Portland Wire & Iron Works

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tube-Lok Products, Eastern Division of Portland Wire & Iron Works and Shopmen's Local Union No. 518 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 14-CA-7378 March 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 2, 1973, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and has ordered us to post this notice. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Shop- men's Local Union No. 518 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: 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, as modified below, and hereby orders that the Respon- dent, Tube-Lok Products, Eastern Division of Port- land Wire & Iron Works, Mattoon, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraphs l (c) and 2(a) of the recom- mended Order and reletter the remaining subpara- graphs accordingly. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. I While Respondent advised the employees that "our pension plan" was not implemented because of the uncertainties of prospective bargaining demands, and thereby violated Sec. 8(a)(I) of the Act, as found by the Administrative Law Judge, the record does not support the Administrative Law Judge's conclusion to the effect that a pension plan already formulated was not implemented , in violation of Sec 8(a)(3). What the record shows is that Respondent was giving serious consideration to a pension plan when it decided not to proceed further with its formulation in the face of the Union's becoming bargaining representative with the likelihood that it would have a pension plan of its own to propose. We therefore do not believe that the record warrants the finding of an 8(a )(3) violation and an order that Respondent "Implement the pension plan which was withheld" as recommended by the Administrative Law Judge All production and maintenance employ- ees at our Mattoon, Illinois, facility, exclud- ing office clerical employees, professional employees, watchmen, guards, and supervi- sors as defined in the Act. WE WILL NOT refuse to supply information requested by the Union which is relevant to and necessary for the purposes of collective bargain- ing. WE WILL NOT tell employees that there is nothing to gain from collective bargaining. WE WILL NOT tell employees that a pension plan has not been put into effect, as proposed, because they selected the above-named Union as their representative for purposes of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. All our employees are free to become and remain members of Shopmen's Local Union No. 518 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization. 209 NLRB No. 108 TUBE-LOK PRODUCTS 667 TUBE-LOK PRODUCTS, EASTERN DIVISION OF PORTLAND WIRE & IRON WORKS (Employer) Dated By (Representative) (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. DECISION STATEMENT OF THE CASE made untrue and misleading statements to employees that Respondent was not subject to wage control provisions of the President's economic stabilization program: that virtually unlimited wage increases were legal and possible; that Respondent had not increased wages to the maximum amount allowable under existing, wage controls; that Respondent's representations to the contrary were lies; and that Respondent was lying to its employees "all the way." In addition, Respondent alleged that Local 518 misrepre- sented that it had achieved raises up to 62 cents an hour for employees situated similarly to those employed by Respon- dent. Respondent alleged further that on January 11, the day of the election, the Union undertook a telephone campaign to inform employees falsely that all limitations on wage increases had been removed by the Federal Government. After investigation, the Regional Director issued a Supplemental Decision in which he overruled the objections in their entirety and certified the Union. Thereafter, Respondent filed with the Board a request for review of the Regional Director's Supplemental Decision which request was denied by the Board on the ground that it raised no substantial issues warranting review. Since its certification, the Union has requested that Respondent bargain with it and Respondent admits that it has refused to do so. HENRY L. JALETTE, Administrative Law Judge: This proceeding arose out of a charge and first amended charge filed by Shopmen's Local Union No. 518 of the Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Union, on April 25 and May 23, 1973,1 pursuant to which complaint issued on May 31, alleging that Tube-Lok Products, Eastern Division of Portland Wire & Iron Works, herein called the Respondent, had engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. On July 18, hearing was held in Charleston, Illinois. On the basis of the entire record herein, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I hereby make the following: FINDINGS OF FACT 1. INTRODUCTION Respondent is an Oregon operation with a plant in Mattoon, Illinois, where it is engaged in the manufacture, sale, and distribution of rollover protective canopies for heavy equipment and related products.2 On January 11, a majority of Respondent's employees in a production and maintenance unit, by a secret ballot election conducted under the supervision of the Regional Director for Region 14 of the National Labor Relations Board, designated and selected the Union as their representative for purposes of collective bargaining with Respondent. On January 16, Respondent filed timely objections to conduct affecting the results of the election alleging that at meetings of employees on the afternoon preceding the election representatives of the Union had All dates are in 1973 unless otherwise indicated. z Commerce is not in issue. The complaint alleges, the answer admits, and I find, that Respondent meets the Board's direct outflow standard for II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Refusal to Bargain It is evident from the introductory section above that this is a test of certification case. At the hearing, Respondent offered to prove the allegations which had been the subject of its objections to the election conceding, however, that it was not proposing to adduce any newly discovered or previously unavailable evidence, nor did Respondent assert that there were any special circumstances which would require the Board to reexamine the decision made in the representation proceeding. In short, Respondent did not raise any issue properly litigable in this proceeding respecting the validity of the certification.3 Accordingly, I find that Respondent was obligated to recognize and bargain with the Union which had been duly certified and that by its refusal to do so Respondent violated Section 8(a)(5) and (1) of the Act. In addition to requesting recognition and bargaining, the Union requested that Respondent supply it with certain information respecting the employees in the unit and respecting certain conditions of employment. The informa- tion was clearly relevant to collective bargaining and necessary to the Union's effective exercise of its representa- tive status. Respondent concedes this and admits its refusal to supply the information for the same reason that it refused to recognize and bargain with the Union. As I have found that the Union was duly certified and that Respondent was obligated to recognize and bargain with it, it follows that Respondent was obligated to supply the Union with the requested information and its refusal to do so was violative of Section 8(aX5) and (1) of the Act. the assertion ofjunsdiction a See Pittsburgh Plate Glass Company v N.LR.B, 313 U.S. 146, 162 (1941) 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Not content with two findings that Respondent violated Section 8(a)(5) and (1) of the Act, General Counsel alleged a third way in which Respondent refused to bargain. Thus, according to Union Representative Ervin Huebner, on or about April 23, he telephoned Respondent's attorney, James Ruyle, in Portland, Oregon, and told him heatedly that he was tired of getting the runaround from the plant manager and the plant receptionist in Mattoon, Illinois, and he wanted to know whether Ruyle or Plant Manager Glen Hamner or some other company representative was going to enter into negotiations. Ruyle replied that neither he nor the Company would meet with the Union's negotiating committee at that time, but that another lawyer from his firm could meet with Hamner or some other union representative if the Union would guarantee that there would not be a wage ' increase, otherwise the Company would not meet for fear of jeopardizing its position with respect to the objections and the request for review. This testimony of Hamner's was not denied, and General Counsel contends it supports an additional 8(a)(5) finding. I do not agree. Although the complaint alleges that Respondent violated Section 8(a)(5) and (1) by the foregoing conduct, the complaint failed to give notice to Respondent that the violation was attributed to Respondent's attorney. The first notice Respondent's attorney had of his involvement in the litigation was when Huebner testified. Attorney Ruyle made timely objection because to meet Huebner's testimo- ny he would either have to testify in violation of the Canons of Legal Ethics or withdraw from the case and have another lawyer from Portland, Oregon represent Respondent. The second alternative was clearly not practical and attorney Ruyle chose to leave Huebner's testimony undenied. In my judgment, under these circumstances, plus the fact that the incident is clearly trivia which adds nothing to the case, and is of dubious merit (General Motors Acceptance Corporation, 196 NLRB 137, is so different factually that it does not support General Counsel's position), I shall recommend that the allegation be dismissed. B. The Alleged Interference, Restraint, and Coercion 1. The April 18 incident On April 17, Huebner went to the plant to meet Plant Manager Hamner face to face and to request negotiations. He was first told that Hamner was not at the plant but remained there till the shifts changed and was advised by three employees who were members of the Union's negotiating committee that Hamner was indeed in the plant. In view of this information Huebner presented himself to the plant receptionist again and after a few minutes Hamner appeared to talk to him and the negotiating committee . Huebner told Hamner that his purpose in being there was to request bargaining and Hamner's reply was to accuse Huebner of engaging in illegal conduct by parking his car on company property and talking to production employees on company proper- ty. Hamner asserted that Huebner could be arrested for this and Huebner replied it was possible Hamner could have him arrested, but if that happened, as he was elected representative of the people in the plant, they would probably be right out on the street with him. Hamner replied, "Don't threaten me with a strike." Huebner disclaimed any threat of a strike and said what they wanted to do was enter into negotiations. According to Huebner, Hamner said "if you shut us down it is only going to take us a matter of time. I would like to have my work done in other plants. It won't take me that long to have my work taken care of." Employee and negotiating committee member James Abernathy also testified about the incident of April 17 and he confirmed Hamner's warning to Huebner that he was subject to arrest for trespassing and Hamner's reply that all the men would walk out with him. According to Aberna- thy, Hamner replied to this by saying "if we went on strike he would have the matter taken care of within 24 hours, that the men would only be hurting themselves and the person that would be receiving good paychecks and these men would have no income at all, not a bit." William J. Moomaw4 also testified about the incident, confirming Hamner's warning about an arrest and Hueb- ner's reply about the men walking out. According to Moomaw, Hamner's comment was that he could probably get his work done in the other plants. The conversation of April 17 had concluded with a promise by Hamner to get in touch with Respondent's attorney and to notify Huebner about the start of negotiations. On the following day, Moomaw was called to Hamner's office and Hamner told him he had been unable to talk to his people in Portland to set a date for negotiations. According to Moomaw, Hamner remarked that if they kept having a lot of union trouble they might get the work done someplace else. He said that there were two companies interested in buying the building. Although the complaint alleges that Hamner threatened an employee with plant closure on April 17, it appears that the allegation is addressed to Hamner's conversation with Moomaw on April 18 and not to Hamner's remarks on April 17. As I construe Hamner's remarks on April 17, they were not unlawful because Hamner merely was advising the Union that if the employees went on strike, Respon- dent would get its work done elsewhere as it had a right to do. The remarks attributed to Hamner on April 18 by Moomaw are somewhat ambiguous, but arguably they could be construed as a threat of plant closure because employees have elected to be represented by a union for purposes of collective bargaining. Whether such a con- struction of the remarks would be warranted need not be decided, because I do not credit Moomaw's testimony that the remarks were made. Hamner denied making the remarks and I credit him. Moomaw had a very poor recollection of what was said, remembering only snatches of conversations and pleading a lack of recollection about all matters which he felt might reflect adversely on him. In my judgment, his testimony was not deserving of credence, and I shall recommend dismissal of this allegation. 4 Moomaw's name is incorrectly spelled in the record TUBE-LOK PRODUCTS 2. The May 4 incident The complaint alleges that on or about May 5, Plant Superintendent Starwalt interrogated an employee about a meeting with a union representative and threatened plant closure by telling an employee, Respondent's plant would relocate to avoid unionization. Those allegations are based on the testimony of Moomaw. Plant Superintendent Starwalt admitted that on May 4 he telephoned Moomaw and asked him about a meeting, but he denied making any mention of plant relocation. According to Starwalt, he called Moomaw to find out what had occurred at a meeting between Moomaw and Board agents investigating the charge in the instant case; however, he did so only because a few days earlier Moomaw had approached him and Hamner and volun- teered the information that he was to meet with a Board agent and offered to provide them with information about the meeting. They accepted the offer and when Starwalt called Moomaw it was to obtain the promised information. In so doing, Respondent displayed an inordinate curiosity about the Board's investigation, but that curiosity had been whetted by Moomaw and the question presented is whether any employee was interfered with, restrained, or coerced in the exercise of Section 7 rights by Respondent's conduct. I fail to see how Starwalt's inquiry about the meeting could have any tendency to interfere with, coerce, or restrain Moomaw in view of Moomaw's offer of information. Accordingly, I shall recommend dismissal of the allegation of interrogation. As to the allegation of a threat of plant relocation, I shall recommend dismissal because I credit Starwalt's denial that he made any threat. 3. The April 23 letter On April 23, Respondent mailed a letter to its employees in which it explained its position with regard to bargaining with the Union. The complaint alleges that three state- ments in the letter were violative of Section 8(a)(1) of the Act. (1) After setting forth its objections to the election and the Board's refusal either to set the election aside or direct a hearing, Respondent stated, "With the NLRB refusal to conduct a fair election we are [in] a period of a standstill as far as the Union is concerned. We will, of course, continue to pursue whatever legal avenues are available to obtain a new election for you." General Counsel contends that statement was tanta- mount to a statement that Respondent would refuse to recognize and bargain with the Union in order to test the validity of the certification and that such a statement violates Section 8(a)(1) of the Act. In support of this contention General Counsel cites The May Department Stores Company, 191 NLRB 928, where the Board, Chairman Miller dissenting, held that a statement by an employer to its employees that it would refuse to recognize and bargain with a certified union in order to test the validity of a certification violated Section 8(a)(1) of the Act. In my judgment, the statement of Respondent was too ambiguous to warrant a finding that it was an announce- ment to employees that Respondent was refusing to 669 recognize the Union. What does "we are at a period of a standstill" mean? As a matter of fact, Respondent was refusing to recognize the Union to test the certification, but the issue is not what it was doing in that regard; rather, the issue is what did it tell its employees. As it did not say it was going to refuse to bargain and thereby commit an unfair labor practice , and, as the statement it made contained no threat of reprisal or promise of benefit, I find that it was not violative of Section 8(a)(1) of the Act. (2) The letter also contained the following statement, "Frankly, we cannot believe that a majority of you wish to commit yourselves to the obligations of union representa- tion and the uncertainty of contract bargaining with nothing to gain therefrom." General Counsel contends this statement interfered with, restrained, and coerced employ- ees because it impressed upon them the futility of selecting a union as their collective-bargaining representative. Respondent denies that the letter said anything to the effect that collective bargaining would be futile, but the above-quoted portion of the letter lends itself to no other construction. As a preelection statement, the interference with employees' Section 7 rights that inheres to a statement of the futility of selecting a collective-bargaining represent- ative is readily apparent. Forewarned about the futility of selecting a collective-bargaining representative, employees may very well be dissuaded from exercising their Section 7 rights. In a postelection context, they have exercised their right of selection and it is less apparent how a statement that it was exercised in futility can interfere with that right. But the employees' Section 7 rights are not exhausted by a vote for union representation. Employees have the right to lend support and adhere to the Union they had selected. Their willingness to do so is interfered with when they are told they have nothing to gain by doing so. Moreover, in this case the postelection warning of futility was part of a more complete statement to employees that the election was invalid and that Respondent was seeking a new election. Prospectively, therefore, the statement will oper- ate to discourage them from again voting for union representation because of the predicted futility of making such a choice. For these reasons , the statement must be deemed unlawful interference with the right of employees to select a representative for purposes of collective bargaining. (3) The third statement in the letter alleged to be unlawful is the following : "Our pension plan would also have been implemented on that date as proposed except for the uncertainties of prospective bargaining demands." According to General Counsel, this statement was an attempt to undermine the Union's support and was violative of Section 8(a)(1) as a threat of loss of benefits. In my judgment, the statement was more than a threat of loss of benefits. It was a clear statement that a particular benefit would have been given to the employees (that is, implemented) but that it was being withheld from them because they had selected a bargaining representative. The coercive thrust of such a statement even in isolation is readily apparent, but even more so when one notes that it follows a statement that nothing is to be gained by collective bargaining and a reminder that on January 1, a 23-cent per hour wage increase had been put into effect. I 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that the statement was violative of Section 8(a)(1) of the Act. C. The Alleged 8(a)(3) Conduct The complaint alleges that Respondent refused to implement the pension plan in order to discourage union activities on the part of its employees and thereby violated Section 8(a)(1) of the Act. If I understand Respondent's position correctly, it had not adopted a pension plan, or decided to institute a pension plan at the plant herein prior to the election; rather all Respondent had done was consider the idea of a pension plan and study various types of plans. However, this study was abandoned after the election, not because the employees had selected the Union to represent them, but because, as stated in Respondent's brief, ". . . as is well known, drafting and governmental approval of a pension plan is a complex procedure, not logically to be pursued when, with the prospect of collective bargaining, it can be assumed that the energy thus expended will have been in vain." Respondent's arguments are not persuasive. In the first place, they require that I overlook the anomaly of the assertion that pension plan studies were dropped because of the prospects of collective bargaining when contempora- neously Respondent was refusing to recognize and bargain with the Union on the ground the certification was invalid. If it was invalid, there were no prospects of collective bargaining to deter implementation of the pension plan. In the second place, they require that I accept the representations of Respondent, and Hamper's testimony, that the pension plan as a condition of employment was merely in the study stage as a possible benefit to be granted employees. I cannot accept such representations because they are contrary to the clear statement in the April 23 letter that "Our pension plan would also have been implemented on that date as proposed." In short, accord- ing to Respondent's own statement, its consideration of a pension plan had proceeded further than the study stage and it had in fact adopted a pension plan, referred to in the letter as "our" pension plan. Thus, it had made a pension plan a condition of employment.5 Respondent adverts to the nature of pension plans and the fact that most contain no immediate benefits. It argues from this that the effect of its withholding of a pension plan on employees was nil. I do not agree. The absence of immediate benefits may go to the remedy to be provided for Respondent's unlawful failure to implement a pension plan, but not to the effect of its failure. Had Respondent implemented a pension plan as it proposed to do, the employees would have had that plan as a condition of employment when the Union, as their collective-bargaining representative, entered into negotiations. While Respon- dent could have proposed in negotiations a cancellation of 5 As the court stated in Armstrong Cork Company v N.LR B, 211 F.2d 843 (C A. 5), the definition of "condition of employment " includes not only what the employer has already granted, but also what he "proposes to grant." 6 In that case, the withholding of the wage increase was also found to be violative of Sec. 8(a)(5), although the complaint did not, as here, allege an 8(a)(5) violation in that respect An 8(a)(5) finding would also be the plan, the Union would have been in a better bargaining position than if it had to propose the very adoption of a plan. While, on the one hand, an employer is not required to bargain upward and may seek to bargain away benefits, so long as he bargains in good faith, on the other hand, a union is not required to bargain from scratch . It is entitled to the maintenance of existing conditions until it agrees otherwise or a bona fide impasse has been reached. By failing to implement the pension plan as proposed, Respondent effected a change in existing conditions to the detriment of the employees. Respondent argues its decision was motivated by sound business considerations and that there is no evidence that it was unlawfully motivated. I do not agree. According to employee Abernathy, in the week preceding the election, Hamner - and Starwalt held meetings of groups of employ- ees in which they described existing benefits and informed employees they were going to better the pension plan. Starwalt did not testify on this subject and while Hamner did, he did not specifically address his testimony to Abernathy's averments. He did testify that there was no pension plan in effect at the Mattoon plant thereby indirectly contradicting Abernathy's testimony that they were going to better the pension plan, but he said nothing about the group meetings . I credit Abernathy, who either misunderstood what was promised or was imprecise in his testimony, and I construe his testimony as a promise by Respondent to put a pension plan into effect. According to Abernathy, the promise was made "if the Union was not voted in." Such a statement indicates clearly Respondent's unlawful motive in refusing to implement its decision to put a pension plan into effect. But even apart from the foregoing, a finding of unlawful motivation is warranted on the basis of Respondent's own admission that the pension plan was not implemented because of the uncertainties of prospective bargaining. In United Aircraft Corporation, Hamilton Standard Division (Boron Filament Plant), 199 NLRB 658, the employer withheld a promised wage increase because in the interval between the promise and the date it was to be effective the employees had selected a union to represent them for purposes of collective bargaining and the employer anticipated that wages would be part of any package it would be asked to agree to in collective bargaining. The Board found that the withholding of a wage increase for such a reason was unlawful conduct violative of Section 8(a)(3) and (1) of the Act .6 I find likewise. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce permissible here because Respondent by withholding implementation of the pension plan acted unilaterally in" derogation of the Union's right to be notified and consulted. However, an additional 8(a)(5) finding would add nothing to the case. At the heart of the case is the validity of the certification, and once that issue has been resolved there is no reason to believe Respondent will act unilaterally. TUBE-LOK PRODUCTS 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 Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As to a pension plan, I shall recommend that Respon- dent implement the pension plan it had proposed to put into effect and which it withheld because the employees selected the Union as their representative for purposes of collective bargaining. As to Respondent's refusal to honor the certification and to recognize and bargain with the Union, in order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, I shall recommend that the initial period of certification be construed as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). CONCLUSIONS OF LAW 1. Tube-Lok Products, Eastern Division of Portland Wire & Iron Works, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local Union No. 518 of the International Association of Bridge, Structural and Ornamental Iron- workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Mattoon, Illinois, facility, excluding office clerical employees, professional employ- ees, watchmen, guards. and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 12, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing since on or about February 12, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargain- ing representative of all its employees in the appropriate unit, and by refusing on or about February 15, 1973, and thereafter to supply the Union with information relevant to and necessary for purposes of collective bargaining, r 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. 671 Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8 (a)(5) and (1) and 2(6) and (7) of the Act. 6. By telling employees that it would be futile to select a representative for purposes of collective bargaining and that it would not implement a pension plan as proposed because the employees had selected the Union as their representative for purposes of collective bargaining, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 7. By failing to implement a pension plan as proposed because employees had selected the above-named Union as a representative for purposes of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 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, Tube-Lok Products, Eastern Division of Portland Wire & Iron Works, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Shopmen's Local Union No. 518 of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All production and maintenance employees employed at Respondent's Mattoon, Illinois, facility, excluding office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. (b) Refusing to supply the information requested by the above-named Union on or about February 15, 1973, or any other information requested which is relevant to and necessary for the purposes of collective bargaining. (c) Discouraging membership in, or activities in behalf of, the above-named Union, or any other labor organiza- tion of its employees, by withholding implementation of a proposed pension plan because employees selected the above-named Union as their representative for the purpos- es of collective bargaining. (d) Telling employees that collective bargaining would be futile. (e) Telling employees that a proposed pension plan has been withheld because they selected the above-named Union as their representative for the purposes of collective bargaining. (f) In any like or related manner interfering with, 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall he deemed waived for all purposes 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restraining, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Implement the pension plan which was withheld from employees because they selected the Union as their representative for purposes of collective bargaining. (b) Upon request, bargain collectively with the above- named Union as the exclusive representative of all the employees in the unit described above, and, if any understanding is reached, embody such understanding in a signed agreement. (c) Furnish to the above-named Union the information requested on or about February 25, 1973. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of Respondent's compliance with its obligation to implement a pension plan as provided in this recommended Order. (e) Post at its Mattoon, Illinois, facility copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint found not have been sustained by a preponder- ance of evidence be dismissed. 8 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board." Order of the National Labor Relations Board" shall be changed to read