Harpeth Steel, Inc.

HARPETH STEEL, INC. 545 Harpeth Steel, Inc. and International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local 733. Case 26-CA-4532 January 21, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND PENELLO On April 30, 1973, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support thereof. 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. Unlike our dissenting colleague, we agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) of the National Labor Relations Act, as amended, when it withdrew recognition from the Union on September 19, 1973, and thereafter refused to bargain with it. In our view of the record, these are the critical facts: In March 1966, the Union was certified to represent Respondent's employees. It thereafter negotiated bargaining contracts with the Respon- dent, the last one effective by its terms from May 1, 1969, until April 30, 1972, but extended by the parties to May 14, 1972. On February 25, 1972, the Union requested negotiations for a new contract and filed a grievance, and also transmitted to Respondent dues-checkoff authorizations signed by 13 employ- ees, a majority of the unit. Bargaining sessions were held until July 7, when an impasse was reached. The Union requested a resumption of bargaining on September 6. But at a grievance meeting held on September 8, a union representative stated that, for the period of the last contract prior to February 1972, it had no members in the unit. Thereafter, by letter dated September 19, Respondent noted this statement, reminded the Union that it had made a final offer on July 7, asserted that only seven of those for whom checkoff authorizations were submitted in February were still on its active payroll, and advised the Union that it would no longer meet with it until certified. There is no evidence of employee dissatis- faction with the Union's representation of them at any time. On the basis of well-established law, the Union's certification and long contractual relationship with Respondent gave rise to a presumption of majority status in favor of the Union, which was fortified by tangible evidence of dues-checkoff authorizations. In the face of this presumption and direct evidence of majority status, Respondent's withdrawal of recogni- tion must be found unlawful unless (1) competent evidence establishes that the Union no longer commanded a majority as of September 19, 1972, or (2) Respondent had a reasonably based doubt as to the Union's continuing majority status.' With respect to these matters, we note that the Union has acted as bargaining representative for Respondent's employees since 1966. It must, of course, be assumed, the Administrative Law Judge found, that the employees were aware of the fact that the Union was negotiating contracts for them and otherwise acting as their bargaining representative. Yet there is no evidence-none at all-that the employees did not desire this representation by the Union. Indeed, in February 1972, a majority of them chose to become members of the Union and signed dues-checkoff authorizations. By September 19, six of those employees were apparently separated; thereafter, the number of employees who signed union membership cards fluctuated, as did the employee complement. Absent any overt expressions by the employees of dissatisfaction with the Union as their bargaining representative, the fact that there were periods when employees may not have chosen to become members, as during the period of the contract prior to February 1972, cannot be taken as proof that, at such times, the employees no longer favored the union represent- ation they had selected and that the presumption of continued majority status became inoperative. "For, 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 representation by that union." 2 As reasoned by the Administrative Law Judge, employees may desire union representation even though they do not become members; they may desire to have the benefits of union representation without paying dues or otherwise belonging to a union. Nor do changes in the employee complement, such as accounted for the separation of some employees who signed dues-checkoff authorizations in Februar- y, provide a sound basis for believing that the Union chosen by the employees to represent them is no longer the employees' choice. The Board has long held that new employees will be presumed to support a union in the same ratio as those whom they have replaced.3 We also do not believe it reasonable to base a I Celanese Corporation of America, 95 NLRB 644, 672, Emerson Manufacturing Company, Inc, 200 NLRB No 33 2 Terre!! Machine Company, 173 NLRB 1480, 1481 3 Maywood Packing Company, 181 NLRB 778 208 NLRB No. 84 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding of lack of majority support in the fact that the Union delayed for 2 months before communicat- ing again with Respondent on September 6, follow- ing the bargaining impasse in July, or that it did not resort to strike action to break that deadlock. It is difficult for us to reconcile the dissent's suggestion that the Union's inaction in these respects demon- strates a lack of majority status and its finding that the Union was without majority status even when it did act on September 6 to seek a resumption of bargaining and met with. Respondent on September 8 to process the grievance it had filed in February, all of this before the Respondent's withdrawal of recognition on September 19. Accordingly, we conclude that it has not been established that the Union lost its majority status as of September 19, 1972, or that Respondent had a reasonable basis for believing so. It follows that Respondent's withdrawal of recognition at that time and its refusal to bargain thereafter violated Section 8(a)(5) as found by the Administrative Law Judge. 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 Harpeth Steel, Inc., Franklin, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. CHAIRMAN MILLER, dissenting in part: I agree with my colleagues that the Respondent ran afoul of the Act when, on November 10, 1972, President Cole advised employees that he would meet with them collectively, but not with representa- tives of Local 733.4 Likewise, I would find that the Respondent engaged in proscribed conduct by subsequently rendering unlawful assistance in the formation and administration of the employees' Shop Committee and by thereafter bargaining with the Shop Committee over a wage increase. However, contrary to my colleagues, I would not find that the Respondent's admitted refusal to continue bargaining with Local 733 on and after September 19, 1972, violated Section 8(a)(5) and (1) of the Act. The ^ relevant facts are largely uncontroverted. Local 733 was certified as collective-bargaining 4 In this respect, and for the reasons hereinafter set forth , 1 would not find that the Respondent was required to bargain with Local 733 after September 19, 1972, but only that a question concerning representation existed 5 The Respondent's payroll records show that from July 30 to October 22 the number of employees who had signed checkoff authorization cards for representative of the employees in 1966. Prior to February, 1972, the Union admittedly had no members among the Respondent's employees. Dur- ing February the Union obtained checkoff authoriza- tion cards from 13 of the Respondent's 25 unit employees. On February 25, the Union forwarded the authorization cards to the Respondent together with a letter regarding grievances and another notifying the Respondent of the Union's desire to negotiate a new agreement to replace the current contract which was subsequently extended, by mutual consent of the parties, to May 14, 1972. Thereafter, negotiating sessions were held on April 21, 27, and 28; May 6, 18, and 30; and July 7, 1972. At the last meeting of July 7 the Respondent submitted its final proposal. The union negotiator advised the Respondent that the proposal was unacceptable. Notwithstanding, the Union took no further action, and a 2-month hiatus ensued. On September 6, the Union wrote the Respondent, seeking resumption of contract negotiations. On September 8, an arbitration hearing was held on the grievances which had been filed by the Union during the preceding February. At this arbitration, a union representative testified that Local 733 had no members among the Respondent's employees prior to February 25. On September 19, the Respondent replied to the Union's request for resumption of negotiations. It declined to bargain further with the Union, citing the facts substantially as set forth above, adding: Further, of the employees for whom -you submit- ted checkoff authorizations on February 25, 1972 to the Company only seven of those employees are still on the active payroll of the Company which today includes twenty-four employees.5 In sum, the Respondent apprised the Union of its belief, based on its record evidence, that the latter no longer represented a majority of the employees involved, and that further negotiations might subject the Respondent to charges that it had violated Section 8(a)(2) of the Act. It is clear that, absent special circumstances, a union enjoys an irrebuttable presumption of majority status for 1 year after certification and that, thereafter, the presumption continues, but becomes rebuttable upon a sufficient showing to cast serious doubt on the union's continued majority status.6 In this case, the Union was certified in 1966 and the Union the previous February at no time exceeded 50 percent of the employees in the unit During the crucial month of September when the demand for resumption of negotiations was made , only 8 of the Respondent's 20 unit employees were signatory to the checkoff authoriza- tion cards Only seven cards had been forwarded to the Respondent 6 Taft Broadcasting, WDAF-TV, AM-FM. 201 NLRB 801, Southern HARPETH STEEL, INC. 547 the certification year had, thus, long since expired. Thereafter, there remains only the question as to whether those factors on which the Respondent relies on withdrawing recognition from, and refusing to bargain with, the Union are sufficient to cast serious doubt upon the latter's continued majority status-a presumption no longer set in cement. In my view, that presumption is no longer tenable in the face of the record before us. On September 19, 1972, the day of its refusal to recognize the Union, Respondent knew, as indicated by its letter of refusal, that the Union's strength had deteriorated to the point where the employees, who had signed cards the previous February, no longer constituted a majority of the employees involved. This knowledge, supported by the statement of the union representative at the arbitration hearing on September 8 that the Union had no members prior to February and the failure of the Union to supply further evidence of its majority thereafter, upon being apprised by the Respondent of the precise reasons for its stated doubts, would logically lead to the conclusion that the Union's support in February represented its maximum strength among the em- ployees. Moreover, the Union had not communicat- ed with the Respondent for almost 2 months after the Respondent had made its final proposal on July 7, either by requesting further bargaining or by submit- ting its own contract proposals. Nor did it take strike action, as it earlier threatened to do, to enforce its demands. Further, there is not a scintilla of evidence that this demonstrated deterioration in employee support for the Union resulted in any manner from unfair labor practices committed by the Respondent. Indeed, the Administrative Law Judge found that the Respondent had bargained in good faith for over 3 months, even in the face of an apparent impasse, and my colleagues do not dispute that finding. Nevertheless, my colleagues would adopt the Administrative Law Judge's finding that the Respon- dent violated the Act by refusing, on and after September 19, to bargain with the Union. The Administrative Law Judge "considered" the forego- ing and concluded merely that the Respondent did not have a "good faith doubt based upon objective considerations that the Union no longer represented a majority of the employees in the appropriate bargaining unit" (emphasis supplied.) Further, ac- cording to the Administrative Law Judge, the Respondent's subsequent unfair labor practices "cast great doubt upon the purity of its alleged good faith belief of lack of union majority status." In this respect, it is abundantly clear that subsequent unlawful conduct does not estop the Respondent from relying on the objective considerations on which it justifies its earlier doubt.? And I am not satisfied that the Administrative Law Judge's subjec- tive "good-faith" assessment satisfies the require- ment that we determine whether the existence of certain objective factors extinguished the Union's rebuttable presumption of continued majority status. My colleagues have attempted to bolster the findings below by restating a series of inferences and presumptions which, to me, are not persuasive. We are not here determining whether or not majority support may have existed-we are determining whether Respondent had objective evidence suffi- cient for him to have been entitled, legally, to question such support and demand some reasonable proof that such support had, in fact, continued. The facts of this record are sufficient, in my view, to have so entitled this Respondent. Contrary to my colleagues, therefore, I would find, on this record, that the Respondent had reasonable grounds, based on the objective considerations herein discussed, for doubting that the Union continued to represent a majority of its employees and, therefore, that the Respondent's refusal to bargain with the Union, on and after September 19, 1972, did not violate Section 8(a)(5) and (1) of the Act. My colleagues offer no other ground upon which to impose a bargaining order, and I find none. Wipers, Inc, 192 NLRB 816, Viking Lithographers, Inc, 184 NLRB 139, Stoner Rubber Company, Inc, 123 NLRB 1440 ' Automated Business Systems, A Division of Litton Business Systems, Inc, A Subsidiary of Litton Industries, Inc, 205 N LRB No 35 DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on February 27 and 28, 1973, at Nashville, Tennessee. The original charge was filed on October 30, 1972. Thereafter the first amended charge was filed on Decem- ber 12, 1972, and the second amended charge was filed on January 13, 1973. The amended complaint in this matter was issued on February 7, 1973. The issues concern (1) whether Respondent has violated Section 8(a)(5) and (1) of the Act, by overall bad-faith bargaining during negotia- tions, by withdrawal of recognition of the Union, and by making unilateral changes in conditions of employment; (2) whether Respondent has violated Section 8(a)(1) of the Act by various threats; and (3) whether Respondent has violated Section 8(a)(2) of the Act by dominating and/or interfering with and aiding and assisting the Shop Committee. The General Counsel moved to amend the complaint in this matter to reflect that the Employee Committee was a party in interest. This motion was granted. The facts as litigated reflect that the committee which is a party in interest to this proceeding is more accurately described as 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the "Shop Committee." Accordingly, the name of the committee, a party in interest to this proceeding, is corrected to reflect that it is the "Shop Committee" (Harpeth Steel, Inc.), Party in Interest. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and the Respondent and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admissions therein. Harpeth Steel Inc., the Respondent, is now, and has been at all times material herein, a corporation with an office and plant located at Franklin, Tennessee, where it is engaged in the fabrication of steel. During a representative 12-month period, Respondent, in the course and conduct of its business operations, received at its Franklin, Tennessee, location, goods and materials valued in excess of $50,000 directly from points outside the State of Tennessee, and, during the same period of time, Respondent sold and shipped from its Franklin, Tennessee, plant, goods and materials valued in excess of $50,000 directly to points located outside the State of Tennessee. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Ii. THE LABOR ORGANIZATIONS INVOLVED Based upon the pleadings and admissions therein, it is concluded and found that International Association of Bridge, Structural and Ornamental Iron Workers, Shop- men's Local 733, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The General Counsel alleges, and Respondent denies, that the Employee Committee (Harpeth Steel, Inc.) is a labor organization within the meaning of Section 2(5) of the Act. The facts are not in real dispute. The facts as litigated reveal, as Respondent points out in its brief, that the Employee Committee may be more properly described as the Shop Committee. The facts are clear that on November 22, 1972, a meeting of all the employees who were working for Respondent on that day was held on company premises, that a Shop Committee consisting of five employees was elected by vote of all the employees present, and that a chairman of said Shop Committee was similarly elected. The facts also reveal that the Shop Committee held several organizational meetings thereafter with respect to the purpose and function of representing all of the employees in negotiations or discussions with the Respon- dent as to wages, hours, and working conditions. The facts reveal that after November 22, 1972, and prior to January 8, 1973, said Shop Committee had discussions with Respondent's officials concerning wages, hours, classifica- tions, vacations, and working conditions. The facts clearly reveal that said Shop Committee negotiated with Respon- dent as to a wage increase, that Respondent agreed with said Shop Committee as to the proposed wage increase, and that Respondent placed into effect such wage increase as agreed to with the Shop Committee for its employees. Considering the foregoing, it is clear, and I conclude and find that the Shop Committee was on November 22, 1972, and continuing thereafter, a labor organization within the meaning of Section 2(5) of the Act. ill. THE UNFAIR LABOR PRACTICES A. Preliminary Facts The pleadings establish the following preliminary facts: 1. At all times material herein, the following named individuals occupied the positions set opposite their names, and have been and are now, agents of Respondent and supervisors within the meaning of Section 2(l 1) of the Act: Novice Cole-president; Murray Dennis-vice president. 2. All production and maintenance employees, includ- ing truckdrivers, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act constitute an appropriate unit of Respondent's employees for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. B. The Representative Status of the Union The General Counsel alleges in his complaint that: At all times since February 25, 1966, and continuing to date, the Union has been the representative of the employees in the unit described above for the purpose of collective bargaining and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. There is no issue and the facts clearly reveal that the Union was the exclusive representative of the employees in the appropriate bargaining unit until May 14, 1972. The Respondent denies that the Union has represented a majority of the employees in the appropriate bargaining unit since May 14, 1972. The facts are not disputed and it is clear that on or about February 25, 1966, a majority of the employees of Cole Steel Company, Inc., now Harpeth Steel, Inc., in the unit described above, by a secret ballot election conducted under the supervision of the Regional Director for Region 26 of the Board, designated and selected the Union as their representative for the purpose of collective bargaining with Cole Steel Company, Inc., and on or about March 7, 1966, said Regional Director certified the Union as the exclusive collective-bargaining representative of the employees in said unit. The facts are not disputed and it is also clear that a collective-bargaining agreement between the Union and Respondent covering the employees in the unit described HARPETH STEEL, INC. 549 above was, by its terms for 3 years, effective May 1, 1969, and due to expire on April 30, 1972, but by agreement of the parties, the expiration date was extended to May 14, 1972, at which time the collective-bargaining agreement expired. The above referred-to collective-bargaining agreement contained union-security and checkoff provisions. During the period of time from on or about May 1, 1969, to February 1972, the facts reveal that for practical purposes none of Respondent's employees were members of the Union nor had their dues checked off for the Union by the Respondent . There is no evidence of overt expression of employee dissatisfaction with the Union as their exclusive bargaining representative. In February 1972, the Union secured 13 members from among Respondent's employees, secured signed authoriza- tions for dues checkoff from such members, and transmit- ted copies of such authorizations to Respondent on February 25, 1972. It is undisputed that the Union on February 25, 1972, requested negotiations with the Respondent with respect to a new collective bargaining agreement , that the Respon- dent and the Union met in negotiation sessions on April 21, 27, and 28, that the parties agreed to extend the expiration date of the old contract to May 14, 1972, and that further negotiating sessions were held on May 6, 18, and 30, and on July 7, 1972. During the session of May 6, 1972, it appeared to the parties that an impasse had been reached, and agreement was reached to secure the services of a Federal Mediator. The sessions of May 18, 30, and July 7, 1972, were held with the Federal Mediator . During the last session the Respondent made what it characterized as its final proposal. The Union rejected the same. Nothing further occurred as regards negotiations until the Union wrote letters to the Respondent on September 6, and 12, seeking further negotiations. On September 19, 1972, the Respondent's attorney replied to the Union's request for negotiations by letter as is revealed by the following excerpts from said letter. On September 6 and September 12, 1972, you wrote me and proposed a further meeting for the purpose of negotiating a collective-bargaining agreement between my client, Harpeth Steel, Inc., and Shopmen's Local 733. As you undoubtedly recall, the collective-bargaining agreement between Shopmen's Local Union 733 and my client expired, by its terms, on April 30,1972. Due to the inability of the Union and the Company to reach agreement on the terms of a collective-bargaining agreement, the contract was extended, by mutual agreement on April 28, 1972, to expire at midnight on May 14, 1972. Since no agreement was reached on a new collective-bargaining agreement by the expiration of the extension, the contract expired at midnight May 14, 1972. On February 25, 1972, Shopmen's Local 733 forwarded three documents to Harpeth Steel, Inc.: A. A letter representing a grievance filed by the Union against the Company; B. A letter enclosing checkoff authorizations of thirteen employees executed between February 22 and February 25, 1972; and C. A letter 'notifying the Company of the Union's desire to terminate the collective-bar- gaining agreement on its expiration date and to negotiate a new agreement. During the arbitration of the grievance before Bernard H . Cantor, Esq., Arbitrator, on September 8, 1972, you, as business agent for the Union, admitted that the Union had no members at Harpeth Steel, Inc. prior to the week of February 20, 1972 for the entire term of the contract . Although negotiating sessions were held on April 21, April 27, April 28, May 6, May 18, May 30, and July 7, 1972, both at the Company offices and at the offices of the Federal Mediation & Conciliation Service in Nashville, no agreement was reached and you were advised by the Company that it had submitted its final proposal . Although the chief negotiator for the Union, Carl W. Franklin, stated that the proposal of the Company was unacceptable, no counter proposals were advanced nor was any strike action undertaken under the auspices of the Union or any other organization by the employees of Harpeth Steel, Inc. to support the Union's bargaining position. A period of two months has elapsed since the July 7, 1972 meeting and your letter of September 6, 1972. Further, of the employees for whom you submitted checkoff authorizations on February 25, 1972 to the Company only seven of those employees are still on the active payroll of the Company which today includes twenty-four employees. Since the Company made to you what it thought to be a fair and final offer on July 7, 1972, we see no further purpose to be gained from a meeting as requested . Additionally, we do not believe that Shop- men's Local 733 represents an uncoerced majority of the employees of Harpeth Steel , Inc. at this time and, therefore, are of the opinion that any agreement which we might negotiate with Shopmen 's Local 733 might well subject the Company to a violation of Section 8(a)(1) and (2) of the National Labor Relations Act, as amended . For these reasons, Harpeth Steel, Inc. declines to further meet and negotiate with Shopmen's Local 733 until such has been certified by the National Labor Relations Board , pursuant to an election by secret ballot , as the exclusive representative for the purposes of collective bargaining for the employees of Harpeth Steel , Inc. in a unit found to be appropriate by the National Labor Relations Board. Yours very truly, /s/ Charles Hampton White Charles Hampton White The facts are clear that the Respondent, since September 19, 1972, has refused to recognize , meet with, or negotiate with the Union. The General Counsel contends that the bargaining by the Respondent during the bargaining sessions on April 21, 1972, and at various times to and 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including July 7, 1972, was that of bad-faith bargaining. As set out later, I find and conclude that Respondent did not engage in bad-faith bargaining on April 21, and on various dates thereafter until and including July 7, 1972. Presented as an issue is whether the Union was the majority representative of the employees in the appropriate bargaining unit on and after May 14, 1972, on September 19, 1972, as of November 12, 1972, and as of January 8, 1972. It is clear as previously set forth that the Union was the certified exclusive representative of the employees in the appropriate unit. The 1966 certification creates a rebutta- ble presumption of such status. Because of the facts in this case, I find it proper to set out the facts with respect to the number of employees on Respondent's payroll and the number of employees who had executed cards, signifying their authorization of the Union as their bargaining representatives.[ Date Unit Cards Signed 1972 Feb. 6 13 20 27 23 13 Mar. 5 22 13 12 21 12 19 22 12 26 22 12 Apr. 2 21 12 9 23 12 16 21 12 23 21 12 30 20 12 May 7 21 12 14 22 11 21 22 10 28 21 10 June 4 21/22 10 11 21 10 18 19 9 25 18 9 July 2 17 9 9 17 9 16 16 8 23 15 8 30 16 8 Aug. 6 18 8 13 19 8 20 21 9 27 21 9 Sept.3 20 8 10 20 8 17 20 8 24 20 8 Oct. 1 19 8 8 18 8 15 21 8 22 20 9 29 19 10 Nov. 5 23 13 12 20 11 19 23 11 26 19 11 Dec. 3 19 10 10 18 10 17 24 10 24 26 10 31 21 10 1973 Jan. 7 22 10 14 22 10 21 23 10 28 23 10 Feb. 4 23 10 11 23 9 18 23 9 25 23 9 The presumption of continued majority status upon a Board's certification is postulated upon a considered judgment that the number of employees working for an employer will normally fluctuate within a reasonable norm, that the union membership will also fluctuate within a reasonable norm, and that employees whether actually union members or not are presumed to desire continued representation in accordance with the desires expressed in the NLRB election. There is no evidence in this case that employees engaged in any act of rejection of union representation prior to November 10, 1972. Considering all of the above facts, I conclude and find that the presump- tion of continued majority status of the Union has not been rebutted as to any period of time prior to November 10, 1972. Thus, the facts reveal that when Respondent asserted to the Union a belief that the Union no longer represented a majority of the employees in the appropriate bargaining unit, the Union was able to secure enough additional cards from employees to signify continued majority status. It is proper to infer, and I do infer that it was the desire of such employees for the Union to represent them on May 15 and thereafter, preceding September 19, and thereafter to the time of their execution of cards. The facts are clear that on November 10, the Union enjoyed a majority status of II of 20 employees. As to the question of whether the Union was the majority representative of the employees in the appropriate bargain- ing unit on January 8, 1973, I find it unnecessary to decide. As indicated, I find later that Respondent engaged in conduct violative of Section 8(a)(5) and (1) by its withdrawal of recognition and its refusal to negotiate on and after September 19, 1972. I also find later herein that Respondent violated Section 8(a)(1) and (2) of the Act, by certain conduct on November 10 and thereafter in indicating it would not meet with the Union unless recertified as the representative but would meet with the i These facts are based upon the exhibits relating to union authorization cards, dues checkoff cards, s tipulations, and an exhibit relating to employees of the Respondent on various dates HARPETH STEEL, INC. employees collectively, by interfering with and assisting the formation of an employee committee as a labor organiza- tion, and by bargaining with such committee and granting a wage increase when clearly, at most , a question concerning representation existed . Because of the compos- ite effect of the unfair labor practices , whether the conduct was violative or 8(a)(5) or not as regards the conduct on and after November 12, 1972, 1 find it necessary to properly remedy such conduct by an 8(a)(5) type remedy. Thus, the Union was the majority representative of the employees on November 10, 1972. The 8(a)(1) and (2) conduct of Respondent found later herein significantly interfered with the employees' right to have the union represent them and clearly contributed to the failure of a continuing majority of the employees to support the Union. Under such circumstances , a fair and proper NLRB representation election could not have been held, and in my opinion the normal type 8(a)(1) and (2) remedy would not restore the status quo existing prior to the unfair labor practices, and a fair NLRB representation election can not now be held until after an 8(a)(5) type remedy has remedied the total effect of the unfair labor practices. C. The Bad-Faith Bargaining Issue The General Counsel alleges in effect, and the Respon- dent denies, that the Respondent engaged in bad-faith bargaining and with no intent to enter into a final or binding collective-bargaining agreement during the bar- gaining sessions that occurred on April 21, 27, and 28, May 6, 18, and 30, and July 7, 1972. The facts relating to this issue consist of the testimony of Franklin, Cole, and White; documentary exhibits; the collective-bargaining agreement that expired on April 30, 1972; the Union's proposal submitted on April 21, 1972: the Respondent's proposal submitted on April 27, 1972; and a Respondent's proposal submitted on May 18, 1972. Essentially, the only factual dispute is whether Respon- dent, by Cole or White, gave reasons in support of some of Respondent's bargaining proposals or positions. Franklin, negotiator for the Union, testified to the effect that as to some of Respondent's proposals or positions, Respondent did not advance any reasons; and that as to some of the other positions , he did not recall whether Respondent gave reasons in support thereof. Cole and White testified to the composite effect that as to most of the positions or proposals referred to by Franklin as not having been supported by reasons, reasons were advanced . Considering the total amount of bargaining session time and subject matter discussed , it is reasonable to believe that Franklin would not remember all that was said. Franklin took notes at the bargaining sessions and refreshed his memory substantially while testifying. Considering the totality of the testimony, the written documents, and the fact that I found the testimony Cole and White worthy of belief, I credit their testimony relating to the assertion of reasons in support of their bargaining positions and proposals. Considering the totality of the testimony and documents submitted, I conclude and find that the Respondent adequately and in good faith discussed the bargaining proposals during he bargaining sessions. I have considered the bargaining proposals, the discus- 551 sion of the proposals at the bargaining sessions, and I am persuaded that the facts reveal that Respondent engaged in good-faith bargaining during the bargaining sessions held on April 21, 27, and 28, May 7, 18, and 30, and July 7, 1972. The bargaining commenced on April 21, 1972, just prior to the expiration of an existing contract on April 30, 1972. The Union's initial contract proposal as compared to the contract due to expire may be said to have constituted a proposal for additional benefits and protection for the employees involved . The Respondent's initial contract proposal as compared to the contract due to expire may be said to have constituted a decrease in benefits and addition of qualifications restricting benefits . Bargaining is not in a vacuum. The parties had an existing contract, and the Union had been certified since 1966 . Despite this and the fact that the existing contract contained union -security and checkoff provisions, prior to February 1972, the employer had not been furnished with checkoff cards from its employees for the deduction of dues for the Union. Parties, even when bargaining in good faith, may be expected to postulate their bargaining proposals upon their evaluation of the economic strength each has in support of his position. The Respondent's proposal as a whole came within the perimeter of the terms of the collective -bargaining agree- ment due to expire on April 30, 1972. The Respondent's proposal eliminated some of the provisions in the due-to- expire contract. Thus, Respondent's proposal did not include provisions concerning union-security or checkoff provisions, concerning the specific exclusion of the international union as a party, and other provisions not necessary to refer to herein. The Respondent's proposal included, inter alia, changes as to the time that an employee would be probationary, as to classifications, as to the number of holidays and eligibility therefore, and as to "requirements" for overtime. Considered as a whole, Respondent's proposal can not be described as the type that would reveal that it was intended to offer the Union a proposal that a self- respecting union could not accept . Similarly, it can not be said to be one that in and of itself revealed bad faith and lack of intent to enter into a final or binding collective- bargaining agreement. Much of the initial sessions concerned discussions of classifications . There were discussions of each party's proposal on and before April 28, 1972. The facts reveal that each of the parties was for practical purposes sticking to its own proposals and positions on April 21, 27, and 28. Respondent's counsel suggested and initiated an agreed-to extension of time as to the expiration of the old contract with the new expiration date to be May 14, 1972. Bargaining continued on May 6, 1972, with virtually no progress . The parties were in practical agreement at such time that an impasse had been reached and decided to seek the services of a Federal mediator. Bargaining sessions utilizing the services of a Federal mediator took place on May 18 and on May 30, 1972. Without going into all the details, it may be said that the highlights of disagreement concerned the shift hours and 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overtime requirements, holidays, holidays eligibility, and the question of the employees' probationary penod. The disagreement and positions on the shift hours and overtime requirements are illustrative of the parties' bargaining positions. As indicated previously, the Respon- dent's basic contract proposal was submitted to the Union on April 27, 1972. With respect to the question of hours of employment, the, Union's proposed contract was to continue the same provisions of the existing contract as regards the hours of employment provisions. The Respon- dent's proposal as to shift hours was to continue the same shift hours. The Respondent's proposal contained signifi- cant changes as regards the requirements of employees to work overtime. The Union's bargaining representatives opposed the Respondent's overtime provisions. The Res- pondent on May 18 then submitted a proposal relating to hours of overtime and proposed shifts of hours based on a 10-hour regular workday. When one or two shifts were to be employed, the regular workweek was to be 4 days and 40 hours. When three or four shifts were to be employed, the regular workweek would he 3 days and 30 hours. This proposal relating to shift hours and overtime was included in Respondent's final proposals on May 18 and 30 when it indicated that it would agree to the old contract excepting for changes in Sections 7, 8, and 9 thereof, and with wage offers of 1-1/2-percent yearly increase each year for 3 years (the offer on May 18, 1972) and with wage offers of 2- percent yearly increase each year for 3 years (the offer on May 30, 1972). The Respondent's proposals relating to shift hours and overtime provisions which were made on May 18, 1972, were different from its April 27 proposal. The Union, however, had clearly opposed the proposed overtime provisions. Respondent's May 18, 1972, proposals appear to be a bargaining technique to obtain Respondent's original desired flexibility as to the requirements of employees to work overtime. The May 18, 1972, proposals relating to shift hours and overtime further appear to enhance Respondent's economic position as to overtime and to minimize individual employee's receipt of overtime pay. Cole explained at the bargaining sessions that his reasons for the shift hours and overtime provisions were based upon considerations that overtime had been exces- sive from an economic viewpoint, that absenteeism had been a factor, and that he believed the employees would like a 4-day week, 10-hour-a-day schedule. The question of wages was not discussed until the bargaining sessions held with the aid of the Federal mediator on May 18 and 30, 1972, and on July 7, 1972. What occurred at these sessions is not in real dispute and is revealed by the following credited excerpts from Franklin's testimony. Events of May 18, 1972 Q. What time was this meeting set for? A. It was set for 10:00 a.m. Q. Well, what happened on the 18th? A. When we got into the room, there was two separate conference rooms at the Federal Mediation Office. And the company was-The Company went into a session among themselves, I reckon. They were in the building, they were in the Federal Mediation area there, but they were in the Conference Room there by themselves and didn't show in the room with us until noon. s # s s s Q. (By Mr. Irby) Without relating what Mr. Bradley may have said, did you in fact meet with the Company on this date, the 18th? A. Yes, we did. Q. All right. Now, what was discussed between you and the Company? Were these hours and wage classifications discussed? A. Yes, we did. We discussed the classifications. This time we were talking about 53 classifications, which was actually 23 different classes of work. Q. From which side of the Company's proposals were there 53 different classifications? A. Well, it was the Company's proposal. Q. Very well. After discussion of the classifications, what else did you discuss, other than the classifica- tions? A. Well, Mr. Cole made a statement, something to the effect, the only way the Company can compete is to increase efficiency. We went on through and we discussed pros and cons about what had taken place over the last few years since they had gone into-since 1966. We adjourned at 1:00 and came back at 2:00. The Commissioner opened the meeting, by stating that the Company had a proposal. Mr. White made a statement that, technically the contract ran out Sunday night, but they're not aware of the fact that-they were aware of the fact that it was the fault of neither of us. So here's the Company's proposal: "Three-year agree- ment. Old contract, except Section 7, which consists of four 10-hour shifts, and their proposal on Section 8, as of May 6, their proposal on Section 9, as of May 6, with eight paid holidays, the Company proposal on 9(c), as of May 6, which was a 60-day probationary period, and Section 10(a), classifications as the current agreement, Section 17, work days, that's the probationary penod. No change in Section 13 or Section 14. The rest of the contract as is, which will be a three-year agreement, with a one-and-one-half percent across the board increase each year to be effective May 1, 1972, one- and-a-half percent May 1, 1973, and one-and-a-half percent May 1, 1974. And that proposed contract would expire April 30, 1975." They stated that the above-offerred would remain open until May 19, mid-night. If not accepted by that time, it will be withdrawn. I responded to this by telling Mr. White that if that was the case, then he could withdraw it now. I told him that if he was serious about that proposal, it will not be accepted by tomorrow night or any other time. And that was the end of that meeting. Q. A. Q. Events of May 30, 1972 When was your next meeting? The next meeting was on May 30. Where did this meeting take place? HARPETH STEEL, INC. 553 A. This meeting also took place in the offices of the Federal Mediation. Q. All right. What happened at this meeting? A. The Union and the Company got together at 10:40. We gave the Company a proposal of 12 percent across the board. And Mr. White asked for a caucus. And he stated that we had not given them a proposal on wages before. And I responded by stating that I was of the opinion that they had been given a proposal of 15 percent. Then the Company returned at 11:05 p.m., and the Company stated- Q. (Interrupting) 11:05 p.m.? A. I mean 11:05 a.m., I'm sorry. The Company stated that they had met and discussed our proposal. They had considered our proposal and would like to have an agreement. Our proposal is not legal, he stated, at 12 percent. The Company proposal is no longer on the table. They offered another proposal effective June 1, 1972 to April 30, 1975. Section 7, four 10-hour days. Section 8 as prior proposal, that was the Company's proposal. Section 9, Company's proposal 60 days. Section 17, probationary penod 60 calendar days. Section 10, classifications as is, effective May 1, 1972, two percent, May 1, 1973, two percent, May 1, 1974, two percent He stated that this proposal was open until mid-night May 31, 1972. I told the Company that we want an agreement, but we don't want to put a yolk on our people, and we don't intend to do so. I told Mr. Cole that he wanted a prison with a fence around it, but we would-but he would never have it with this Local Union. The meeting adjourned at 11:25. (It is noted that the facts reveal that the Union had not made a wage proposal for a 15-percent increase in wages prior to May 30, 1972.) Events of July 7, 1972 Q. Were there any other meetings after this one on May 30? A. 7/7/72. Q. All right, where was this meeting? A. It was with the Commissioner, too, 10:00 a.m. Q. What happened at this meeting? A. The Company came in 45 minutes late. I reported to the Company that at the last meeting that they had given us a proposal and that had been unanimously rejected. Mr. Bradley asked if we had any proposal for the Company, and I told him that in light of the Company's position on ours, etcetera, we had nothing to offer. Then, I changed to this by stating that we would offer to reduce our wage demand by one percent. This would mean an II percent across the board, with the remaining portion of our proposal as the same. This was done at that time to show a change in the Union position. White told us that our proposal was unacceptable and asked to see the Commissioner. (It is noted that the Company did not come to the meeting late. The parties, however, did not get together for a joint meeting for a period of time after 10 a.m.) The parties had no further contact as to negotiations until the Union wrote letters in September 1972 seeking further negotiations. Considering the totality of Respondent's conduct during the negotiating sessions, highlighted by the facts above discussed, I am persuaded that the facts reveal that Respondent engaged in hard but good-faith bargaining during the bargaining sessions on and after April 21 and through July 7, 1972. The Respondent met with and bargained as to a collective-bargaining agreement on April 21, 27, and 28, initiated an agreed-to extension of the old contract while bargaining was in progress, ultimately in May 1972, retreated on many positions and offered wage increases of 1-1/2 percent and then 2 percent per year. The Union's ultimate wage offers were of 12 percent and then decreased to a Il-percent wage increase. The bargaining occurred during the time of wage controls, and it appears that both parties may have had this point in mind with respect to a final meeting place of agreement. Under such circumstances, I am persuaded, and conclude and find that the facts do not reveal that Respondent engaged in bad- faith bargaining and with no intent to enter into a final and binding agreement as alleged on April 21, 1972, and thereafter in bargaining sessions. I conclude and find that Respondent has not violated Section 8(a)(5) and (1) of the Act by its conduct in bargaining as regards the bargaining sessions on April 21 and to and including the bargaining session of July 7, 1972. D. The Withdrawal of Recognition The General Counsel alleged in his complaint in effect that Respondent, on or about September 19, 1972, withdrew and continues to withhold recognition of the Union as representative of the employees in the appropri- ate bargaining unit and did refuse to meet with and/or bargain with the Union. The Respondent, in its answer, admitted that on or about September 19, 1972, it declined to meet further with the Union or to bargain with the Union with respect to negotiation of a new collective-bargaining agreement until the Union again demonstrated majority status in a representation proceeding conducted by secret ballot under the auspices of the National Labor Relations Board. I have previously found that the Union was in fact the exclusive bargaining representative of the employees involved on September 19, 1972. Essentially, the facts reveal no evidence of employee dissatisfaction with union representation during the time of the Union's certified status from 1966 until November 10, 1972, no dissatisfac- tion with union representation during the time of the collective-bargaining agreement between May 1, 1969, and April 30, 1972, the extension thereof until May 14, 1972, or between May 14 and September 19, 1972. Employees may desire union representation even though they do not become members; they may desire to have benefits without paying dues or otherwise belonging to a union. As indicated previously, there are presumptions of majority flowing from the Union's certified status, from contractual relationships, and even from the mere fact of establishment of majority status. Certainly, where a union is engaging in collective bargaining for a unit of around 20 employees 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has approximately 5 of such employees participating in the bargaining, the employees in the unit are aware that the Union is representing them . Under such circumstances, absent some objective evidence of dissatisfaction by the employees in the unit , it is to be presumed that the Union is the desired representative of the employees . Further, when employees in the unit execute authorization, mem- bership, or dues check-off cards, as done in the instant case, at a later date, an inference can be drawn under the circumstances of this case that those employees approved of the Union as their representative prior to September 19, 1972. The question of proof of majority status or exclusive bargaining representative status is an evidentiary matter. Proof may be presented of direct evidence , such as membership cards, dues check-off cards, polls, and of other acceptable evidence . Proof may be presented of a presumptive nature such as evidence of a Board 's certifica- tion of exclusive representative status, or of collective- bargaining agreements . The Board's certification , after (- year, constitutes presumptive evidence of exclusive repre- sentative status which can be rebutted. Board cases have often described that the presumption of exclusive status conferred by a Board certification can be rebutted after 1 -year by a good-faith doubt by a Respondent based upon objective consideration. In Terrell Machine Company, 173 NLRB 1480, the Board set forth: It is well settled that a certified union, upon expiration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues.' This presumption is designed to promote stability in collective -bargaining relationships, without impairing the free choice of employees.2 Accordingly, once the presumption is shown to be operative, a primafacie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful . The prima facie case may be rebutted if the employer affirmatively establishes either ( 1) that at the time of the refusal the union in fact no longer enjoyed majority representative status; 3 or (2) that the employer's refusal was predicat- ed on a good-faith and reasonably grounded doubt of the union's continued majority status . As to the second of these, i.e., "good faith doubt," two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations4 and it must not have been advanced for the purpose of gaining time in which to undermine the union .5 [Footnotes omitted.] As indicated, considering all of the objective facts, I have concluded and found that the Union was the exclusive bargaining representative of the employees in the appropri- ate bargaining unit on September 19, 1972. Next to be considered is whether Respondent, on September 19, 1972 , had a good-faith doubt, based upon objective and well grounded reasons, that the Union did not represent a majority of the employees in the appropri- ate bargaining unit ; and, if so whether such doubt could constitute a basis for its refusal to bargain with the Union which was in fact the exclusive bargaining representative for the employees involved. The evidence relating to this issue may be summarized as follows: ( I) The Union was certified as exclusive bargain- ing representative for the employees involved in 1966. (2) There were collective -bargaining agreements between the Employer and the Union covering the employees involved during the period of time May 1, 1966, to April 30, 1972. (3) There is no evidence that the Union did not service said employees during the contract period . Cole credibly testified to having been in contact with the Union several months prior to February 25, 1972 . (4) Excluding the knowledge of the certified status of the Union and the existence of a collective -bargaining agreement containing union-security and check-off provisions, the above re- ferred-to contacts with the Union, the Respondent appar- ently had no knowledge of individual union members after May 1969, excepting those for whom dues-checkoff authorization cards were submitted by the Union in February 1972. The number of employees for whom such dues-checkoff authorization cards were submitted was 13. (5) Wright, the union representative , made a statement on September 8, 1972, at an arbitration proceeding that he had not had any members among Respondent's employees prior to February 1972. (6) Between February 25, 1972, and September 19, 1972, six of the employees for whom dues-checkoff authorization cards had been submitted on February 25, 1972, had ceased to work for the Employer. No new dues-checkoff authorization cards had been submitted after February 25, 1972 , to the Employer. (7) Respondent and the Union had engaged in bargaining sessions on April 21 , 27, and 28, May 6, 18, and 30, and on July 7, 1972. Respondent's conduct in bargaining had been on a good-faith basis. (8) The Union did not contact the Respondent for further bargaining after July 7, 1972, until September 6, 1972. (9) The Union did not call a strike among the employees involved at any time in 1972 prior to September 19, 1972, in support of its bargaining demands. (10) Cole, Respondent's President , testified that the decision to withdraw and withhold recognition from the Union on September 19, 1972 , was legal counsel's decision. (11) Respondent's counsel on September 19, 1972, sent the Union the letter relating to its withdrawal and withholding of recognition from the Union and its reasons therefor. The Respondent also contends that the fact that only six employees appeared at the September 8, 1972, arbitration proceeding constitutes objective basis for a good-faith doubt of the Union's majority status. It is sufficient to say that this argument is without merit. The Union's letter of February 25, 1972, relating to a grievance of employees being misclassified referred to 15 employees . Six of these 15 referred-to employees were no longer employed by Respondent on September 8, 1972. One of the employees referred to was on the Respondent's payroll but had been ill and had not actually worked for a number of months as of September 8, 1972 . Six of the 8 remaining employees referred to were present at the arbitration proceeding on September 8, 1972. In sum , the failure of some of the named employees involved in the classification grievance to be present at the arbitration meeting does not objective- ly reveal lack of support for the Union. HARPETH STEEL, INC. 555 Considering all of the foregoing , I am not persuaded that the Respondent had a good -faith doubt based upon objective considerations that the Union no longer repre- sented a majority of the employees in the appropriate bargaining unit . The objective facts do not rise above strong speculation . They are not sufficient , as previously indicated to cast a doubt upon the reliability of a presumption of continued exclusive representation status on the part of the Union . Furthermore, actions in dealing on a collective basis with its employees in November and December 1972, and in January 1973, while refusing to negotiate with the Union, cast great doubt upon the purity of its alleged good -faith belief of lack of union majority status. In sum, I conclude and find that the Respondent, on September 19, 1972, did not have a good-faith doubt as to the Union's right to be accorded exclusive bargaining representative status. Accordingly, I conclude and find that Respondent, by its admitted refusal to meet and negotiate with the Union on and after September 19, 1972, violated Section 8(a)(5) and (1) of the Act. E. The Strike Events-November 7-10, 1972 At the end , of the week on November 5, 1972, the Respondent had 23 employees on its payroll. Of these 23 employees, 13 had executed cards (membership , authoriza- tion, or dues-checkoff authorization) for the Union. Six of these cards had earlier been transmitted to the Respon- dent . On November 7, 1972, Grissom signed a union card bringing the total number of employees who were on the payroll as having signed union cards to 14. During the week, employees Basham and Pratt left the Respondent's employment. The record does not reveal exactly when Basham and Pratt last worked during the week of November 12, 1972. Respondent's counsel's questions indicated a contention that Basham and Pratt last worked on November 7, 1972. Considering the contentions, it is clear that there were 23 employees on Respondent's payroll as of November 7 and that, of this number, 14 had executed union cards. Around 14 of the employees who had executed union cards had a meeting at a community center in Franklin, Tennessee, on November 7, 1972, and decided to have a strike. The reasons that these employees decided to go on strike were the fact that negotiations between the Union and the Respondent were not getting anywhere and the fact that the Union could not get a negotiation meeting set up with the Respondent. On November 8, 1972, Respondent's employees com- menced a strike . This strike lasted for 3 days, November 8, 9, and 10. All but two of Respondent's employees honored the picket line. Two of Respondent 's employees (Larry Carter and Marvin Brown , Jr.) continued to report for work . As indicated, Respondent had 23 employees on the payroll on November 7, 1972. The number of employees on Respondent's payroll decreased by three during the week of November 12, 1972. L. C. Kinnard was terminated on November 8, 1972. Basham and Pratt left Respondent's employment during the week . Perhaps, as indicated by questions presented by Respondent's Counsel, but not established , Basham and Pratt left Respondent 's employ- ment on November 7, 1972. During the strike, 2 of the 23, 21, or 20 employees on Respondent's payroll continued to cross the picket line. The rest of the 23, 21, or 20 employees, excepting perhaps for the one or two employees who were ill (Miles and L. C. Kinnard), honored the picket line. Dodson testified that there were 13 or 14 "out on strike." Boshers testified that there were 15 "out on strike." William Crawford testified that 16 "participated" in the strike. It is difficult to tell whether these were estimates of employees honoring the picket line or estimates of those affirmatively supporting the strike otherwise. Considering the evidence relating to the employees who had signed cards, the facts warrant an inference that at least I I to 14 employees were affirmative- ly supporting the strike at any given point of time therein. As best gathered from the record , the strike was initiated and carried on by Respondent's employees on their own. No evidence was presented to reveal that the Union had anything to do with the initiation or conduct of the strike. Wright testified, however, that his last contact with the employees prior to the trial of this matter occurred when he was called by some employees who told him the strike was over. As indicated, little evidence as to the details of the strike was presented . No evidence was presented to reveal whether the pickets carried signs , and if so, what the legends on such signs were. Nor was any evidence presented to reveal whether the strikers communicated the purpose of the strike to Respondent. The General Counsel's clear position at the trial was that he was not alleging that the strike was an unfair labor practice strike. The General Counsel's position was that the evidence was adduced relating to the question of the Union's majority status. The only evidence as to the number of employees who were on the picket line consisted of the testimony of Robert Crawford and Murray Dennis. Thus, Crawford testified that there were roughly 10 to 12 employees on the picket line. Dennis, one of Respondent's officials, estimat- ed that there were around 10 employees on the picket line on the occasions that he crossed the picket line. If considered with respect to a burden of Respondent to establish a good-faith doubt based upon objective consid- erations that the presumption of majority status of the Union should be rebutted, the facts relating to the strike do not establish Respondent's burden. If considered with respect to a burden of the General Counsel to in fact establish a majority status for the Union, absent a presumption of majority status, the facts would not establish such burden for the General Counsel. F. Events of November 10, 1972 At some point of time during the 3-day strike, employees Robert Turnage and Dwight Henson went into Respon- dent's offices and met with President Cole and Vice President Dennis. The employees asked Cole and Dennis if they would meet with all of the employees. The employees told Cole and Dennis that the men on the picket line would like to meet with management. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cole and Dennis told the employees in effect that they could not and would not meet with them, that, however, if the employees were having coffee some place, Cole and Dennis might have coffee at the same place. It is clear from the facts that management (Cole and Dennis) agreed to meet with some of the employees at a specified time and place. It is also clear that all involved would know that Cole's and Dennis' remarks were made in a sophisticated manner to rationalize such agreed meeting as not being a meeting. Later, on November 10, 1972, Cole and Dennis met an employee committee at the Holiday Inn. The employee committee consisted of employees Zamitalo, Robert Crawford, Henson, Turnage, and Dodson. The General Counsel alleged that Respondent, by Cole, committed violations of Section 8(a)(1) during the referred to meeting on November 10, 1972. The issues are as follows: 1. The General Counsel alleged, and Respondent denied, that Respondent, by Cole, on or about November 10, 1972, threatened to close its plant unless its employees deserted the strike then in progress. 2. The General Counsel alleged, and Respondent denied, that Respondent, by Cole, on November 10, 1972, threatened to replace employees who were engaged in said strike. The witnesses to these issues were Dodson, Robert Crawford, Cole, and Dennis. In general, Dodson's and Crawford's testimony is not sufficient to determine in a chronological and complete context what occurred. Cole's and Dennis' testimony was essentially presented in a summary fashion. Despite this, it may be said that there is a thrust of the facts as to the specific issues. Considering the testimony of Dodson, Crawford, Cole, and Dennis in composite effect and in the context of the logical consistency of all the facts, I conclude and find that Cole on November 10, 1972, discussed with Dodson and Crawford the pending strike, told Dodson and Cole that he could have brought in other workers to replace the strikers, that he had not wanted to do that, that he respected their position in striking, and that rather than bring in other employees, he would rather just close the doors down.2 Considering the foregoing, I am not persuaded that Cole's remarks constitute conduct violative of Section 8(a)(1) of the Act. The employees were on strike. The General Counsel does not contend that the strike was an unfair labor practice strike. Under such circumstances. the Respondent had a right to attempt to operate his plant with replacement employees. His statement concerning the fact that he could have replaced the employees is essentially correct, although technically incorrect in that it may be said that such replaced employees retain certain rights of future potential reemployment. Further, a Respondent does not have to resist employee strike pressure by attempting to operate his plant during a strike. His remarks were not to the effect that he would permanently close the plant, but merely that he would rather close the doors than 2 Some of Cole's and Dennis' testimony might he construed as a denial that Cole referred to the fact that he would rather close the doors to the plant If so, it is discredited. 1 believe Dodson's testimony despite the leading nature of the questions directed to him bring in other employees. It is the General Counsel's burden to establish conduct violative of Section 8(a)(1). He has not met this burden. Accordingly, I conclude and find that the facts do not reveal that Respondent violated Section 8(a)(1) of the Act by Cole's remarks about replacement of the employees on strike and as to "closing the doors." 3. The General Counsel alleged, and the Respondent denied, that the Respondent, by Cole on November 10, 1972, told its employees that he would go broke fighting a union before he would sign a contract with the Union. The General Counsel's evidence in support of this issue consists of the testimony of Robert Crawford which is revealed by the following excerpts from Crawford's testimony: 3 Q. Do you recall whether Mr. Cole, at this time, said anything about what he would do before he signed a contract with the Union. A. No. sir. Q. Do you recall what he said whether he would go broke fighting the Union before he would sign such a contract? A. Yes, sir, he did say that, I believe. Dennis testified in denial that Cole had made remarks about going broke fighting the Union before he would sign a contract. Cole adopted Dennis' testimony in such regard. I credit Dennis' testimony. I am not persuaded that Crawford's recollection is accurate and reliable and goes beyond a "belief." I discredit his testimony as to this issue. Accordingly, it is concluded and found that the General Counsel has not established that Respondent violated Section 8(a)(l) of the Act as alleged in this regard. 4. The General Counsel alleged, and Respondent denied, that Respondent, by Cole, on November 10, 1972, told employees that he would not meet with the Union but would meet with the employees. The credibility resolution with respect to this issue is difficult. The testimony of General Counsel's witnesses Dodson and Crawford was presented in a piecemeal and fragmentary manner and was elicited by leading questions. The testimony of Dennis was largely summary in fashion. Cole's testimony in large part constituted an adoption of Dennis' testimony. In considering the determination of credibility as to this issue, it must be noted that Cole stated that he was not agreeing to the meeting on November 10, 1972, when he indicated that he could not meet with the employees but they could get together by coincidence for coffee. Further, the facts reveal that later Cole did meet with a committee. All of the witnesses appeared to have truthful demeanor. In balance, I am persuaded that Dennis' testimony that Cole did not flatly say he would meet with the committee is truthful and so credit. I am persuaded that Crawford and Dodson construed Cole's total remarks about the committee as being an agreement to meet with the committee. The facts as to what occurred is revealed by the following excerpts from the testimony of the witnesses. J The reLord at p. 31. I 3 is corrected by substitution of the word "fighting" for fining This is based upon my recollection of what transpired and is agreed to by the parties HARPETH STEEL, INC. 557 Excerpts from Dennis' testimony A. It was a lot of conversation, Your Honor. I don't remember exactly who said what. But the thrust of it was that the men would like to return to work, and that one of their fellow employees, Mr. Ralph Zamita- lo, had suggested the idea to them that it might be a good idea if they form a shop committee, which would be composed of their fellow employees, elected by them. It would consist of a yet determined number. The committee's purpose would be to meet and discuss with management the working conditions of the plant. At this point, I am persuaded that Cole made the following remarks as revealed by the following credited excerpts from Dodson's testimony. Excerpts from Dodson's testimony A. Well, he said that it seemed that we could sit down like men and settle our own problems amongst ourselves. Cole then related to Dodson and Crawford that the Respondent was not in negotiations with the Union and would not meet further with the Union until it won in an election conducted by the National Labor Relations Board. Considering all of the facts, I conclude and find that Cole did not flatly say that he would meet with the employees collectively but not with the Union. However, Cole's remarks, coupled with his sophisticated agreement to meet with three employees on November 10, 1972, certainly carried the message that he would meet with the employees collectively but not with the Union until it demonstrated majority status in a National Labor Rela- tions Board election. In my opinion, this conduct is violative of Section 8(a)(1) of the Act. The facts reveal that the Union was the exclusive collective-bargaining repre- sentative of the employees involved on November 10, 1972. To indicate that Respondent would meet with the employees but would not meet with the Union, under such conditions, clearly interferes and restrains the employees in their right to self-organization. Even if the Union were not the exclusive collective-bargaining representative of the employees involved, under the circumstances there would exist, at most, a question concerning representation. Under such circumstances, to agree to meet with employees collectively without a showing that this was the desire of a majority of such employees, and to indicate a refusal to meet with the. Union unless it demonstrated its majority status, constitutes interference and restraint of the employ- ees as to their right to engage in self-organizational efforts. In short, it is clear that Respondent, by Cole, on November 10, 1972, violated Section 8(a)(1) of the Act by remarks calculated to be construed as agreement to meet with the employees collectively but not to meet with the Union until it demonstrated its majority status in a Board election. It is so concluded and found. The Termination of the Strike After the five employees met with President Cole and Vice President Dennis at the Holiday Inn on November 10, 1972, the employees returned to the picket line and discussed what had occurred with the other employees on strike. The employees then voted on whether to continue the strike or to return to work. A majority of the employees voted for returning to work on Monday, November 13, 1972. The record indicates that the strike terminated on November 10, 1972. It is absolutely clear that the strike terminated before the employees returned to work on Monday, November 13, 1972. The Events of November 13, 1972, and Thereafter The employees returned to work on Monday, November 13, 1972. On Wednesday, November 15, 1972, President Cole called a meeting of all employees. This meeting was held in the company shower room and commenced at 3:30 p.m. and lasted about 30 minutes. All of the employees who were working attended the meeting. Respondent's officials Cole and Dennis were present. What occurred is revealed in part by the following credited excerpts from Dennis' testimony: A. We informed the employees that-first of all, we were glad to see them back to work. And secondly, we obviously realized there were some things that they were unhappy about. But at this point, we could only listen to anything, any suggestions they might have. But under advise of Counsel, we could not respond to them due to a NLRB charge was pending against us. Zamitalo, an employee, suggested that the employees could form a shop committee, told the employees that he had worked at a plant that had had a shop committee, explained how the shop committee had worked, and expressed the idea that a shop committee at Harpeth Steel, Inc., would be a good idea. Cole expressed the idea that the shop committee was a good idea, that it would be good to have a committee to work with the Company, that the men should talk among themselves, should do whatever they wanted to do, and should form their own committee or do whatever they wanted to do.4 Some of the employees had requested further meetings. On November 21, 1972, the Respondent posted the following notice. Notice TO: All Shop Employees FROM: Murray Dennis, Vice President DATE: 11-21-72 IT IS MANAGEMENT'S DESIRE TO MEET WITH ALL SHOP EMPLOYEES. 4 i have considered the question of logical consistency of facts , the fact that Respondent did strongly participate in the formation of the shop committee on November 22, 1972, and that Respondent dealt with such committee despite the continuation of pendency of unfair labor practice charges I am persuaded that Cole , in a manner similar to his remarks about the planned November 10. 1972. meeting. spoke to the employees in a doubletalk fashion 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE PURPOSE OF THIS DISCUSSION WILL BE TO LISTEN TO YOUR POSITION ON VARIOUS MA rTFRS AFFECTING THE WORKING ARRANGEMFNrS OF THIS SHOP. THE TIME AND PLACE OF THE MEFTING WILL BE WEDNESDAY AFT ERNOON, NOVEMBER 22, AT 3:30 P.M. IN THE SHOP WASH ROOM. WE HOPE EVERYONE WILL ATTEND. /s/ Murray Dennis, Vice President All of Respondent's employees who were working on November 22, 1972, along with Respondent's officials, including Cole and Dennis, attended this meeting. The facts relating to the November 22, 1972, meeting were presented in a piecemeal and generalized manner. The facts as established by a composite of the credited testimony of all witnesses thereto may be summarized as follows: 1. All of the employees working on November 22, and Respondent's officials Cole and Dennis were present for the entire meeting. 2. The employees decided to form a shop committee. 3. The employees elected Robert Crawford as tempo- rary chairman for the meeting. 4. Robert Crawford had some difficulties functioning as chairman. On occasion, President Cole attempted to help Robert Crawford out of his difficulties as is revealed by the following credited excerpts from William Craw- ford's testimony: Q. And what do you recall Mr. Cole saying at this meeting? A. Well, someone had brought up a subject, and then another would bring up another. And he would say, well, Mr. Chairman, suggest this. Or, Mr. Chair- man, suggest that. And then we'd all put up a vote and decide. Exactly what Cole said when he made suggestions to Robert Crawford concerning what to do as chairman is not revealed. The thrust of the evidence, however, reveals that the suggestions were not substantive in nature but were ministerial .6 5. The employees nominated and elected a five-man shop committee, and nominated and elected a chairman of the five-man shop committee. The elections were by secret ballot. 6. Neither Cole. Dennis, nor any other official nomi- nated or voted for any of the positions filled. 7. Robert Turnage was the employee who was elected as chairman of the Shop Committee. Turnage requested of management that there be other meetings. Turnage then adjourned the meeting. Events after November 22, 1972 After the November 22, 1972, meeting, the Shop Committee held some meetings for organizational purpos- es. It is not clear whether there were several such meetings or not. It is clear that one such meeting occurred around ' At most of the meetings that occurred there were other company supervisors present with Cole and Dennis 6 To the extent that Cole and Dennis denied that suggestions were made, December 8, 1972. What occurred at this meeting is revealed by the following credited excerpts from Dennis' testimony: A. Well, like I said, it was mainly an organizational meeting for the committee itself to determine which committee-man would be responsible for what areas, for working done-for working conditions. They chose up among themselves that one would take vacations, undertake this, that, and the other. They assigned other employees of the shop to each committee-man, so that Tie would have a certain number of shop employees under him. And if they had any suggestions or complaints, they would come to him. Q. Now, how long did this meeting last? A. Maybe an hour-and-a-half, an hour. In addition to the employees on the Shop Committee, Respondent's officials Cole and Dennis were present at the meeting. The meeting which took place on or about December 8, 1972, took place in the company conference room. Thereafter, at some point of time prior to January 8, 1973, the Shop Committee discussed, among themselves, the question of a wage increase and decided to propose a wage increase to the Respondent. There is no evidence to reveal whether this meeting of the Shop Committee preceded or followed the following announcement by the Respondent which was posted around January 2, 1973. Notice January 2, 1973 THE NEXT MEETING BETWEEN MANAGEMENT AND THE SHOP COMMITTEE WILL BE HELD ON MONDAY , JANUARY 8, IN THE OFFICE CONFERENCE ROOM. ANY INTERESTED PARTIES ARE INVITED TO ATTEND. however, IN THE INTEREST OF TIME , PLEASE VOICE YOUR OPINIONS THROUGH YOUR COMMITTEE CHAIRMAN. /s/ Murray Dennis Murray Dennis Executive Vice President On January 8, 1973, Respondent's officials met with the Shop Committee. What occurred is revealed by the following credited excerpts from Dennis' testimony. Q. After this meeting on or about December 8, 1972, were there any further meetings? A. Yes, there was. Q. When? A. January 8. Q. All right, will you tell us where that meeting was held and who was present, as best you can remember? A., This was also held in the Conference Room of the company. All five committee-men were there this time. Mr. Cole was there, and I was there, Mr. Elmer Thomas, Jr. was there, possibly the shop superintend- ent. I'd have to refer to my notes. I discredit such testimony Essentially, the matter is one of witnesses interpreting what is a suggestion. HARPETH STEEL, INC 559 Q. All right What was the subject of this meeting? A. The subject of this meeting was pure and simply a request from the committee for across-the-board wage increase. Q. Now, Mr. Dennis, the contract expired by its terms on April 30, 1972. It was extended to May 14, 1972. State whether or not, at any time after May 14, 1972, through December 31, 1972, any of the employ- ees of Harpeth Steel had received wage increases. A. No, they had not. Q. Now, what happened on or about January 8, 1972? A. The committee presented the demand, as I said, for a 5.5 percent across-the-board wage increase. Management requested that we caucus about this, which we did for about 10 minutes. And we came to the conclusion that the increase was within reason and decided to grant it. The Respondent, around January 8, 1973, placed into effect the agreed wage increase for its employees retroac- tive in effect to January 1, 1973. Subsequent to January 8, 1973, there have been no specific requests by the Shop Committee for further meetings with the Respondent, and there have been no further meetings between the Respon- dent and the Shop Committee. Considering all of the foregoing, I am persuaded and conclude and find that Respondent, in violation of Section 8(a)(1) and (2) of the Act, interfered with the formation and administration of the Shop Committee, and rendered unlawful aid and assistance to the Shop Committee. Thus, on November 22, 1972, and thereafter, Respondent recognized and bargained with the Shop Committee as the exclusive representative of the employees in the appropri- ate bargaining unit. It is clear that Respondent' s unfair labor practices, including unlawful withdrawal of recogni- tion of the Union and interference with employee rights by expressions of refusal to bargain with the Union but that it would meet with employees, undermined the Unions' majority. It is also clear that even if Respondent had not engaged in such unfair labor practices, there existed at least a question concerning representation. Under such circumstances, recognition of and bargaining with the Shop Committee constituted interference with employees' organizational rights, and constituted unlawful aid and assistance to the Shop Committee. The facts are clear that Respondent's officials Cole and Dennis were present at the November 22, 1972, meeting wherein the Shop Committee was formed. Respondent summoned the employees to this and similar meetings . Cole and Dennis were also present at the various organizational meetings of the Shop Committee held after November 22, 1972. It is clear that the presence of Respondent's officials, Cole and Denms, at the various meetings interfered with employees' organizational rights, and interfered with and constituted aid and assistance to the Shop Committee. Employees as a result of Respon- dent's total conduct were clearly shown that the Respon- dent did not want to deal with the Union, but preferred to deal with the employees collectively or with an employee committee . The issuance and posting of notices concerning employee meetings, Shop Committee meetings, and urging employees to work through the Shop Committee, under the circumstances, clearly interfered with employees' organiza- tional rights and constituted unlawful aid and assistance to the Shop Committee. Permitting the Shop Committee to use company premises, similarly, constituted interference with employee organizational rights and constituted unlawful aid and assistance to the Shop Committee. Finally, under all the circumstances set forth beforehand herein, the bargaining and agreement with the Shop Committee as 'to a wage increase on January 8, 1973, clearly interfered with employee organizational rights and constituted unlawful aid and assistance to the Shop Committee In sum, I conclude and find, as alleged, that Respondent violated Section 8(a)(1) and (2) of the Act by the above-described conduct. The General Counsel alleges and contends, and Respon- dent denies, that Respondent dominated the Shop Com- mittee by the conduct referred to above and that Respondent thereby violated Section 8(a)(1) and (2) of the Act. Essentially, the question is whether Respondent's conduct, as described, constituted domination or constitut- ed unlawful interference , aid, and assistance. In my opinion, the facts warrant a finding of unlawful interference with, and unlawful aid and assistance to, the Shop Committee. A close question is presented as to whether the totality of Respondent's conduct in such regard amounted to Respondent's domination of the Shop Committee. The facts reveal that the totality of Respon- dent's conduct as regards its relationship with the Shop Committee reveals extremely strong interference with employees' organizational rights, and unlawful aid and assistance to the Shop Committee. The cases cited by the General Counsel (Eugene and Veronica McManus, co- partners d/b/a Sunrise Manor Nursing Home, 199 NLRB 1120; and Drives, Incorporated, 172 NLRB 969) on a factual basis appear to be substantially similar to this case insofar as the degree of interference , unlawful aid, and assistance is involved. In neither of these cases did the Board find the facts to constitute domination of the committee or plan involved. In the instant case, the facts reveal that the idea of a Shop Committee was suggested by an employee. The Respondent did not suggest the names of persons to be selected on the committee, and no supervisory person voted in the selection of the individuals on the committee. The General Counsel argues that there was no arms- length bargaining as to the wage increase agreed to on January 8, 1973. As I see the facts, the Respondent considered the committee to be a weak creature and agreed to what it was willing to do to mollify employee discontent as to wages. It very well may have been that Respondent, during negotiations with the Union earlier, would have agreed to a similar increase . Averaging out Respondent's wage increase offers to the Union, the wage increase would have averaged out on the proposed 3-year term to 3 percent and to 4 percent as compared to the 5.5-percent increase agreed to on January 8, 1973. One cannot say that Respondent would not have agreed to the Union's demanded wage increase if it had dropped closer to the 5.5- percent figure. The distinction between whether a Respondent has unlawfully dominated a labor organization, committee or 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plan or has only interfered with and unlawfully aided and assisted such labor organization, committee or plan is one of degree. If the Respondent creates such labor organiza- tion, committee, or plan, then the labor organization, committee or plan is Respondent 's creature and can be disestablished by the Respondent. If the labor organiza- tion, committee, or plan is not Respondent's creature, then Respondent should not be required to disestablish such organization but only to remove its unlawful aid and assistance from such organization. Of course, as a practical matter, if a labor organization, committee, or plan is so weak that its continued existence is dependent upon aid and assistance from a Respondent , removal of such unlawful aid and assistance virtually destroys the unlawful- ly assisted labor organization, committee, or plan, insofar as the employees are concerned. In the instant case, the remedy recommended for the removal of Respondent's unlawful aid and assistance to the committee would appear to virtually obtain the same result as a disestablishment remedy, especially when a concurrent remedy is the requirement that Respondent bargain with the Union, as is required in this case. I am not persuaded that the totality of the facts reveal that the Respondent dominated the Shop Committee. Rather, I am persuaded that the Respondent interfered with the formation of the Shop Committee , rendered unlawful aid and assistance to the Shop Committee, and dealt with a "weak" representative accordingly. The General Counsel also alleged, and Respondent denied, that Respondent violated Section 8(a)(5) of the Act by according recognition to the Shop Committee on or about November 13, 1972. I have already found that Respondent violated Section 8(a)(1) and (2) of the Act by recognizing and bargaining with the Shop Committee . I do not find it necessary to determine whether such conduct violated Section 8(a)(5) of the Act. The composite effect of the unfair labor practices requires remedies of the same type as would be imposed if a finding of a violation of Section 8(a)(5) in such regard were made. The Wage Increase Alleged Refusal To Bargain The General Counsel alleged, and Respondent denied, that the Respondent, on or about January 12, 1973, unilaterally changed existing wage rates and other terms and conditions of employment of the employees in the appropriate bargaining unit. The facts are clear that Respondent bargained with the Shop Committee as to a wage increase, agreed with the Shop Committee as to a wage increase, and placed such wage increase in effect around January 8, 1973. It is clear that Respondent did not bargain with the Union as regards the wage increase granted on or around January 8, 1973. It is clear that Respondent by the foregoing conduct, in connection with all the facts in this case, interfered with employees' organizational rights in violation of Section 8(a)(1) of the Act . I do not find it necessary to determine whether Respondent violated Section 8(a)(5) of the Act by such conduct . Because of the composite effect of all of the unfair labor practices by the Respondent, the remedy required for such violative conduct will be the same, whether such conduct is deemed violative of Section 8(a)(5) or only of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respon- dent cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. Having found that Respondent has violated Section 8(a)(5) and ( 1) of the Act by its withdrawal of recognition and refusal to bargain with the Union , it will be recommended that the Respondent, upon request, bargain with the Union as the exclusive representative of its employees in the appropriate unit . It will also be recom- mended that Respondent, if requested to do so by the Union, rescind the wage increases granted as a result of bargaining with the unlawfully assisted Shop Committee. However, it is provided that absent request for the rescinding of such wage increases , nothing in this decision requires the withdrawal of such wage increases. Having found that Respondent interfered with, and unlawfully assisted and aided, the formation of the Shop Committee, it will be recommended that Respondent withdraw and withhold recognition of such Shop Commit- tee until such time as said Shop Committee may be certified by the Board as the employees' exclusive bargaining representative. Because of the character of the unfair labor practices herein found , the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Harpeth Steel, Inc., the Respondent , is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Bridge , Structual and Ornamental Iron Workers , Shopmen's Local 733, is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. 3. The Shop Committee (Harpeth Steel, Inc.), is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. 4. By interfering with the formation of, and rendering HARPETH STEEL, INC. 561 aid and assistance to, the Shop Committee, Respondent has violated Section 8(a)(2) and (1) of the Act. 5. All production and maintenance employees, includ- ing truckdrivers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act constitute an appropriate unit of Respondent's employees for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times on and after February 25, 1966, and until November 10, 1972, the Union was the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions. Such loss of majority as may have occurred thereafter resulted from Respondent's unfair labor practices found herein. 7. By withdrawing recognition of the Union on September 19, 1972, and by thereafter withholding recogni- tion from and refusing to bargain with the Union, Respondent has violated Section 8(a)(5) and (1) of the Act. 8. By the above, and by expressing that Respondent would meet with and bargain with employees but would not meet with or bargain with the Union until recertified by the Board, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby Respondent has engaged in unfair labor practices pros- cribed by Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? Respondent, Harpeth Steel, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling employees that it will meet with them collectively, or with a committee of such employees, but that it will not meet with or negotiate with the Union until it is recertified by the National Labor Relations Board as the exclusive representative of its employees. (b) Refusing to bargain collectively with the Union as the exclusive representative of the employees in the unit herein found to be appropriate. (c) Interfering with the formation or administration of the Shop Committee or any other labor organization of its employees. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request bargain collectively with the Interna- tional Association of Bridge, Structual and Ornamental Iron Workers, Shopmen's Local 733, as the exclusive representative of Respondent's employees in the unit herein found appropriate and embody any understanding reached in a signed agreement. The appropriate bargaining unit is as follows: All production and maintenance employees, including truck drivers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Upon request by the Union, rescind the wage increases granted in January 1973 as a result of agreement with the Shop Committee. However, it is provided that nothing in this Decision or Order requires the rescinding of such wage increase as granted unless the Union so requests. (c) Withdraw and withhold recognition from the Shop Committee as a representative of its employees unless and until such time as the Shop Committee is so certified by the National Labor Relations Board. (d) Post at Respondent's plant at Franklin, Tennessee, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. ' In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order and all objections thereto shall be deemed waived for all purposes. B 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our employees that we will meet with them collectively, or with a committee of employ- ees, but that we will not meet or negotiate with the Union until it is recertified by the National Labor Relations Board as exclusive representative of our employees. WE WILL NOT interfere with the formation or administration of the Shop Committee or any other labor organization of our employees. WE WILL NOT refuse to bargain collectively with the Union as the exclusive representative of the employees in the unit herein found to be appropriate. WE WILL NOT in any other manner interfere with, 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrain , or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain collectively with the Union, the International Association of Bridge , Struc- tural and Ornamental Iron Workers , Shopmen's Local 733, as the exclusive representative of our employees in the unit herein found appropriate and embody any understanding reached in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees, including truck drivers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL, upon request by the Union , rescind the wage increases granted in January 1973 , as a result of agreement with the Shop Committee. However it is provided that nothing in the Decision or Order requires us to rescind such wage increase as granted unless the Union so requests. WE WILL withdraw and withhold recognitions from the Shop Committee as a representative of our employees unless and until such times as the Shop Committee is so certified by the National Labor Relations Board. Dated By HARPETH STEEL, INC. (Employer) (Representative) I (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Clifford Davis Federal Bldg., Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.