Emerson Manufacturing Co., Inc.

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emerson Manufacturing Company, Inc. and United Industrial Workers of North America, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO. Case 4-CA-5865 November 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 19, 1972, Administrative Law Judge 1 Arthur Leff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed an answering brief, and Charging Party filed cross- exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Emerson Manufac- turing Company, Inc., Pennsauken, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR LEFF, Trial Examiner: This case, heard at Philadelphia, Pennsylvania, on May 8, 1972, pursuant to a charge filed on February 23, 1972, by the above-named Union ("Union") against the above-named Company ("Respondent") and a complaint issued on March 27, 1972, presents the following question: Did the Respondent violate Section 8(a)(5) and (1) of the National Labor Relations Act by refusing, on and after January 17, 1972, to bargain collectively with the Union as the exclusive 1 The appropriate unit is more specifically described in the complaint, and admitted in the answer, to be as follows: All production and maintenance employees employed by Respondent bargaining representative of its employees in the unit to be described below? Upon the entire record in the case, my consideration of the briefs filed on June 5, 1972, by the General Counsel, the Union, and the Respondents, and from my observa- tions of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent, a New Jersey corporation, with its principal place of business at Airport Industrial Park, Pennsauken, New Jersey, is engaged in the manufacture and sale of storm windows. During the past year, the Respondent sold and delivered to points outside the State of New Jersey goods valued in excess of $50,000. The Respondent, as it admits, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Chronology of Events On March 7, 1966, following a secret ballot election, the Union was certified by the Board as the exclusive bargaining representative of the Respondent's production and maintenance employees, a bargaining unit which I find is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.' The unit is a small one. At the times material herein it contained 11 employees. The Union, following its certification, enjoyed amicable relations with the Respondent for a period of about 6 years. Two 3-year contracts were negotiated during that period, each containing union-shop provisions in the conventional form. The later contract was for a term running from March 21, 1969, to March 20, 1972, with a provision for annual renewals thereafter in the absence of notice by either party of contrary intent given 60 days before the expiration date. On January 10, 1972, the Union by appropriate notice informed the Respondent that it desired to negotiate a new agreement to succeed the contract expiring March 20, 1972. The Union did not then indicate the specific changes it desired to negotiate. About a week after receipt of the Union's notice-under date of January 17, 1972, to be precise-the Respondent, over the signature of its president, Joseph F. Bovino, addressed a letter to the Union's New York City headquarters, reading in relevant part as follows: This is to notify you that ... we do not intend to renew this contract for any additional period of time .... The reason for this action on our part stems from our inability to shoulder this substantial financial at Airport Industrial Park, Colonial Lane, Pennsauken, New Jersey, excluding office, clerical, salaried, and professional employees, supervi- sors, and guards as defined in the Act. 200 NLRB No. 33 EMERSON MANUFACTURING COMPANY , INC. 149 burden and is causing, serious complications concern- ing our financial structure. We do, however, intend at some future date to submit this question of membership in the Union to our employees by secret ballot. If there are any questions concerning this matter, I would appreciate your contacting us immediately. Bovino testified that mention of a future election was made in his letter because "I felt that the Union did not have a clear majority of these people and that these people .. . had a right to vote whether they wanted to continue with the Union or not." Asked why, then , he ascribed the Respondent's unwillingness to deal further with the Union to financial considerations , Bovino testified, I told my [corporate attorney] my intentions and not being a labor lawyer he wrote the letter for me and these were his words that he used and I felt that these words were appropriate since when you have a contract with someone and you're going to alter the contract that he would know the right thing to say and I went along with his context of the letter because he basically got in there what I asked for which was an election. Although not in a strong "liquid" position, added Bovino, the Respondent did not then have any financial problem with the Union "from the standpoint of proposals and that type of thing" because "the letter was written before I even got the proposals." The Union's New York headquarters transmitted the Respondent's letter to John Fay, its assistant regional director for the geographical area in which the Respon- dent's plant is located. Fay, in turn, communicated the contents of the letter to Grover Browne, the Union's business agent who had serviced the bargaining unit since 1966. Fay instructed Browne to ascertain from the unit employees their desires for new contract terms and to proceed as he had done in the past in his dealings with the Respondent. On January 27, Browne called at the Respondent's plant and requested Naomi Hartley , the shop steward, to obtain the employees' proposals for a new contract . A meeting, called by Hartley, was held for that purpose during the employees' lunch hour that day. All employees then present in the shop-almost all of those in the unit-at- tended the meeting and participated in the discussion relating to contract demands. Later that same day, Browne and Hartley called on Bovino to set up a date for an initial negotiating session. A meeting date was agreed upon for February 11. On February 2, after the Union's contract proposals were drawn up in written form , Browne and Hartley again called on Bovino and submitted to him a copy of the proposals. Neither at this time, nor on the earlier occasion when the February 11 meeting date was agreed upon, did Bovino express any unwillingness to bargain , declare any doubt of the Union's majority status, or make any mention of a desire for an election. However, several days after the submission to him of the Union's contract proposals, Bovino notified Hartley, without telling her why, that he did not intend to keep the February 11 meeting date that had been arranged. When Browne telephoned Bovino for an explanation , Bovino told him that he saw no reason for a meeting as he could not afford the Union, did not want the Union , and did not think that a majority of the employees wanted the Union either. This was the first time during the many years that Browne had dealt with Bovino that Bovino had indicated to him any question about the employees' continued desire for union representation . Bovino expressed his opinion that the employees did not want a Union simply in terms of his personal feelings. He did not then, or at any later time, state any basis for that opinion. Thereafter, the Respondent persisted in its refusal to bargain with the Union. On February 9, at Browne's request, Bovino met with him and Hartley at Bovino's office. Browne asked Bovino what he intended to do about the contract proposals that had been submitted to him. Bovino said he intended to do nothing, reiterating what he had previously told Browne on the telephone , that he could not afford the Union, did not want a union, and did not think the employees wanted one either . On the following day, Fay, the Union's assistant regional director, asked Bovino to come to his office to discuss the Respondent's refusal to negotiate . Bovino accepted Fay's invitation, but at this meeting he simply restated in substance the position the Respondent had declared in its letter of January 17. On February 11, Bovino called at the Board's regional office to discuss the "problem" he was having with the Union. In the course of that discussion he informed the staff attorney to whom he spoke that he wanted to petition for an election. He was informed that under the Board's established procedures no representation petition could be accepted during the 60-day insulated period preceding the contract's expiration date. Following his visit to the Board's office, Bovino, as appears from his testimony, advised his employees that he was not "working" on a new contract because he wanted them to have the privilege of an election. At the same time he informed them of what he had learned at the Board's regional office and distributed to them literature he had obtained at the Board 's office relating to the Board's rules and procedures governing representation elections in its various forms. There is nothing, however, in Bovino's testimony, or in other record evidence, to indicate that the employees manifested any support for the position Bovino was taking assertedly in their behalf ; such testimony as does bear on that point is to the contrary.2 On March 22, the Respondent filed an "RM" petition, docketed as Case 4-RM-776, for an election to determine whether the unit employees desired continued representa- tion by the Union. The petition was not accompanied by any evidence to indicate that the Respondent had reasonable grounds for believing that the Union had lost its majority status since certification .3 Prior to the filing of the petition, the Union, on February 23, had filed its charge in the instant proceeding alleging that the Respon- dent had unlawfully refused to bargain with it since January 17, 1972. On March 29, the Regional Director notified the Respondent that in view of the issuance, on 2 Thus, Hartley testified that none of the employees wanted to work when the contract expired on March 20, 1972, but only remained on the job on the advice of union counsel. 3 See U.S. Gypsum Co., 157 NLRB 655. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 27, of the complaint herein, based in part on his investigative determination that no genuine question concerning representation existed, he was dismissing the Respondent's petition in Case 4-RM-776. On appeal, the Board upheld the Regional Director's action, ruling that the dismissal of the petition was warranted because of the pending 8(a)(5) complaint. B. The Contentions of the Parties The Respondent concedes that it refused to bargain with the Union since January 17, 1972, as alleged in the complaint, but it disputes that the Union at that time, or at any time thereafter, occupied the status of a majonty representative entitled to recognition for the purposes of negotiating a new contract. It contends, moreover, that its refusal to bargain, though initially expressed in its letter of January 17 to have been motivated by financial considera- tions-a reason which it now admits is insufficient in law-was in reality predicated on a good-faith doubt of the Union's continued majority, a doubt which, it says, it was entitled to have resolved via an election before being compelled to deal further with the Union. The General Counsel and the Charging Party, on the other hand, rely on the presumption of continuing majority flowing from the 1966 certification as establishing the Union's majonty status at the times relevant herein. They dispute that doubt of the Union's majonty was a true reason for the Respondent's refusal to bargain. But they assert that even if it was, this would still notjustify in law the Respondent's refusal because the asserted doubt was, at most, a subjective one, and not one reasonably grounded on objective considerations. The Charging Party, but not the General Counsel, contends additionally that the Respon- dent, having failed expressly to assert a doubt of majority prior to the 60-day insulated period preceding the expiration date of the 1969-72 contract, or to have challenged the Union's majority status by an appropriate representation petition within the 60-90 day open period preceding that expiration date, did not raise a timely objection to the Union's majority status under the Board's contract-bar rules, and that for that reason, without more, its refusal to bargain with the Union within the insulated period should be found a per se violation of the Act. C. The Applicable Principles The principles of law applicable to the issues in this case are well settled. They were restated in Laystrom Manufac- turing Co., 151 NLRB 1482, 1483, as follows: Absent unusual circumstances, there is an irrebutable presumption that the majority status of a certified union continues for 1 year from the date of certifica- tion. After the first year the certificate still creates a 4 Although the court denied enforcement in the Laystrom case (359 F 2d 799 (C A 7)), the Board in subsequent cases has continued to adhere to the principles there declared These principles have generally met with the approval of other circuit courts of appeal that have had occasion to pass on the question See, e g , N LR B v Gulfmont Hotel Co, 362 F 2d 588 (C A 5), N L R B v Rush Equipment Co, 407 F 2d 1098 (C A 4), Terrell Machine Co v NLRB , 427 F 2d 1088 (C A 4), cert denied 398 U S 929, N L R B v Little Rock Downtowner, 414 F 2d 1084 (C A 8) 5 See Barrington Plaza, 185 NLRB No 132, and cases there cited As presumption of majority status, but the presumption is normally rebuttable by an affirmative showing that the Union no longer commands a majority. Moreover, where the certificate is a year or more old an employer may withhold further bargaining without violating the Act and insist that the union re-establish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority. A showing of such doubt, however, requires more than an employer's mere assertion of it and more than proof of the employer's subjective frame of mind. The assertion must be supported by objective considera- tions. The applicable test as defined in the Celanese case [95 NLRB 664], is whether or not the objective facts furnish a "reasonable basis" for the asserted doubt, or, put another way, whether or not there are "some reasonable grounds for believing the union has lost its majonty status since its certification."4 The Board applies the same standards in situations where the presumption of continuing majority status arises from a bargaining history which has not been initially founded, as in the instant case, on a Board certification.5 In situations involving incumbent union representatives, the Board also applies a like test in determining whether a question concerning representation exists warranting the processing of an RM petition .6 The requirement of demonstrable and reasonably based grounds for challeng- ing an incumbent union's presumed continued majonty status at the end of a contract term is designed to effectuate statutory policy of promoting stability in a collective-bargaining relationship without foreclosing em- ployees' freedom of choice.? Quite clearly, it would only be disruptive of stable and uninterrupted bargaining relation- ships to allow employers at their option, and without good reason therefor, to put unions to the burden and expense of going through an election campaign at the end of each contract term to reestablish their majonty status as a condition to the negotiation of a new contract.8 With these legal principles in mind, I now turn to consider whether on the facts of this case, the Respondent was justified in announcing to the Union, on January 17, 1972, its intent not to negotiate a new agreement, and in thereafter refusing to bargain with the Union. D. Additional Findings, Analysis and Conclusions The initial question to be considered is whether the record as a whole supports a finding that doubt of the Union's continued majority was the real reason for the Respondent's refusal to bargain. I am by no means satisfied that it does. No such doubt was expressed by the Respondent in its letter of January 17, wherein it first declared its intention not to negotiate a new contract with the Union. The only reason there given for the position the pointed out in the cited case, even in the absence of a certification, the existence of a prior contract, lawful on its face, raises a dual presumption, that the Union had majority status when the contract was executed, and that the majority continued at least through the life of the contract 6 See United States Gypsum Co, 157 NLRB 652 7 Terrell Machine Co, 173 NLRB 1480, enfd. 427 F 2d 1084 (C A 4), Celanese Corporation of America, 95 NLRB 664, 671-2 8 See United States Gypsum Co, supra, 655 EMERSON MANUFACTURING COMPANY, INC. 151 Respondent was taking was "our inability to shoulder this substantial financial burden . . .," a reason which the Respondent now concedes could provide no lawful justification for refusing to negotiate. Although the letter also expressed an intent at some undesignated "future date" to submit to an election the question of the employees' desire for "membership" in the Union, this was not stated as a reason for withholding bargaining. Nor, in the context of the letter as a whole, may it reasonably read as implying that the Respondent, notwithstanding its specifically expressed financial reason for not wanting to deal further with the Union, would nevertheless still be willing to bargain for a new contract if the Union reestablished its majority status in an election. Bovino's testimony that the financial reason he stated in the letter was not his' actual reason for refusing to bargain, but was rather one improvised by his corporate attorney who was unskilled in labor law, does not appear plausible, particu- larly when one considers that Bovino himself in his later contacts with union representatives repeatedly stressed the Respondent's financial position as a primary reason for his unwillingness to deal further with the Union. It is true that in these later contracts with union representatives-more than 3 weeks after the letter was written-Bovino did state that he was refusing to bargain, not only because he did not want the Union and could not afford the Union-these essentially were the reasons stated in the letter-but also because lie did not think the employees wanted the Union. But the belated addition of that reason, when considered in context with the other reasons given, strongly suggests that it was thrown in as a make-weight and did not reflect the actual reason for the stance the Respondent was taking. In any event, even if the record were found to support the Respondent's contention that the Respondent's unwill- ingness to deal further with the Union was rooted in a doubt of majority, this alone would not bring the Respondent home free. It would only lead to the next question, now to be considered, whether the Respondent has sufficiently demonstrated on this record that its asserted doubt of a majority was reasonably based on objective considerations. To support its claim of a reasonable basis for doubt, the Respondent relies largely on the employee turnover that occurred during the 6-year period intervening between the Union's March 1966 certification and the January 1972 refusal to bargain.9 The Board has consistently held, however, that employee turnover is not alone enough to provide a reasonable basis for concluding that a union has lost its majority status.10 As the Board stated in Laystront, As to this, the record shows that of the 11 employees on the Respondint's payroll at the time of its refusal to bargain, only two had been employed at the time the 1966 election was held. However, it also shows that 6 of the 10 employees who were working for the Respondent when the 1969-72 contract' was negotiated were still with the Respondent in January 1972. 1o See; e:g., Laystrom Mfg. Co., supra, Massey-Ferguson, Inc., 184 NLRB No 106. And see, also, N L R B v. Little Rock Downtowner, Inc., supra, and court cases there cited. 11 Bovrng was wrong in his speculation about Rodriguez . Rodriguez, a credible witness, testified that he was not a member of the Torres group that drove to work and lunched together. Bovines testimony concerning what Torres told him is in some respects confusing and contradictory. Thus, Bovmo's testimony on direct examina- tion reflects that Torres specifically mentioned his "cronies" in describing "new employees will be presumed to support a union in the same ratio as those whom they replaced." In the instant case, the Respondent has not shown anything unusual about the Respondent's hiring practices, or the presence of any other special circumstances, that would serve to negate or rebut the normal presumption. The only other "objective considerations" to which Bovino pointed in his testimony as supplying a reasonable basis for doubt were the following: (a) One employee, Daniel Tones, on one occasion, in December 1971 or January 1972, came to him and said, "If you want to get rid of the Union, we're with you." Tones in that statement to Bovino did not specify to whom else, if anyone, he was referring by his use of "were." But Bovino, according to his testimony, assumed from Tones' use of the plural pronoun that Tones must have been speaking, not only for himself, but also for employees Audeliz Mendez and Manolin Perez, and possibly also-Bovino was not sure-for Henry Rodriguez, because they com- posed a closely knit ethnic group who always lunched together and drove in the same carpool.ll Bovino admitted that of the 11 employees in the bargaining unit at the time of the Respondent's refusal to bargain, Torres was the only one who had ever indicated to him directly that he did not want the Union. And, except as it may be implied from what Tones told Bovino, there is nothing in the record to show that Bovino indirectly ever acquired any specific intelligence of this kind relating to any other employees in the unit. Bovino did testify at one point that at the time of the refusal to bargain he was "certain" that "3 or 4" of the unit employees did not want the Union. But, as his testimony makes clear, his "certainty" was founded entirely on Tones' statement to him mentioned above, a statement which at best is ambiguous, and is certainly less than reliable in its revelation of the attitude toward the Union of anyone but Torres himself.12 In any event a belief that 3 or 4 in a unit of 11 did not want the Union is scarcely enough to support a reasonable doubt of majority. (b) As a further reason for doubting the Union's majority, Bovino, according to his testimony, relied on the fact that employees complained to him about the deduc- tion of dues when their paychecks were handed out. The sweep of Bovino's testimony to this effect was narrowed when, asked specifically to identify those in the unit in January 1972 who had complained, he was able to name only three-Daniel Tones and Henry Rodriguez, who have already been referred to, and Nettie Sullivan. Bovino's testimony as to Torres stands undenied. Rodri- guez, whom I credit, testified that he spoke to Bovino' only whom he was speaking for. On cross, Bovino testified at one point that Torres "named" the other employees included in the pronoun "we", at another point he testified that Torres did not. Bovmo's final version was that there was no specific identification of the others ; that Torres simply put it in terms of "We're with you," and that from this Bovino inferred that Torres must have been referring to the people he customarily had lunch with. The finding I have made is based on this last version. 12 The unreliability of Torres' statement in this respect is verified by the fact that both Rodriguez and Perez, as rebuttal witnesses for the General Counsel, denied that they had ever told Torres that they were dissatisfied with the Union. Perez' testimony also reveals that Torres' opposition to the Union was attributable to his religious sect, a fact of which Bovmo presumably was aware. Perez' testimony further indicates that Mendez also belonged to that religious sect. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD once about this subject-when he returned to work for the Respondent a second time after having earlier left the Respondent's employ. No complaint was involved, only an inquiry whether he would again have to pay an initiation fee under the union-security provision of the contract. Nettie Sullivan testified credibly that she had complained to Bovmo about a dues deduction on only one occasion. This was when the Respondent had, or so she thought, deducted dues three payroll periods in a row, although dues were supposed to be taken out only once a month. Both Rodriguez and Sullivan admitted that in casual conversations with employees they had at times engaged in the customary form of griping about payroll deductions. Their griping, however, was not limited to dues, but covered all payroll deductions, including deductions for social security and income taxes, which served to reduce the gross amount of their wages. It has been held that failure of employees to pay dues to a union is not the equivalent of showing lack of union support 13 Certainly, griping of the kind engaged in by Rodriguez and Sullivan provides an even less reasonable basis for concluding that employees no longer desire union representation. (c) As an additional ground for doubting the Union's majority, Bovino referred in his testimony to a number of employees who had been members of the Union during earlier periods of their employment, but who upon their return to the Respondent's employ had been reluctant to pay union dues, one of whom the Respondent had been obliged to discharge for that reason. Bovino identified those in this category as Darnel Torres, Francis (not Nettie) Sullivan, Alphonso Torres and Bonnie Haynes. Except for Daniel Tones, none of those named was in the Respondent's employ at the time of its refusal to bargain; the last to leave, Bonnie Haynes, having been terminated on September 16, 1971. This item manifestly has de minimus significance as an objective consideration reflect- ing on the majority sentiment for continued representation by the Union at the times material herein. (d) As a final item of "objective considerations," the Respondent's brief, not Bovino's testimony, stresses that among the 11 employees in the bargaining unit at times here material there were a substantial number who, according to company records, did not join the Union (submit checkoff authorizations?) within the first 31 days of their employment, as required by the contract's union- security provision. The brief names eight such employees.14 Reference to the Respondent's own exhibit shows that as to three of the eight, the Respondent is mistaken. They did join (submit checkoff authorizations?) within 31 days. Two of the others did so on the 32nd day following the beginning of their employment. There was an appreciable 13 See Terrell Machine Co. v N L.R. B., 427 F 2d 1088, 1090 (C A. 4), cert. denied 398 U S. 929, where the Court said: A showing that less than a majority of the employees in the bargaining unit were members of the Union or paid union dues [is] not the equivalent of showing lack of union support Manifestly-many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of its representation. Nonetheless, the union may enjoy their support, and they may desire continued representation by it Accord, N L.RB. v. Gulfmont Hotel, 362 F.2d 588, 592 (C A. 5). 14 It inadvertently omits the name of Daniel Torres who also should have been included. overdue delay, ranging from 11 to 20 days, with respect to only three of them. There is no evidence in the record to explain the delay. It might have been attributable to any number of reasons besides unwillingness of the employees to be represented by the Union, such as, for example, absences of the employees from work, delays by the union representatives in submitting cards to the employees for signature or in filing signed cards with the Respondent, etc. The Respondent makes no claim that it was in possession of any information indicating that the delays were connected in any way with an unwillingness to join the Union. Nor did Torres in his testimony expressly assert that he took this specific item into account in shaping his asserted doubt of majority. For the reasons stated, I can attach no significant weight to this item in assessing the issue at hand. Taking into account all the "objective considerations" on which the Respondent relies, I am persuaded, and find, that they are insufficient to demonstrate that the Respon- dent had reasonable grounds for believing that the Union no longer commanded majority employee support at the time of its refusal to bargain. This, coupled with the fact that the Respondent made clear when it refused to bargain that it did not want to deal further with the Union and initially explained its refusal on a ground unrelated to the Union's continued majority, leads me to the conclusion that the Respondent's asserted doubt of majority was not, under the applicable principles stated above, a reasonably based good-faith doubt, justifying its refusal to bargann.15 Accordingly, I find, as more fully alleged in the complaint, that the Union at all times material herein was, and now is, the exclusive representative by virtue of Section 9(a) of the Act of the Respondent's employees in the appropriate unit described in footnote 1, above, and that the Respondent, by its refusal to bargain with the Union on January 17, 1972, and thereafter, violated Section 8(a)(5) and (1) of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act, it will be recommended that it be required to cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. Having found that the Respondent unlawfully refused to bargain with the Union as the exclusive bargaining representative of the employees in the appropriate unit described in footnote 1, above, I shall recommend that it 15 1 find no meet in the Respondent's contention, made at oral argument, that these principles are not properly applicable to this case because of the absence of any showing of independent unfair labor practices by the Respondent. See, e.g., Maywood Packing Co., 181 NLRB 778, 781; Kentucky News, 165 NLRB 777, Palmer Asbestos & Rubber Co., 160 NLRB 723; Laystrom Mfg Co., 151 NLRB 1482 Because of the result I reach on other grounds, I find it unnecessary for purposes of decision in this case to consider or pass upon the merits of the Charging Party's contention that the Respondent's refusal to bargain should be found a per se violation because of its failure to raise a timely objection to the Union's majority status under contract bar rules. EMERSON MANUFACTURING COMPANY, INC. 153 be ordered to do so, upon request, and, if agreement is reached, to embody the agreement in a signed contract.16 Upon the foregoing findings of fact and conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:17 ORDER The Respondent, Emerson Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, with United Industrial Workers of North America, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Respondent at Airport Industrial Park, Colonial Lane, Pennsauken, New Jersey, excluding office, clerical, salaried, and professional employees, supervi- sors, and guards as defined in the Act. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, found neces- sary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. (b) Post at its plant at Airport Industrial Park, Pennsauk- en, New Jersey, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of the receipt of this Decision, ,what steps the Respondent has taken to comply herewith.19 16 The Union in its brief to me has specifically requested that the remedial order include a provision requiring the Respondent to maintain the contract dated March 21, 1972, in full force and effect until such time as the Respondent complies in good faith with its bargaining obligations, and that the Respondent also be directed to make retroactive payment of health, welfare, and pension plan contributions from the date of the expiration of the contract until such time as the Respondent comphes with its bargaining obligations. Although this issue was neither raised nor litigated at the hearing in this proceedmg, it does appear from certain testimony of Bovino that a controversy, which is the subject of civil litigation, now exists between the Union and the Respondent as to whether the Respondent was required under the terms of its aforesaid contract to make contributions to the Union's pension plan. Moreover, certain provisions of the contract, such as its union-security provisions, cannot under the law survive the contract's termination. For these reasons, among others, I shall not include in the recommended order the affirmative requirements specifically requested by the Union. The breadth of the cease-and-desist provisions of my recommended order is such, of course, as to encompass within its proscription any unlawful unilateral changes by the Respondent concerning terms and conditions of employment of the employees in the bargaining unit. 17 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. is In the event that the Board's 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 " 19 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL bargain collectively, upon request, with United Industrial Workers of North America, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, as the exclusive representative of all our employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understand- ing in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at Airport Industrial Park, Colonial Lane, Pennsauken, New Jersey, exclud- ing office, clerical, salaried, and professional employees, supervisors, and guards as defined in the Act. WE WILL NOT by failing or refusing to bargain with the aforesaid labor organization as required above, or in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain through representatives of their own choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent permitted by Section 8(a)(3) of the Act. EMERSON MANUFACTURING COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days directed to the Board's Office, 1700 Bankers Securities from the date of posting and must not be altered , defaced, Building, Walnut & Juniper Streets, Philadelphia, Pennsyl- or covered by any other material. Any questions concern- vania 19107, Telephone 215-597-7601. ing this notice or compliance with its provisions may be