F. Strauss and Son, Inc.

F. STRAUSS & SON, INC. 95 F. Strauss and Son, Inc. and Retail Clerks International Association, Local 210, AFL-CIO. Case 15-CA-5084 January 7, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On August 30, 1974, Administrative Law Judge Louis S. Penfield issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief to the Respondent's exceptions. 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. We find, as the Administrative Law Judge did, that Respondent's chief negotiator amended the proposed duration of the June 7 contract offer from 3 years to 9 days, the time remaining in the certification year, by his remarks at the beginning of the November 29 negotiating session. We also agree that Respondent bargained in bad faith by offering the Union a contract whose duration was limited to the remain- der of the certification year. The Administrative Law Judge decided to treat this amendment as a nullity because it was violative of the Act. Contrary to the Administrative Law Judge, we give effect to this amendment and, therefore, do not find that the Union's subsequent acceptance of the original June 7 contract offer,' including its 3-year duration clause, meant a contract had been formed. Accordingly, as Respondent and the Union did not on November 29 or on any other occasion reach agreement as to all of the provisions of a collective-bargaining contract, we shall modify the recommended remedy by limiting it to the requirement that Respondent, upon request, bargain in good faith with the Union, and, if an understanding is reached, embody it in a signed contract.' 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 Respondent, F. Strauss and Son, Inc., Monroe, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following paragraph for para- graph 2(a): "(a) Upon request, bargain collectively in good faith with Retail Clerks International Association, Local 210, AFL-CIO, as the exclusive representative of its employees in the unit herein found appropriate for collective-bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed contract." 2. Substitute the attached notice for that of the Administrative Law Judge. I Acting Chairman Fanning agrees with the reasoning of the Admimstra- tive Law Judge and would affirm his recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had an opportunity to present evidence, the Board has found we have violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represent- atives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activities. WE WILL, upon request, bargain collectively in good faith with Retail Clerks International Association, Local 210, AFL-CIO, as the exclu- sive representative of certain of our employees at our Monroe, Louisiana, facilities with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody it in a signed contract. 216 NLRB No. 18 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights. I F. STRAUSS AND SON, INC. DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Administrative Law Judge: This proceeding was heard before me in Monroe , Louisiana, on June 12 and 13, 1974, with all parties represented. The complaint is based on a charge filed on November 29, 1973, by Retail Clerks International Association, Local 210, AFL-CIO, herein called the Union. The complaint issued on May 9, 1974, and alleges that F. Strauss and Son, Inc., herein called Respondent, engaged in certain conduct violative of Section 8(axl) and (5) of the Act. Upon the entire record, including briefs filed by each party, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Louisiana corporation engaged in warehousing, distributing, and selling food and related products with an office and warehouses located in Monroe, Louisiana. During the 12 months preceding the issuance of complaint in the course and conduct of such business Respondent purchased and received goods and materials valued in excess of $50,000 which were shipped directly to it from points located outside the State of Louisiana. I find Respondent to be engaged in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act and assertion of jurisdiction to be appropriate. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This proceeding concerns Respondent's alleged unlawful refusal to bargain with the Union as the certified representative of its employees by refusing to execute an agreement allegedly reached between. itself and the Union prior to the end of the certification year. Respondent defends its conduct by asserting that it expressed willing- ness to enter into a contract terminating at the end of the certification year, but that it lawfully declined to extend the duration of the agreement beyond that point because of a good-faith and reasonably held belief that the Union had lost its majority. A. The Appropriate Unit and the Majority On December 8, 1972, the Board certified the Union as the exclusive collective-bargaining representative of all employees in the following unit:1 F. Strauss and Son, Inc., 200 NLRB 812 (1972). 3 Ranchway, Inc, 203 NLRB 911(1973); Holly Farms Poultry Industries, 189 NLRB 663 (1971). All full-time and regular part-time employees at Employer's Monroe, Louisiana, operations, including warehouse employees, cash and carry employees, including cashier, stocker, loaders, unloaders, order pullers, truck spotters, forklift operators, packroom employees, garage employees, including mechanics and utility service employees , warehouse equipment mainte- nance and sanitation employees, truck drivers and produce truck helpers, and warehouse clerical employ- ees; but excluding all other employees, including office clerical employees, professional employees, salesmen, data processing employees, advertising and printing department employees, cash receivable clerk, watch- men and door guards, inbound and outbound checkers, and all other supervisors as defined by the Act. I find such unit to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. In accordance with established Board law, there is an irrebuttable presumption that the Union maintained its majority status for I full year following the certification on December 8, 1972.2 Accordingly, I find that at all times between December 8, 1972, and December 8, 1973, a majority of Respondent's employees in the unit described above, had designated the Union as their collective- bargaining representative in a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) and (b) of the Act. It is clear from the record that Respondent did not question the Union's continuing majority during the entire certification year. The issue before us is whether or not there existed circumstances that permitted Respondent lawfully to limit the duration of a contract otherwise acceptable to the term of the certification year. The circumstances which give rise to this alleged defense will be set forth below. B. The Background the Prestrike Bargaining and the Strike Itself On October 15, 1971, there was a Board-conducted election among employees of Respondent in the above- described unit. Thereafter, election objections and unfair labor practice charges were filed . A consolidated hearing relating to both was held, and on December 8, 1972, the Board issued its Decision finding Respondent to have engaged in certain unlawful conduct including unlawful interrogation, promises of benefit, threats of reprisal and other matters, and at the same time certifying the Union as the statutory representative of Respondent's employees.3 Bargaining between the Union and Respondent com- menced in early 1973. Some 19 bargaining sessions took place thereafter during the course of the year. On June 7, 1973, Respondent and the Union had reached accord on most issues with the exception of a significant wage matter and a union-security proposal. Union counterproposals on such issues were rejected by Respondent. It was stipulated that Respondent's complete contract offer, including a provision that the contract s F. Strauss and Son, Inc., supra. F. STRAUSS & SON, INC. should have a 3-year duration and including its proposals with regard to the disputed issues, remained in existence and on the "bargaining table" from June 7, 1973, until the opening of the November 29 bargaining session which will be considered below. On August 21, 1973, the union membership, after learning that Respondent had rejected the Union's counterproposal on the disputed issues, voted to strike. On August 22, the strike commenced. At the time of the strike, there were approximately 127 persons in the bargaining unit. According to the testimony of union representatives, approximately 115 employees initially went out on strike, and while the strike continued only 5 or 6 abandoned it and returned to work. The Union, however, offered no documentary evidence to support these figures. Respondent offered payroll records purport- ing to show that only approximately 74 employees went on strike initially. The strike did not bring about a cessation of Respon- dent's operations in Monroe. Respondent brought in supervisors from other plants initially, and then undertook to hire replacements which enabled it to continue the plant in full operation during the entire course of the strike. The replacements were not as experienced as the strikers, and while the strike was in progress additional employees were required to carry on the Monroe operation. Under circumstances to be described more fully below, the strike ended on November 29. At that time, Respondent employed a total complement of 138 employees in the bargaining unit. With the end of the strike, Respondent agreed to recall all strikers "as vacancies occurred by seniority." Respondent's records establish that after the strike ended, Respondent sent recall letters to 74 persons who presumably were regarded as holding striker status. While it appears that Respondent's payroll records may not in all instances reflect striker status with complete accuracy, generally speaking I view such records as more accurate than the undocumented estimates of the Union, and I will rely on the foregoing figures to the extent they may be needed to reach any conclusions on the issues in this proceeding. C. The November 20 Meeting, the Decertification Attempts and the November 29 Meeting No bargaining meetings between Respondent and the Union took place between the August 22 strike date and November 20. In November union representatives, appar- ently concluding that their bargaining position was deteriorating, requested another meeting with Respondent. Such meeting was held on November 20. At this time the Union first inquired if Respondent had in any manner changed its earlier proposals , and on being informed that it had not, the Union made certain new counterproposals. There was some discussion concerning the return of strikers to work in the event of a settlement. No definitive understanding on this issue was reached, although Respon- dent indicated it would be willing to take back returning strikers. Respondent agreed to consider , among other things, the Union's counterproposals. A later meeting for this purpose was scheduled for November 29. Following the November 20 meeting union representa- tives agreed among themselves that should Respondent 97 reject the Union's counterproposals the Union would then accept in toto Respondent's entire June 7 package, including those issues which the Union had theretofore resisted, call off the strike, and negotiate concerning the return of strikers. During the interim between the November 20 and 29 meetings, a development transpired at Respondent's Monroe establishment. According to the testimony of Thomas Mulhearn, president of Respondent, on Novem- ber 22 an employee named Dan Pierria came to his office and advised Mulhearn that he was "tired of this union," and wanted "to know what [he could] do to get rid of this union." Mulhearn told Pierria that he could not give him advice on such a question, and suggested that Pierria communicate with the Regional Office of the Board. On the following Monday, November 26, Pierria again visited Mulhearn's office and this time told Mulhearn that "last night [he] mailed a petition to the National Labor Relations Board in New Orleans and there were 71 names on that petition." Mulhearn conveyed this information to Frederick A. Kullman, an attorney who was Respondent's principal negotiator. Kullman sought to confirm the existence of such a petition by communicating directly with the Regional Office in New Orleans. He learned that a communication had been received from an employee of Respondent, but that no representation petition had been accepted or docketed. The Regional Office confirmed the fact that the communication contained a list of names purporting to be employees of Respondent listed under the following caption: "We the voting unit of F. Strauss and Son, Inc., no longer wish to have the Retail Clerks Union represent us, and we strongly petition the NLR Board to call for another election." The Regional Office did not show Kullman the list or give him either the names or the number of names appearing thereon. Respondent under- took to subpena the list for use during the course of this proceeding. General Counsel's petition to revoke such subpena was granted both on the grounds of relevancy and privilege. Carl E. Colvin, a union official and one of the union negotiators, learned on Sunday, November 25, that some employee was circulating a petition seeking to get other employees to repudiate the Union. According to Colvin, it was reported to him that management representatives were behind the circulation of such a petition. It does not appear that at any point prior to the November 29 bargaining meeting, Colvin or any other union representatives learned any details concerning the petition, including the number or identification of persons signing it, or the fact it had been sent to the Regional Office in New Orleans. The bargaining session of November 29 took place as scheduled. The Union was represented by Michael Christy, Carl Colvin, and Irwin Socoloff. Christy and Colvin had previously participated as negotiators for the Union. Socoloff was an attorney for the International who had been sent out from Washington to join the negotiators at this meeting. Respondent was represented by Frederick Kulhnan, its attorney, and by John Paul Jones and Bill Crowder. All had previously represented Respondent in negotiations. At the November 29 meeting, Kullman acted as spokesman for Respondent. At the opening of the 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting Kullman advised union representatives of the report he had received from Mulhearn indicating that a petition had been circulated among employees at the plant which had been signed by 71 employees indicating that they wished to withdraw from the Union. Kullman further advised the Union that this petition had been sent to the Board's Regional Office in New Orleans and that he had been advised by Regional Office representatives "that a petition had not been filed, but they had received a list of names." Kullman stated that "based on this, and the turnover ... we feel we have the right to question your certification." Kullman went on to say that "after the end of the certification year, if [the employees] don't file a petition, then [Respondent] will file it." Kullman next stated that "based on these circumstances we cannot offer you a contract except to the end of your certification year."4 Following these statements by Kullman, the union representatives left the meeting to caucus among them- selves. Upon their return, with Socoloff acting as spokes- man, the Union stated that it was now accepting Respondent's entire contract proposal precisely as it had existed since June 7 including its 3-year duration. At the same time, Socoloff announced that the Union was forthwith calling off the strike, that all strikers were unconditionally offering to return to work and that the Union was prepared to discuss the conditions of their return. Kullman replied that the Union's attempt to accept in toto the June 7 proposal was impossible since the proposals were no longer on the table in that form, having been amended by Kullman at the outset of the meeting to limit the duration of any contract entered into to the certification year. Socoloff took the position, in substance, that Respondent's attempted amendment as to duration was inappropriate and could not be made in good faith. Socoloff stated that under the circumstances he considered the Union to have accepted the valid outstanding offer, and to have entered into a binding 3-year collective- bargaining contract with Respondent. On the day following this meeting, Kullman sent a confirmatory letter to the Union. Respondent's position is set forth in this letter in the following language: I also want to take this occasion to confirm the statement which I made at the outset of our meeting on the 29th. In view of the turnover which took place during the 3-months strike period and in view of the fact that the company had been advised that certain employees were seeking to file a decertification petition and have actually submitted to the local office of the National Labor Relations Board petitions signed by substantial majority of the present work force stating that they no longer wanted to be represented by your Union, the company doubted your continuing status as bargaining representative. For this reason I told you 4 Testimony of union representatives suggests that Kullman told the Union, in substance, Respondent would not bargain with the Union at all beyond the end of the certification year. Kullman is a knowledgeable labor attorney well aware that the expiration of a certification year does not automatically extinguish the duty to bargain, even though after that time there might be a question concerning representation raised . Thus, I view it as unlikely that Kullman made the statement that the union representatives appear to attribute to him On the contrary, I am convened and find that that the company would not be willing to enter into any bargaining agreement with you for a term beyond the end of the current certification year, which expires on December 8, 1973. I also told you that if the employee petition of which we had been informed, was not actually filed, the company would, after December 8, file its own petition, in order to have the question of representation determined. Following this information, Mr. Socoloff asked for a recess. Upon his return, he stated that the strike was called off and the Union was unconditionally offering to return all strikers to work. Mr. Socoloff, likewise, stated that the Union accepted the company's last offer in toto for a 3-year contract. I advised you that there was no such contract offer on the table, it having been withdrawn at the outset of the meeting. On December 5, Union Representative Colvin advised Kullman by telegram that at the November 29 meeting, the Union had ended its strike and had accepted the Company's contract proposal in toto. The telegram went on to advise Kullman that the contract had now been ratified by the employees and that the Union was now ready to sign the contract. D. Discussion of the Issues and Conclusions This case involves an application of the Board's well- established doctrine that a union's continuing majority is conclusively presumed for a year following a Board certification.5 The doctrine itself is not challenged, but we are called on to consider if there exist circumstances which permit an employer within the certification year to limit the contract term to the duration of the certification year itself without violating its duty to bargain. The conduct which joins the issue here took place at the bargaining meeting of November 29. We need first to consider the events leading up to the meeting, and then evaluate the lawful or unlawful nature of the position Respondent took at that time. The parties had been bargaining since January 1973 following the certification. While the Board had found Respondent had engaged in pervasive unfair labor practice preceding the certification, Respondent apparently had complied with the Board's order relating thereto. The negotiations, though possibly suggesting hard bargaining, must be deemed lawful. Respondent's full contract proposal was on the bargaining table by June 7 with an accord at that time on all but a few disputed issues. In mid- August, the Union called a strike. A majority of the unit employees joined the strike. Respondent continued its operation thereafter using needed replacements. There was a dropoff in picketing activity after the first few weeks of the strike, but few of the striking employees returned to Kullman was relying on the turnover and decertification activities as giving Respondent the right to limit the duration of the contract to the certification year, and that he so represented to the Union in substantially the manner set forth above. S Ray Brooks v. N.LR.B., 348 U.S. 96 (1954); Ranchway Inc., 203 NLRB 911 (1973); Holly Farms Poultry Industries, 189 NLRB 663 (1971); Keystone Valve Corporation, 186 NLRB 64 (1970). F. STRAUSS & SON, INC work while the strike continued. Respondent regarded the replacements as less efficient than the strikers, and expressed its willingness to recall strikers when the strike ended. With the strike in the third month, and apparently not accomplishing its desired goals, the Union undertook to resume bargaining with the intention of capitulating to Respondent's proposals if it could not succeed in getting favorable modifications at the resumed negotiations. At the time of the November 20 meeting, no decertification activities had taken place. In the interim between this meeting and the one scheduled for November 29, the Union learned of a petition being circulated among plant employees aimed at repudiation of the Union. Prior to the November 29 meeting, it is not shown that the Union was fully cognizant of the scope of the so-called decertification activities, or that it learned that 71, or any other number, of employees' signatures had been obtained and sent to the Board's Regional Office. Thus, the Union came to that meeting with minimal information regarding the decertifi- cation activities but with full knowledge that, despite the length of the strike and its lack of success, the majority who had struck were still out on strike, with very few having defected and returned to work. Under the circum- stances, I am satisfied, and find, that the Union ap- proached the November 29 meeting convinced that it retained solid support among the strikers Respondent had expressed willingness to recall, that it possessed only cursory knowledge of the nature of efforts being made among the nonstrikers to repudiate the Union, and that it had the intention of bringing an end to the strike by getting the best agreement possible, accepting if necessary the full package of employer proposals. It is against this background that we come to the November 29 meeting itself. Respondent's information concerning the nature and scope of the decertification activities has been outlined above. In its brief, Respondent characterizes, and I think properly so, Kullman's proposal at the outset of this meeting as an amendment to Respondent's existing proposals in only one hmited aspect-duration. This so-called amendment was ad- vanced ostensibly because Respondent was now claiming that it had reasonable doubt as to the Union' s continuing majority because of "turnover . . . during the 3 months stake period" and because Respondent had been advised that "certain employees" constituting "a substantial majority of the present workforce" had submitted a list of names to the Board purporting to repudiate the Union as their bargaining representative. These factors are asserted to be the kind of "unusual circumstances" that would justify an employer, not to question the Union's continuing majority during the remainder of the certification year, but to limit the duration of any contract entered into to that year itself. To support its position, Respondent relies on a line of cases which hold that, despite the presumption of continu- ing majority during the entire certification year, there may be "unusual circumstances" indicating that a majority in a 6 Hede and Douche Paper Co, 104 NLRB 847 (1952); Vulcan Steel Tank Corporation, 106 NLRB, 1278 (1953), Lloyd A Fry Roofing Company, 123 NLRB 647 (1959) 99 bargaining unit have repudiated the Union, and if so, the employer may be permitted to limit the duration of any contract to which it agrees to the certification year itself and still fulfill its bargaining duty.6 Such a limitation, however, is permissible only where the so-called "unusual circumstances" are objective in nature and quantitatively sufficient to be viewed as supporting a reasonable doubt that a union's presumed majority still exists. Thus, an employer's subjective belief that a union has lost its majority will not suffice to support a limitation on duration, nor will objective information that only a few in the unit are repudiating the union.? Except for the decertification activities, I find nothing else in the record which properly may be characterized as objective evidence suggesting possible loss of the union majority. A dropoff from the early strike picketing activity does not necessarily suggest defection from the strike, particularly where, as here, there was little, if any, known defection among the strikers themselves. Turnover among nonstrikers or their replacements, absent affirmative and known expressions of their sentiment, does not necessarily suggest alienation from the Union. Resumption of the bargaining after 3 months of an unsuccessful strike may suggest some apprehension that union support is lessening, but without independent corroborative evidence it scarcely constitutes objective evidence of loss of a continuing majority. Accordingly, I find none of these circumstances, either considered jointly or severally, as sufficient to support a claim of reasonable doubt as to the Union's presumed continuing majority. This brings us to the significance to be attached to the decertification activities which came to Respondent's attention. These so-called decertification activities center on only one employee alone. Pierna told Mulhearn that he himself was repudiating the Union, and this may be characterized as objective evidence of such fact, but Pierria's representation that 70 others had signed the petition also rejecting the Union as their representative falls short of establishing this as something upon which Respondent is entitled to rely. At best, this was a hearsay representation which may or may not have been true. It may have served to nurture Respondent's subjective conviction that the Union was losing support, but it fails as objective evidence indicating that a majority of those working had in fact expressly repudiated union support. Nor does the corroborated knowledge that the list of names had been sent to the Board buttress the evidence. Even had the Regional Office told Respondent that there were 71 names on the petition it would have been meaningless. Respondent was told that the so-called petition was being treated as nothing more than a communication and that it was not being docketed as a decertification petition. Thus, Respondent was made aware that the validity of the listed names had not been, and was not being, officially evaluated by the Board. Nevertheless, Respondent elected to rely on Pierria's representations as to the number of defections together with what it had learned from the Board and such obviously subjective 7 Insulating Fabricators, Inc, 144 NLRB 1325 ( 1963); Grand Rent-a-Car, d/b/a Avis Rent -A-Car, 169 NLRB 731 (1968); Holmes Tuttle Broadway Ford Inc, 186 NLRB 73 (1970), Henry Heide, Inc, 107 NLRB 1160 (1954) 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerations as diminished strike activity and turnover as sufficient evidence to support its alleged doubt of the Union's continuing majority. I view the foregoing as insufficient grounds for support of Respondent's contention. Were such insubstantial considerations to be accepted as "unusual circumstances" we would do violence both to the basic certification year concept, and to its qualification in situations where there may be truly "unusual circumstances." The purpose behind the certification year concept is to further the collective-bargaining process. It constitutes a recognition of the fact that it takes time to negotiate a collective- bargaining contract, and that such contracts are the ultimate goal of an employee representative. Unfettered freedom by unit employees to change or abandon a chosen representative at will and for an employer to act on even objective evidence that it had done so could render it impossible ever to negotiate an agreement. On the other hand, the limited duration concept seeks to recognize that circumstances may arise which could result in forcing an unwanted representative on the employees for an extended period of time. Each concept undertakes to place bounda- ries on the rights. of both employer and employees calculated to achieve its respective objective. The conclu- sive presumption of continuing majority for an entire certification year, however, is not to be abandoned lightly. The duration concept will come into play only in the presence of clearly defined and substantial evidence signifying the likelihood that the unit employees may not wish to continue with their chosen representative beyond the term of the certification year. The duration limitation exists not so much to test the employer's good faith approach to his bargaining duty as to protect employees against being required to keep an unwanted representative for an unduly long period. The "unusual circumstances" which will suffice to support the duration Imitation may be many and varied but at a minimum they must include more than evidence that one or even a number of employees seek to abandon the Union. On the one hand Respondent here came to the November 29 meeting knowing that a majority of the employees in the unit at the time of the strike were still out on strike, and presumably still supporting the Union. On the other hand it knew for sure at this time that only one of its employees had repudiated the Union, and was engaging in activities calculated to, and which it believed to, have caused others to follow suit. However, other' than the representations of this employee alone, it had no objective evidence that in fact he had been joined by a majority of the working employees, or indeed by any one of them. This does not suffice to meet the "unusual circumstances" test, and thus does not provide Respondent with lawful justification for amending its earlier proposal to limit the duration of the contract to the certification year, and I so find. According- ly, I find that under the circumstances set forth above, Respondent breached its statutory duty to bargain by seeking to limit the contract term to the certification year, and thereby Respondent engaged in conduct violative of Section 8(aX5) and (1) of the Act. There remains the question of whether or not the Union's acceptance of the June 7 proposals created a binding contract. This must be answered in the affirmative. As set forth above, Respondent's June 7 proposals were still on the table when the November 29 meeting opened. Respondent made no attempt to amend any proposal but the duration clause. Presumably had the Union accepted at this point a contract effective for the remainder of the certification year would have came into being. I have found above that this attempt was a breach of Respon- dent's statutory bargaining duty, and was in effect a nullity. The Union, thereupon, undertook to accept in toto those proposals to which Respondent had been prepared to bind itself since June 7. It would be a manifest injustice if Respondent were now permitted to avail itself of a breach of its own statutory bargaining duty, and to say that no 3- year contract, or any contract at all, exists. Accordingly, I find that by its acceptance on November 29 of Respon- dent's June 7 contract proposals, a 3-year contract embodying such proposals came into being, and I shall direct that Respondent execute a contract of such nature. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. F. Strauss and Son, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks International Association, Local 210, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the employer in the bargaining unit, more particularly described above, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On November 29, 1973, and at all pertinent times thereafter, the Union was the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent has engaged in and is engaging in unfair labor practices violative of Section 8(aX5) and (1) of the Act by insisting that any contract executed with the Union have a duration limited to the certification year, and by refusing on and after November 29, 1973, to execute a collective-bargaining agreement with the Union embody- ing all of its proposals which had been on the bargaining table since June 7, 1973, and which had not been effectively amended thereafter with regard to duration. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. • The Remedy Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the purposes of the Act. It will be recommended that Respondent bargain with the Union as the certified representative of its employees in the unit heretofore found appropriate for the purposes of collective bargaining by executing a collective-bargaining F. STRAUSS & SON, INC. 101 agreement embodying the provisions contained in the proposals submitted to the Union on June 7, 1973, and which remained thereafter on the bargaining table until accepted by the Union on November 29, 1973. Upon the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, F. Strauss and Son, Inc., Monroe, Louisia- na, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively in good faith with Retail Clerks International Association, Local 210, AFL-CIO, as the exclusive representative of its employees in the unit herein found appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent such rights may be affected by an agreement 8 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. requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Execute a collective-bargaining agreement with the Union embodying all the proposals on the bargaining table since June 7, 1973. (b) Post at its Monroe, Louisiana, facilities copies of the attached notice marked "Appendix." 9 Copies of said notice on forms provided by the Regional Director of Region 15, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and maintained by it 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. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this decision what steps Respondent has taken to comply herewith. 9 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."