along with the Charging Party, may have violat- ed the Act in executing and administering the agreement." After careful consideration of e a r rguments resented, and further study and analysis of relevant precedent, I find and conclude: (1) that Section 10(b) of the Act precludes Respondent from challenging the representative status of the Union in March 1967 (when it executed the collective- bargaining agreement recognizing the Union as the exclu- sive representative of its employees in a described bargain- ing unit) and during the term of the collective agreement prior to the 6-month statutory period (i.e., February 11, 1969); (2) that Respondent did not by clear and objective evidence rebut the presumption of the Union's continued majority status during the 6-month limitation period; and (3) that, contrary to -Respondent's contention, under the Board's contract bar" rules, the 1967-70 collective agree- ment was sufficient to bar a redetermination of the Union's representative status during the term of the agreement. I turn to these contentions. b. The Union 's representative status at the time of execu- tion of the 1967 collective agreement,- the 100) time- limitation proviso In attempting to show that the Union did not represent a majority of its employees in March 1967, when it recogniz- ed the Union "as the sole bargaining representative" of its employees in the contract-described unit, Respondent is in effect urging that it violated Section 8 (a)(2) and (1) of the Act by recognizing a minority union. However, Section 10(b), which provides that "no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge ," precludes such findin . This is the teaching of the Supreme Court's Bryan case,3 where the Court held that although a union and employer signed a collective agreement when the Union represented only a minority of the unit employees, Section 10(b) barred a finding that the continued enforcement of the agreement (within the 6-month statutory period) was unlawful. Concluding that the "entire foundation of the unfair labor practice charged was the Union's time-barred lack of majority status when the original collective bargain- ing agreement was signed" (362 U.S. at 417), the Court (through Justice Harlan) stated (362 U.S. at 419): Where, as here, a collective bargaining agreement and its enforcement are both perfectly lawful on the face of things, and an unfair labor practice cannot be made out except by reliance on the fact of the agreement's original unlawful execution, an event which, because of limitations , cannot itself be made the subject of an 31 Local Lodge No 1424, I A M, AFL-CIO (Bryan Mfg Co ) v. N.LR B, 362 U S 411 BENDER SHIP REPAIR COMPANY unfair labor practice complaint, we think that permit- ting resort to the principle that § 10(b) is not a rule of evidence, in order to convert what is otherwise legal into something illegal, would vitiate the policies under- lying that section. These policies are to bar litigation over past events ... and of course to stabilize existing bargaining relationships. In giving effect to these policies, the Court did not ignore the competing statutory policy of assuring employees "free- dom of choice" and the right to an uncoerced ma ority representative; it specifically said that "the accomodation between these competing factors has already been made by Congress." (Id. at 428.) Bryan thus stands for the proposition that a union's repre- sentative status and its contractual relationship with an em- ployer created during the pre-10(b) period may not be challenged in order to establish the commission of an unfair labor practice within the 10(b) period. The Board has since held that such a challenge may likewise not be made by a respondent to establish its defense to an unfair labor practice committed within the 10(b)period. Thus, in Roman Stone Construction 39 and subsequent cases,40 the Board has con- sistently applied Bryan in 8(b)(7) recognition picketing pro- ceedings, refusing to permit a respondent (picketing) union to invoke the defense that a rival currently recognized union did not represent a majorit when it achieved recognition and signed an agreement, where this claim of unlawful bar- gainmg relationship is otherwise time-barred. As the Board put it in Roman Stone (153 NLRB at 659, fn. 2): We agree with the Trial Examiner's ruling that Re- spondent was not entitled, in the circumstances present here, to attack the validity of the Company's recogni- tion of Local 1175 [the contracting union] by litigating Local 1175's representative status as of the time recog- nition was initially conferred in the early 1950's, during the term of the subsisting agreement, or when that contract was executed in July 1963. It is apparent that Local 1175's representative status could not be chal- lenged directly in a proceeding under Section 8 or 9 of the Act. The subsisting contract between Local 1175 and the Company is [awful on its face. . . . As the contract is of reasonable duration, the contract-bar rules would preclude interference with the existing rela- tionship by a representation petition under Section 9(c).... Further, Section 10(b) would bar an unfair labor practice complaint attacking Local 1175's repre- sentative status as of the time the present contract was executed; Local Lodge No. 1424, International Associa- tion of Machinists v. N.L.R.B. (Bryan Manufacturing Company), 362 U.S. 411. Finally, in accordance with established principles, the validity of Local 1175's con- tinued recognition would not be affected by loss of majority within the 3-year term of the present agree- ment ; Shamrock Dairy, Inc., et al., 119 NLRB 998, 1002. In Blue Diamond Coal Co.,'" the Sixth Circuit recently af- firmed the Board's application of Bryan in 8(b)(7) cases such as Roman Stone, Rejecting there a respondent union's (UMW) claim that it was entitled to adduce evidence of pre-10(b) events to establish illegality of the bargaining rela- tionship between the employer and contracting union 39 International Hod Carriers, etc, Local 1298 (Roman Stone Construction), 153 NLRB 659. 40 See District 19, UMW (Seagraves Coal Co), 161 NLRB 1582, 1587, In 7, Local No 7463, UMW (Harlan Fuel Co), 160 NLRB 1589, 1590, In 1, Local No 8280, UMW, District 30 (Blue Diamond Coal Co), 166 NLRB 271, 272, enfd. 422 F.2d 115 (CAD C ) 41 N.L.R B v. District 30, UMW, Local 8280 (Blue Diamond Coal Co ), 422 F 2d 115 627 (SLU) during the 10(b) period, the court held (422 F.2d at 122): The Supreme Court announced a rule in Bryan Mfg. which prevents the resurrection of legally defunct un- fair labor practices in the guise of evidence and the resultant subversion of the policies promoted by the limitations proviso of section 10(b). To permit respon- dents to invoke the company's putative unfair labor practices in this case as a defense to the unlawful pick- eting charge would be directly contrary to this rule. During the six-month period preceding the filing of the charges which spawned the present litigation, the SLU was, in the absence of any reference to events which occurred prior to the six-month period, the law- fully recognized representative of the employees at Blue Diamond's Leatherwood No. 1 mine. Moreover, the SLU had signed a three year contract, which was valid on its face, approximately seven months before it filed charges and therefore, under the Board's contract- bar rules, its representative status was not then subject to challenge under Section 9 of the NLRA. According- ly, the picketing by the members of the UMW, was "tin the face of things," illegal under Section 8(b)(7)(A); and only, by establishing the existence of earlier, time- barred unfair labor practices could the UMW infuse with legality this otherwise illegal conduct. Thus, respondents seek to do more than merely clari- fy the nature of events which transpired within the limitations period. They seek to litigate the legality of conduct engaged in by Blue Diamond prior to the lim- itations period and, if successful, to invoke this conduct as a defense to the unlawful picketing charge. It is precisely this type of circumvention of the policies un- derlying section 10(b) which the Supreme Court con- demned in Bryan Mfg. Cf. N.L.R.B. v. Houston Maritime Association, Inc., et. al., Local 1351, 426 F.2d 584, 587 (C.A. 5). The parties have cited no decided cases, and my inde- pendent research uncovered none, in which the Board has applied the Bryan doctrine to a defense in an 8(a)(5) pro- ceeding.42 There is no reason in principle why the represent- ative status of a contracting union should be immune from challenge under Section 10(b) in an 8(b)(7) proceeding, and not in an 8(a)(5) proceeding. In both situations the defense to the charged unfair labor practice turns on whether or not the pre-10(b) collective agreement was unlawfully executed. To litigate that issue in a case like this one would require the Union here to dredge up material and adduce evidence of events transpired in years past-a requirement inconsistent with the Congressional objective "to bar litigation over past events `after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,' H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of course to stabilize existing bargaining relationships." Bryan, 362 U.S. at 419 (footnote omitted). Moreover, it should be borne in mind that in questioning the Union's representative status, Respondent is in effect attempting "to vindicate the rights of his employ- ees" as distinguished from its own. See Ray Brooks v. N.L.R. B., 348 U.S. 96, 103.43 As the Sixth Circuit concluded in Blue Diamond Coal Co., supra, the Congressional policy to pro- mote stability in bargaining relationships, as expounded in Bryan, dictates that a defunct unfair labor practice be bar- 42 While the issue was raised in Ace-Doran Hauling & Rigging Co, 171 NLRB No 88, the Board found it unnecessary to pass on it 43 See also N L R B v National Mineral Co, 134 F 2d 424, 426-427 (C.A. 7); N.L R B v. Kress & Co, 194 F 2d 444, 445 (C A 6), NLRB v Hurley Company, Inc, 310 F 2d 158, 160, In 5 (CA 8) 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD red "as a shield when section 10(b) barred its use as a sword." 422 F.2d 120. Nor do equitable considerations compel a different result. As Generar Counsel stresses, Respondent is asserting its own illegal action-recognition of a minority union and 8(a)(2) illegal assistance-as a defense to its refusal to bar- gain. If the Union had indeed been a minority representa- tive when accorded recognition in March 1967, Respondent would be allowed to profit from its own wrongdoin . Cf. General Teamsters Local Union No. 324 (Cascade Employers Association, Inc.), 127 NLRB 488, 497. As hereafter pointed out in discussing the Judicially approved Board's "contract bar" rules (sec. F, 3, d), absent extraordinary circumstances, entry into a collective agreement for a reasonable period (such as 3 years in this case) fixes the contracting union's representative status for the term of the agreement, during which the union's status may not be put in issue. "Congress thought it conducive to stability of labor relations that par- ties be required to live up to a valid . . . contract made voluntarily with the recognized bargaining representa- tive ... " (Colgate-Palmolive-Peet Co. v. N.L.R.B., 338 U.S. 355, 364). Furthermore, as shown (infra. sec. F, 3, c), there is no evidence that any employees here have opposed repre- sentation by the Union, nor that they have conveyed such opposition to Respondent. More importantly, the Union's representative status is not a permanent one and is subject to appropriate challenge, such as upon expiration of the contract term. (See infra, sec. F, 3, c.) Based on all of the foregoing, I find and conclude that Section 10(b) precludes Respondent from challenging the validity of its recognition of the Union "as the sole bargain- ing representative for all its production and maintenance em 111o ees" in the appropriate unit, as it undertook to do in its 1967-70 collective agreement with the Union; and, sim- ilarly, that it is foreclosed-prior to commencement of the 6-month statutory period (i.e., February 11, 1969)-from attacking the Union's continued majority or representative status during the term of the collective agreement. (See infra, secs. F, 3, c and d.) c. The Union's representative status during the 6-month limitation period, including the times of refusals to bargain As already indicated and presently explained more fully (sec. F, 3, d), under the Board's "contract bar" rule the representative status of a union is immune from attack dur- mg the term of the collective agreement, absent unusual circumstances. Respondent contends : (1) that, in the cir- i tmstances of this case, the 1967-70 collective agreement is not immune from challenge under the contract-bar rules; and (2) that the evidence it adduced on the Union's repre- sentative status casts sufficient doubt on the Union 's major- ity status in the 6-month statutory period , so as to put the burden on the General Counsel to establish the Union's majority status at the time of the refusals to bargain . I first turn to the latter contention. In Shamrock Dairy, supra, 119 NLRB 988, the Board held that a contracting union is entitled to recognition during the life of the collective agreement . Reaffirming this doctrine in later cases, the Board has stated that "So long as the con- tract is in effect, the presumption of continuing ma only is virtually conclusive." United Aircraft Corporation Pratt & Whitney Division), 168 NLRB No. 6 . See also West Subur- ban Transit Lines, 158 NLRB 794, 798 ; Valleydale Packers, Inc., 162 NLRB 1486, 1491 , enfd. 402 F.2d 768 (C.A. 5). And this presumption is given effect whether or not the original bargaining relationship arises out of a certification. Valleydale Packers, 162 NLRB at 1492 . Cf. N.L. R.B. v. Mas- ter Touch Dental Laboratories, Inc., 405 F.2d 80, 82 (C.A. 2), enfg. 165 NLRB 585. Indeed, the presumption applies to a successor-employer on whom the predecessor's collective agreement is binding. Valleydale Packers at 1491-92. The employer's duty to recognize a union during the term of a collective agreement does not, of course, impose an "obliga- tion to bargain collectively with [the union] as to any future contracts." Duralite Co., 132 NLRB 425, 427 . After expira- tion of the agreement the union's majority, although still presumed, may be overcome by a clear showing that the union no longer enjo s.majonty support or that the employ- er entertains a good-faith doubt concerning its continued majority. See N.L.R.B. v. Gulfmont Hotel Co., 362 F.2d 588, 589 (C.A. 5); Terrell Machine Company v. N.L.R.B., 427 F.2d 1088, 1089 (C.A. 2); Stoner Rubber Company, Inc., 123 NLRB 1440, 1445. See also Ray Brooks v. N.L.R. B., 348 U.S. 96, 101-102. Manifestly, the good-faith doubt "must be based on objective considerations and it must not have been raised in the context of illegal antiunion activities." Bur- roughs Corporation, 180 NLRB No. 72. See also N.L R.B. v. Gul ont, supra; N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091 (C.A. 8). Under Board law, the burden is upon the employer to rebut the presumption of representative status which a con- tracting union enjoys during the life of a collective agree- ment, lawful on its face ; and 'this "virtually conclusive" presumption may be overcome only by clear objective evi- dence, a showing of good-faith doubt concerning such sta- tus being insufficient." See Ref-Chem Company and El Paso Products Co., 169 NLRB No. 45 ; Duralite Co., supra, 132 NLRB 42545 The underlying rationale for this rule, as ex- pressed in Shamrock, rests on the strong Federal policy to preserve stability in bargaining relationships established by the parties themselves in a valid collective agreement, thus promoting the interests of industrial .peace. Admittedly, Re- spondent adduced no affirmative evidence to show that any employees, let alone a numerical majority in the unit, op- posed Union representation during the 6-month statutory period (i.e., since February 11, 1969), including the time when the charged refusals to bargain took place (June- August 1969). While it did adduce some evidence tending to cast some doubt as to the Union's continued majority in this period, this evidence is not sufficient , under the decided 44 Even if such good-faith doubt were a defense in this case , it is extremely doubtful that Respondent could avail itself of it in view of its extensive anti-Union campaign in response to the Union's request to bargain and honor the collective agreement . This conduct is tantamount to "an absolute refutation of any good-faith doubt on part of the company " N L.RB. v Overrate Transportation Co, 308 F 2d 279, 283 (C.A 4)) "The very fact that the Employer engaged in such flagrant and continued misconduct direct- ed toward [the union] as the employees' bargaining representative betrays the Employer's belief that a real question of representation existed Otherwise there was little purpose behind the Employer's strenuous efforts" to under- mine the union (N L R B v. Midtown Service Co , Inc., 425 F.2d 665, 667 (C A. 2)) See also General Electric Company v N L R. B, 400 F.2d 713, 728 (C A. 5) 45 In denying enforcement in Ref-Chem (418 F.2d 127), the Fifth Circuit approved the Board's doctrine of contractual presumption announced in Shamrock, but "doubt[ed] that in all the circumstances of this case" the Board could "insist upon a heavy burden of clear and convincing evidence to overcome the presumption" (418 F.2d at 130), the court also retied on the fact that under Section 8(f) of the Act (applicable to the construction indus- try) the employer in Ref-Chem could lawfully have signed the collective agreement even "without proof of majority representation" (418 F.2d at 131) To the extent that the Board and court differ on the burden of proof applica- ble in cases of this type, I must, of course, follow the Board rule "[I ]t remains the Trial Examiner's duty to apply established Board precedent which the Board or the Supreme Court has not reversed." Lenz Company, 153 NLRB 1399, 1401 , The D & M Company, a Division of the Baldt Corp., 181 NLRB No 33 BENDER SHIP REPAIR COMPANY Board cases, to overcome the Union's majority status pre- sumption. Thus, as it claims, Respondent established that the Union had only a few members at the time of the refus- als to bargain 46 However, it is settled that "a showing as to employee membership in, or actual financial support of, an incumbent union is not the equivalent of establishing the number of employees who continue to desire representative by that union. ' Terrell Machine Company, 173 NLRB No. 230. "Manifestly ... many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of its representation," particularly where, as here, the State has a 'right to work' law. Terrell Machine Company v. N.L.R.B., 427 F.2d 1088 (C.A. 4), enfg. 173 NLRB No. 230. Similarly, the fact that less than a majority of its employees may have honored the Union's September 17 strike call (supra, sec. E) is far from determinative. See N.L.R.B. v. Burke Machine Tool Co., 133 F.2d 618, 620-621 (C.A. 6). Cf. N.L.R.B. v. Master Touch Dental Laboratories, Inc., 405 F.2d 80, 83, fn. 5 (C.A. 2). Failure of employees to go out on strike may be based upon a variety of personal reasons wholly unrelated to union opposition. For one thing, lost wages might make the strike too costly and bur- densome. Moreover, evidence as to an alleged lack of ma- jority in September (the strike period) "could not have been material on the question of majority representation at the time of the refusal to bargain [June-August]" and "[a]ssum- ing loss of majority representation [in September] ...such loss could not be separated from the unfair labor practices ... [which] should be remedied by affording the employees an opportunity to restore the status quo." Burke Machine Tool Co., supra, 133 F.2d at 621. To be sure, there is evidence that the Union failed to represent unit employees effectively during part of the 6- month statutory period. Thus, the record shows that prior to the June 1969 membership drive, some unit employees were not even aware of the existence of the 1967-70 collec- tive agreement; and some were under the impression that Union membership was a prerequisite to entitlement of con- tract benefits-although this was not the fact since Respon- dent granted the benefits to non-Union as well as Union men, pretty much as it chose. However, it is clear that with the advent of a new Union business manager (Watford) on the scene in June 1969, the Union vigorously attempted to enforce the contract on behalf of all unit employees, at- tempts rebuffed by Respondent. Moreover, if a majority of the employees no longer wanted Union representation, it was up to them to disavow the Union's bargaining authori- ty. Evidence of dissatisfaction with a collective-bargaining representative should properly come from employees them- selves and not from the employer allegedly on their behalf, particularly where, as here, the employer engaged in mas- sive acts of interference, restraint, any coercion to under- mine the bargaining representative (supra, sec. Q. As the Supreme Court has said, in answer to an employer's conten- tion that "whenever ... presented with evidence that his employees have deserted their certified union, he may forth- with refuse to bargain" (Ray Brooks v. N.L.R.B., 348 U.S. 96, 103): In effect, he [the employer] seeks to vindicate the rights of his employees to select their bargaining representa- tive. If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. If an employer has doubts about his duty to 46 As previously noted (secs A and D, 3), while the Union had only 8 or 9 members before June 1969, it signed up 68 more during the June-Septem- ber membership drive. 629 continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indi- cation that his claim has merit. Although the Board may, if the facts warrant , revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Hoard ; they do not justify employer self-help or judicial intervention. [Footnotes omitted,] See also N.L.R.B. v. Sanson Hosiery Mills, Inc., 195 F.2d 350, 352 (C.A. 5). The Board has held that even some illegal terms in a contract "do not justify [the employer] in resort- ing to self-help by withdrawing recognition from [the con- tracting union] during the term of [the] contract." Durahte Co., 132 NLRB 425, 427, fn. 3. In attempting to show in this proceeding for the first time that the Union was not the "uncoerced" majority represent- ative, Respondent also relies on "assistance" it at one time allegedly gave the Union in signing up members. However, Respondent cites only one such instance within the 10(b) period. It will be recalled (supra, sec. D, 3) that in June 1969 Company Vice President Ellison,jointly with the then union steward (Yancey Johnson), selected three employees for Union membership, Ellison inducing them to join by payin their initiation fee. While the steward obviously knew of Ellison's role in the incident, there is no credible evidence that Business Manager Watford (and even his assistant, Hodges, who requested Ellison's cooperation to obtain members) did; Hodges specifically denied knowledge. I do not regard this single act of assistance , within the 10(b) period, sufficient to stamp the Union as an assisted labor organization, defeating its eligibility to represent the em- ployees. Cf. Duralite Co., Inc., 132 NLRB 425, 427; Arden Furniture Industries of Pennsylvania, Inc., 164 NLRB 1163. I am mindful of the fact that throughout the membership drive, the Union (through Watford) tenaciously pursued the contractual rights of the employees; Ellison himself ac- knowledged that Watford "wouldn't go al on " with his al- leged pervious help in signing up members supra, fn. 27). Moreover, since Respondent itself was involved in the alleg- ed unlawful assistance , it would appear to be estopped from asserting it to its own advantage . For, "a party may not assert misconduct in which it participated as a defense to actions otherwise in violation of the Act." Meat and Prov- ision Drivers, Local 626, IBT (Washington Rendering Compa- ny), 126 NLRB 572, 573-574. See also Underwood Machinery Co., 74 NLRB 641, 643, fn. 61, enfd. 179 F.2d 118, 121 (C.A. 1)47 47 Respondent relies (br, p. 16) on one other circumstance to show that the Union was not the uncoerced majority choice of its employees , but this dates back to March 1967, outside the 6-month statutory period Respondent introduced in the record a copy of a collective agreement it had with the Mobile Trades Council and a group of international unions (including the one with which Local 112 is affiliated), which purportedly ran from June 1, 1966, to May 31, 1967 It contends (br, p 16) that in view of the existence of that agreement in March 1967 (when it executed the Local 112 agreement) "[w]e may not indulge in the presumption that Bdilermakers Lodge 112 represented an uncoerced majority," nor "indulge in the presumption that Bender Welding did not violate Section 8(axl), (2) and (5) of the Act by entering into the Shop Agreement on March 2, 1967 " Respondent again goes to great length to establish 8(a)(2) assistance as a defense to an 8(a)(5 ) charge. However, apart from the fact that a pre-10(b) incident is involved , it is not clear that the Trades Council agreement applied to work covered by the Local 112 contract Thus, according to Company Vice President Ellison, that agreement was generally used to obtain help for "outside construction" or field work, concededly nonunit work ; in addition to work "on the jobsite" (which for ought that appears means work away from the shipyard), the Trades Council contract covered the work of crews on sea trips (art 17), and there is no credible evidence that the Trades Council contract was not re- voked before March 1967, or, if not revoked, that it remained operative and in force in March 1967. Furthermore, it is fair to assume that rior to the (Continued) 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find and conclude that Respondent did not overcome the presumption of the Union's continued majority status which, as the contracting Union, it enjoyed throughout the life of the agreement, including the 10(b) period. The inev- itable inference to be drawn in this case is that Respondent seized upon the majority issue as an afterthought to avoid its contractual obligations when called upon to meet them. Although entirely content to recognize the Union as long as it refrained from enforcing the collective agreement, Re- spondent vigorously fought it after the Union's new repre- sentative (Watford) insisted that it adhere to it in June 1969. As Company President Bender testified, after his first meet- ing with Watford, he "could see trouble brewing." A "new Broom" came on the scene, forcing adherence to the re- qirements of the collective agreement to which Respon- u dent was a signatory party. Bender feared-in his own words-that Watford "was going to set the woods on fire." This Respondent would not countenance, and, as found (supra, sec. C), it set out to thwart the Union's membership drive (designed to strengthen its dealings with Respondent) by systematic and pervasive acts of interference, restraint, and coercion.' d. Respondent's "contract bar" contention The Board's "contract bar" rules, like the Shamrock doc- trine and the 10(b) time-limitation proviso, are designed to effectuate the strong Congressional objective to stabilize established contractual relationshi s 49 Briefly stated, under these rules the Board will not direct an election (under Section 9(c) of the Act) to redetermine a contracting union's representative status during the term of a collective agree- ment absent extraordinary circumstances, as, for example, where the contract is illegal and contrary to public policy, or where the contracting union has become defunct or lost its identity and no longer can effectively represent the bar- gaining unit. 50 To serve as a bar to a redetermination of representative status, the outstanding contract "must be in wntmg, properly executed, and binding on the parties ... must be of definite duration and in effect for no more than effective date of the 1967-70 collective agreement with Local 112 (March 2, 1967), it was the preceding (1964-67) agreement with Local 112 (and not the 1966 Trades Council contract) that governed the relations between Respon- dent and the Union vis-a-vis the particular bargaining unit involved in this case (supra, In 15) Under all the circumstances, I shall not presume the unlawful employer assistance urged by Respondent " Rather we [must] pre- sume that the Respondent acted lawfully and that the Union, which had been the recognized bargaining representative of the Respondent's employees since [at least 1961], had majority status at the time of the execution of the [1967] contract." Shamrock Dairy, supra, 119 NLRB at 1002. 48 Respondent's contention (br., p. 11) that "The General Counsel is not seeking to enforce Section 8(aX5), but is seeking to enforce what purports to be a collective agreement between Boilermakers ' Local 112 and Bender Welding"-a procedure available to the Union under Section 301 of the Act, governing "violation of contracts"-does not merit extended comment As the Supreme Court said in N L.R B v. Great Dane Trailers, Inc., 388 U S 26, 30-31, fn 7, "The fact that the conduct complained of might have also supported an action under Section 301 did not deprive the Board of lunsdic- tion." See also N LRB. v. Tom Johnson, Inc., 378 F.2d 342, 343 (C A. 9). George E Light Boat Storage, Inc, 153 NLRB 1209, In I, modified on other grounds 373 F.2d 762, 767 (CA. 5). 09 See, e.g., Thirty-third Annual Report of the National Labor Relations Board (1968), pp. 40-41, Appalachian Shale Products Co, 121 NLRB 1160, 1161. 50 See, e.g., Paragon Products Corporation, 134 NLRB 662, Local 1545, Carpenters v. Vincent, 286 F.2d 127, 132 (C A 2) In Paragon Products the Board pointed out that since "[c]ontracts established the foundation upon which stable labor relations usually are built," "postponement of the right to select a representative is warranted for a reasonable period of time" (134 NLRB at 663.) a `reasonable period'; and ... must also contain substantive terms and conditions of employment which in turn must be consistent with the policies of the Act." Thirty-third Annual Report, NLRB supra, fn. 50. There is no question that the 1967-70 collective agree- ment, in effect during the period here involved , was a valid and binding instrument, that the 3 -year term of the agree- ment was of "reasonable" duration, and that it contained the usual terms and conditions of employment found in collective agreements.51 Nor is the Umon defunct; on the contrary, as we have seen, during the period here involved (June-August 1969) it has strenuously sought to represent all of the unit employees only to be met by Respondent's refusal to recognize and deal with it. Respondents conten- tion that the 1967-70 agreement did not bar a redetermina- tion of the Union's representative status during the contract term rests lar ely on its claim that "substantive terms and conditions of employment" prescribed therein were not uniformly applied to unit employees, stressing that there were significant deviations from the contractual provisions on wages, overtime pay, paid holidays and vacations, etc. (Resp.br., p. 23.) Respondent relies on representation cases such as Raymond's Inc., 161 NLRB 838, 840, where the Board stated, "Where ... the only written document does not contain the current terms and conditions of employ- ment and, to the contrary, embodies substantial terms which have since been abandoned by the parties, we cannot honor that contract as one imparting sufficient stability to the bargaining relationship to justify our withholding a pres- ent determination of representation." I do not agree. To begin with, it is clear that to the extent to which the collective agreement did not reflect the "cur- rent terms and conditions of employment," it is not because the parties mutually agreed to "abandon" the written terms or orally altered them, as apppparently was done in Raymond's (161 NLRB at 839-840). See Luigi Ferraioldi d/b/a Hess Service Station, 165 NLRB 423, 425, fn. 4. All that here appears is that Respondent unilaterally chose to apply the contract terms at whim, to whomever it chose-to the Un- ion or non-Union employees and to the shop repair or new construction employees in the unit (supra, secs. D, 2 and F, 2). There is no evidence that the Union agreed to these departures from the contract or that it relinquished or waived its rights under it;52 nor even that Respondent itself renounced the contract. The most that can be said is that the Union was lax or derelict in seeking to hold Respondent to its contractual commitments . As a result, some employ- ees were unaware of the existence of the agreement; and others assumed (contrary to fact) that only Union members were receiving the contract benefits. It is clear, however, that as far back as August 1968, the Union had attempted to enforce the contract for the benefit of all unit employees, only to be rebuffed by Respondent.53 The Union fared no better in May and August 1969, when it was again rebuffed. Si The contract clearly describes the bargaining unit, and its 20 articles and two appendices contain detailed provisions fixing wages, hours of employ- ment, overtime pay, paid vacation, pensions, etc, in addition to other clauses governing the relationship between the parties (e g., the role of union stew- ards, union access to the shipyard, agency shop) 52 Cf. Hess Service Station, supra, N L R B v Teamsters, etc, Local 901 (Valencia Baxt Express, Inc), 314 F 2d 792, 795 (C.A 1) 53 It will be recalled (supra, sec D, 5) that on August 5, 1968, the then Union representative (Wise) wrote the Respondent that the Local "continues to receive complaints" from employees about not obtaining the contract "wages and benefits" to which "all employees in the bargaining unit" were entitled, Respondent refused to furnish the Union with information which the letter requested in order that the Union "can intelligently deal with these complaints and grievances " On September 11, 1968, the Union again re- quested the described information, but without success. BENDER SHIP REPAIR COMPANY Under all the circumstances, I find and conclude that the 1967-70 collective agreement was an effective bar to a re- determination of the Union's representative status during the term of the agreement.54 This is not to say, however, as already observed, that Respondent is precluded from rais- ing the question of the Union's majority status, at an appro- pnate time in an appropriate way. It is to say that Respondent was under a legal obligation to recognize and bargain with the Union until the expiration of the agree- ment. I so find. 55 G. Conclusions Concerning the Nature of the Strike As found, Respondent did not fully abide by the subsist- ing 1967-70 collective agreement as to wages and fringe benefits such as holidays and vacations , applying its terms only to some of the unit employees . Respondent also re- fused to process written grievances submitted by the Union on behalf of unit employees . Nor did Respondent furnish the Union with requested bargaining information concern- ing such vital and relevant matters as hourly rates and job classifications. As further found (sec. E), the employees and Union stewards were deeply concerned about Respondent's failure to abide by the agreement and to rectify their com- plaints concerning working conditions. They met and dis- cussed the matters with Union Business Manager Watford and decided to picket the shipyard on September 17, 1969. It is well settled that a strike caused in whole , or in part, by an employer's unfair labor practices is an unfair labor practice strike and the strikers are entitled to reinstatement upon application, even if to do so requires the employer to discharge the strikers' replacements. Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270, 278; N.L.R.B. v. Safeway Steel Scaf- folds Company, 383 F .2d 273 , 280-281 (C.A. 5). Having found that Respondent's conduct constituted unfair labor practices, I find and conclude that the strike , from its incep- tion on September 17, was precipitated by Respondent's unlawful actions . The fact that the strike may have been motivated , in part, by economic objectives did not prevent it from being an unfair labor practice strike , so long as 54 In addition to Raymond's supra, Respondent relies heavily on Silver Lake Nursing Home, 178 NLRB No. 71, to show that the 1967-70 agreement was not a bar That case is distinguishable . In holding that an existing agreement between a union and a multiemployer group did not bar an election sought by a rival union in a single-employer unit, the Board stressed that although the employer in that case agreed to be bound by the multiemployer contract, there was no "unequivocal intent on its part to be bound by the action of the multi-employer group," that the contracting union "granted the Em- ployer an individual exemption from a number of the [contract] require- ments" at the outset of their relationship , that "thereafter until the time the petition was filed, the [union] continued the Employer's individual exemption from many of the provisions of the contract" so that "the Employer-with the acquiescence of the [union] and, apparently of the association as well, continued to chart its own separate course in labor relations", and that whatever "limited bargaining" took place between the employer and union (including an employee wage increase) "has been on a single -employer basis" The departures from the 1967-70 agreement in the instant case, significant though they be, were not (as in Silver Lake) the result of a mutual- ly agreed arrangement between the parties. 5 I am not called upon to decide, and do not decide, whether the majority question can fairly be determined in a Board electionwithin the reasonable foreseeable future after the contract expired, in view of Respondent's system- atic and widespread acts of interference , restraint, and coercion between June and September 1969 (supra, sec. Q. Where such acts are "extensive and pervasive" the Board will issue a bargaining order without holding an elec- tion on the theory that the employer's conduct "destroyed the possibility of conducting a fair and coercion-free election ." Diamond Standard Fuel Corp, 179 NLRB No 117 See also K B & J Young's Super Markets, inc, 157 NLRB 271, 272, In 3, enfd. 377 F.2d 463 (C.A. 9), N L R B v Gissel Packing Company, Inc, 395 U S 575, 614-616, All-Tropics, Inc, 179 NLRB No 19. 631 Respondent's unlawful conduct was a substantial contribu- tory cause. San Antonio Machine & Supply Corp., 363 F.2d 633 , 641 (C.A. 5); N.L.R.B. v. Louisville Chair Company, Inc., 385 F.2d 922, 929 (C.A. 6). CONCLUSIONS OF LAW 1. Bender Ship Repair Company, Inc. and Bender Weld- ing and Machine Company, Inc. ("Respondent"), consti- tute a single employer engaged in commerce within the meaning of the Act. 2. Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by coercively questioning employees about their Union sympathies and activities; by threatening them with repris- als including loss of jobs, transfer to less desirable work, and plant shutdown) for engaging in Union activities; by encouraging and soliciting employees to withdraw from the Union; and by conveying the impression of surveillance and engaging in surveillance of Union activities. 3. International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, AFL-CIO, Local Lodge 112, is a labor organization within the meaning of the Act. 4. The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining with- in the meaning of Section 9(b) of the Act: All production and maintenance employees, excluding office employees, professional employees, guards and su- pervisors as defined in the Act, and excluding all machinists and teamsters, represented by other labor organizations. 5. At all times here material the Union has been the exclusive representative of all employees within said appro- priate unit for purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 6. By failing and refusing to recognize and bargain with the Union, to meet with it to discuss employee grievances, to furnish it with relevant bargaining information, and to make contributions to the Union's pension plan pursuant to the 1967-70 collective agreement, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The strike, which commenced on September 17, 1969, was caused by Respondent's unfair labor practices, and hence was an unfair labor practice strike. 8. The unfair labor practices described above in para- graphs 2 and 6 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(I) and (5) of the Act, I will recommend that it be required to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Such affirmative action will include a requirement that Respondent recognize and, upon re- quest, bargain in good faith with the Union as exclusive representative of all its employees in the appropriate unit with respect to rates of pay, hours, and other terms and conditions of employment, embodying in a signed instru- ment any understanding reached. 56 Respondent will also be 56 Compliance with the terms of this Order will require Respondent to recognize and bargain in good faith with the Union for a reasonable period of time, even if defections from the Union have resulted in the Union's majority loss See Franks Bros Co, 321 U S 702, N L R B v Gissel Packing Co Inc, 395 U S 575, 610-614, N LR B v Miami Coca-Cola Bottling Co, (Continued) 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required to supply, upon request, information (including a list of employees in the bargaining unit, and their job classi- fications, hourly rates, and hiring dates) relevant and perti- nent to bargaining. Having found that Respondent, as alleged in the com- plaint, has failed to make contributions to the Union's pen- sion plan on behalf of employees in the bargaining unit, as required by its 1967-70 collective agreement with the Un- ion, Respondent will further be required to make such con- tributions from February 11, 1969 (6 months prior to the filing of the unfair labor practice charge), until such time as the parties either sign a new collective agreement or reach an impasse in food-faith negotiations of a new agreement. The Board was held that notwithstanding expiration of a collective agreement (here the agreement expired on March 2, 1970), an employer "is obligated to continue in effect beyond the expiration date of the agreement certain condi- tions" of employment such as pensions . Tormod Langemyr, d/b/a Tom Carpentry Construction Co., 176 NLRB No. 11. "The pension ... provided by the expired contract consti- tuted an aspect of the emplo ee wages and a term and condition of employment which survived the expiration of the contract and could not be altered without bargaining." Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB No. 100.57 382 F 2d 921, 923-924 (C.A 5), Pioneer Flour Mills v N L.R B 427 F 2d 983' (CA 5) 57 In enforcing the Board's Hinson decision, the Eighth Circuit said, "The spirit of the National Labor Relations Act and the more persuasive authori- ties stand for the proposition that, even after expiration of a collective bar- gaining contract, an employer is under aft obligation to bargain with the Union before he may permissibly make any unilateral change in the terms and conditions of employment [citing cases] " 428 F 2d 133 See also Overrate Transportation Co v NLRB , 372 F 2d 765 (C A 4), NLRB v C & C Plywood Corp, 413 F 2d 112, 116 (C A 9) But see NLRB v George E Light Boat Storage, Inc, 373 F 2d 762, 770 (C A 5) Although it has been found that Respondent also failed fully to comply with terms of the 1967-70 agreement respecting matters other than pensions (e.g, wages, overtime, and Respondent will further be required to meet and discuss unresolved grievances filed by the Union on behalf of em- ployees. See N.L.R.B. v. Knight Morley Corp., 251 F.2d 753, 759-760 (C.A. 6); P. R. Mallory & Co., Inc. v. N.L.R.B., 411 F.2d 948 (C.A. 7); Smith Cabinet Manufacturing Co., 147 NLRB 1506, 1508-09, Cf. Textile Workers' Union of Ameri- ca v. Lincoln Mills of Alabama, 353 U.S. 448. Finally, in view of the finding that the September 17, 1969, strike was an unfair labor practice strike, the order will provide the conventional requirements 58 that Respondent shall, upon unconditional application, offer strikers not heretofore reinstated immediate and full reinstatement to their former jobs or, if those j obs no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges, dismissing, if necessary, any employees hired since September 17, 1969. As to those strikers who have already made themselves available for work on an unconditional basis but were refused reinstate- ment, Respondent shall make them whole for any loss of pay they may have suffered or may suffer as a result of its failure or refusal to reinstate them to such jobs from 5 days after the date of their unconditional application therefor to the date of their reinstatement. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] vacation pay), the order herein will not provide for reimbursement of losses thereof to affected employees Cf B & J Plumbing, Inc, 176 NLRB No 43 The complaint does not allege contractual noncompliance as to these, but only as to pension requirements Observations heremabove made concerning Respondent's failure to honor other terms of the agreement were in connec- tion with issues such as applicability of the Shamrock doctrine and the "contract bar" rules (supra, sec F, c and d) and not for purposes of determin- ing whether such conduct constituted unfair labor practices 58 See Louisville Chair Company, Inc, 161 NLRB 358, enfd. 385 F 2d 922 (C A 6), Southwestern Pipe, Inc, 179 NLRB No 52