Abbey Medical/Abbey Rents, Inc.

ABBEY MEDICAL./ABBEY RENTS, INC. Abbey Medical/Abbey Rents, Inc. and Freight Checkers, Clerical Employees & Helpers, Local No. 856, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Cases 20-CA- 15942 and 20-CA-16011 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 19, 1982, Administrative Law Judge Burton Litvack issued the attached Decision in this proceeding. Thereafter. Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions1 of the Administrative Law Judge and to adopt his recommended Order. In adopting the Administrative Law Judge's con- clusion that Respondent violated Section 8(a)(5) by withdrawing recognition of the Union, we note that it is well settled that, during the term of a col- lective-bargaining agreement, an employer cannot withdraw recognition of a union as the collective- bargaining representative of its employees so long as a valid election petition cannot be timely filed. Hexton Furniture Company, 111 NLRB 342, 344 (1955); Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc., and Shamrock Milk Transport Co., 119 NLRB 998, 1002 (1957); Quad C Corporation and Associated General Contractors of California, 246 NLRB 463, 467 (1979). Under our contract-bar rules, during the term of a 3-year or less collective- bargaining agreement, an election petition is timely filed only if it is submitted during the 30-day "open period" running from the 90th day to the 60th day prior to the existing contract's termination date, absent unusual circumstances. Leonard Wholesale Meats, Inc., 136 NLRB 1000, 1001 (1962); General In adopting the Administrative Law Judge's conclusion that Re- spondent violated Sec 8(aXS) of the Act by unilaterally ceasing to make contractually mandated fringe benefit contributions, .:e note with refer- ence to his rejection of Respondent's acquiescence defense that "[uInder Section 8(d) of the Act, no party to a collective-bargaining agreement can be compelled to discuss or agree to a midternl modificationl of a col- lective-bargaining agreement, and, accordingly, a proposed modification can be implemented only if the other party's consent is first obtained." Los Angeles Marine Hardware Co., a Division of Mission Marine 4swriates, Inc.: and California Marine Hardware Co., a Division of Mision Marinm AV- sociate.. Inc., 235 NLRB 720, 735 (1978). 264 NLRB No. 129 Cable Corporation, 139 NLRB 1123, 1125 (1962). After expiration of the collective-bargaining agree- ment, an election petition can be timely filed, and the employer can, under certain circumstances, withdraw recognition of the union as the collec- tive-bargaining representative for the purpose of negotiating a new, successor contract. Emerson Manufacturing Company. Inc., 200 NLRB 148, 150 (1972). A union which seeks to negotiate a successor contract normally will, prior to the expiration of the present contract, inform the employer that it desires negotiations on a new contract. In some in- stances, also at a time prior to the expiration of the contract, the employer will-without challenging the right of the union to administer the present contract until its expiration-question the right of the union to negotiate a successor contract and will withdraw recognition of the union as to items other than the present contract. See, generally, P. A. Incorporated, 248 NLRB 491 (1980). That is es- sentially what occurred in this case, where, 66 days prior to the expiration date of the existing contract, Respondent informed the Union that it had re- ceived what it considered to be objective evidence that a majority of the employees no longer wished to be represented by the Union and on that basis withdrew recognition of the Union. As emphasized by its letter dated 16 days after that withdrawal, Respondent never questioned its obligation to comply with the existing contract and specifically recognized the Union's right to service the con- tract for the remainder of the contractual term. Re- spondent's withdrawal of recognition was as to- and only as to-negotiating a successor contract to the existing agreement. Such an "anticipatory withdrawal of recogni- tion" in relation to a future contract is lawful if and only if the employer can demonstrate that, on the date of withdrawal and in a context free of unfair labor practices, the union in fact had lost its major- ity status, or respondent's withdrawal was predicat- ed on a reasonable doubt based on objective con- siderations of the union's majority status. Terrell Machine Company, 173 NLRB 1480, 1480()-81 (1969); James W. Whitfield d/bha Cutten Supermar- ket, 220 NLRB 507, 508 (1975). We agree with the Administrative Law Judge's conclusion here that Respondent's assertion of such a reasonable doubt concerning the Union's representative status is fa- tally tainted by its commission of the 8(a)(5) unfair labor practice of unilaterally ceasing the contrac- tually mandated fringe-benefit contributions for the vast majority of the unit employees. Guerdon In- dustries, Inc., Armor Mobile Homes Division, 218 NLRB 658, 660-661 (1975). Chicago Magnesium 969 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Castings Company, 256 NLRB 668, 674-675 (1981). We therefore find that Respondent's withdrawal of recognition violated Section 8(a)(5). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Abbey Medical/Abbey Rents, Inc., Hawthorne, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge: This matter was heard by me in San Francisco, California, on September 3, 1981. On February 26, 1981, an order con- solidating cases and consolidated complaint and notice of hearing was issued by the Acting Regional Director for Region 20 of the National Labor Relations Board, herein called the Board. The consolidated complaint was based on an unfair labor practice charge filed on January 12, 1981, by Freight Checkers, Clerical Employees & Help- ers, Local No. 856, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Charging Party, in Case 20-CA-15942 and an original and first amended unfair labor practice charge filed on February 2 and 26, 1981, respectively, by the Charging Party in Case 20-CA-16011 and alleges that Abbey Medical/Abbey Rents, Inc., herein called Respondent, engaged in acts and conduct violative of Section 8(a)(5) and (1) of the National Labor Relations Act, herein called the Act.' Respondent filed an answer, denying the commission of any unfair labor practices. All parties have been afforded a full opportunity to introduce rele- vant evidence, to examine and cross-examine witnesses, to argue orally, and to file post-hearing briefs which have been carefully examined. 2 Based upon the entire record, the post-hearing briefs, and upon my observation of the demeanor of the witnesses, I make the following: I The unfair labor practice charge in Case 20-CA-15942 alleges that Respondent violated Sec. 8(a)(5) and (1) of the Act by withdrawing rec- ognition from and failing to bargain with the Charging Party The origi- nal and first amended unfair labor practice charge in Case 20-CA-16011 alleges that Respondent violated Sec. 8(a)(5) and (1) of the Act by, among other acts and conduct, refusing to make health and welfare and pension contributions for current employees. Over the objection of counsel for Respondent, counsel for the General Counsel was permitted to amend the consolidated complaint at the hear- ing. Counsel for Respondent renewed his objections in his post-hearing brief and such will be discussed infra. 2 No post-hearing brief was filed by counsel for the Charging Party. FINDINGS OF FACT I. JURISDICTION Respondent, a State of Delaware corporation, with its office and principal place of business located in Haw- thorne, California, is engaged in the wholesale and retail sale and rental of medical and party equipment. In the course and conduct of said business operations during the l-year period immediately preceding the issuance of the consolidated complaint, Respondent derived gross revenues in excess of $500,000 and sold products, goods, and materials valued in excess of $50,000 directly to sources located outside the State of California. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. I ABOR ORCANIZATION Respondent admits, and I find, that the Charging Party is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ISSUES 1. Has Respondent engaged in acts and conduct viola- tive of Section 8(a)(5) and (1) of the Act since on or about July 15, 1980, by unilaterally, without affording the Charging Party an opportunity to bargain, ceasing to make payments on behalf of certain of its employees to several contractually established fringe benefit trust funds? 2. Did Respondent on or about November 26, 1980, withdraw recognition from the Charging Party as the bargaining representative of certain of its employees in violation of Section 8(a)(5) and (1) of the Act? 3. Did Respondent on or about January 23, 1981, refuse to provide information to the Charging Party in violation of Section 8(a)(5) and (1) of the Act? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The record establishes that Respondent maintains five retail outlets in the San Francisco Bay area, located in the cities of Oakland, San Francisco, Hayward, Santa Clara, and Redwood City, at which it engages in the rental and sale of medical and party equipment. At these facilities Respondent employs truckdrivers who, until mid-1981, dependent upon location, were represented by three different locals of the Teamsters Union and clerical employees, classified as group leaders and rental sales consultants, who are involved in the rental process and perform necessary paperwork. At all times material herein, George Zissis was the group vice president in charge of these five stores and John Haase was Respond- ent's vice president, employee relations and training. Although silent as to the circumstances, the record further establishes that Respondent recognized the Charging Party in 1972 as the exclusive representative for purposes of collective bargaining of the clerical em- ployees at its Oakland store; that the parties thereafter 970 ABBEY MEDICAL/ABBEY RENTS, INC. negotiated and entered into a collective-bargaining agree- ment for said employees; that by 1974 the coverage of this agreement was extended to include the clerical em- ployees at Respondent's four other San Francisco Bay area stores; and that, subsequent to their initial contract, the parties entered into successive agreements, with the most recent effective from February 1, 1978, until Janu- ary 31, 1981.3 Among the provisions of this latter collec- tive-bargaining agreement, article I requires Respondent to provide, in writing, to the Charging Party within 7 days of the hiring of new employees the name, address, and social security number of each new person hired, the date of hire, and the individual's rate of pay; article 2 permits Respondent to hire "temporary" employees who work no longer than a week; and articles 24 through 27, respectively, establish health and welfare, dental, pre- scription drug, and pension plans into which Respondent is required to contribute specified amounts on behalf of each bargaining unit employee. In late August 1979 new contract negotiations between Respondent and the three Teamsters Union locals, which represented the truckdrivers at the five northern Califor- nia retail outlets, reached an impasse. Upon the expira- tion of the three existing contracts with these unions, said employees commenced a strike against Respondent, and, by September 1, picketing was ongoing at each of Respondent's five stores. John McLaughlin, the record- ing secretary for Respondent and the individual responsi- ble for processing employee grievance and bargaining with Respondent, testified that while said negotiations did not affect the bargaining unit employees who were represented by the Charging Party, the great majority 4 of the clerical employees chose to honor the picketing and, consequently, not work for Respondent during the duration of the truckdrivers' strike.5 In order to continue operating, Respondent commenced hiring replacements for the striking clerical employees; by the end of 1979, three individuals had been hired and one person was transferred to the San Francisco area from an out-of- state location; and by June 20, 1980, seven more clerical replacement employees were hired. As to what was said to these individuals regarding the permanency of their employment, according to John Haase, Respondent would "tell them about our situation, and tell them if in fact the other people wanted to come back, they could. They could cross the picketline or, you know, there was 3 The bargaining unit, as set forth in the most recent contract, is as follows: "all office and clerical employees employed by Respondent at its Oakland. San Francisco, Hayward, Santa Clara, and San Mateo stores; excluding guards, watchmen, professional, confidential, and managerial employees, and supervisors as defined by the Act." (The record estab- lishes that the San Mateo facility was moved to Redwood City at some point prior to the hearing.) 4 The record establishes that there were 17 or 18 bargaining unit em- ployees as of September 1, 1979. Resp. Exh. 4 contains the name of one individual, Nancy Chapman, who was on sick leave during the two pay- roll periods immediately preceding September I and is listed as having resigned during the week of September 1. A resolution of her employ- ment status as of the above date is not necessary herein, and I have not done so. I McLaughlin testified that the strike officially ended in March 1981 at which time the Teamsters Union withdrew its sanction for the truck- drivers' strike. He further testified that the picketing at each retail outlet also ended at approximately this time. a possibility that this was a temporary position. " 6 In ad- dition to these 11 strike replacements, 4 bargaining unit employees-Brenda Nagy, Rose Cardenas, Lydia Bush, and Loretta Suzuki-ignored the picketing at their re- spective store locations and continued to work during the strike. 7 There can be no doubt that as late as June 20, 1980, Respondent considered the replacement employees to be "temporary." On that date, Haase mailed the following letter to the Charging Party: Gentlemen: Our Company has now been struck by Teamsters Unions, Local Nos. 85, 70 and 287, for a substantial period of time. Many of the employees covered by our collective bargaining agreement with your union (856) have exercised their contractual right and declined to cross the picket line. When this first occurred, we contacted your union to ask for em- ployee referrals. We were informed that, because of the picketing, your union would not refer any em- ployees to work for our Company during the strike. In such circumstances, we have been operating with temporary employee strike replacements for our office work. We do not believe that our collective bargaining agreement with your union covers such strike replacements, and we want you to be fully in- formed that such temporary employees have been uti- lized by the Company. If there is anything you would like to discuss concerning such temporary employee strike replacements, please contact us and we will be glad to answer any questions you may have. 8 6 Haase candidly admitted that Respondent never held out the possibil- ity of a permanent position for these people "because we didn't know" 7 A major contention of Respondent is that prior to June 20, 1980, the Charging Party was, or should have been, aware not only that Respond- ent was utilizing strike replacements to perform bargaining unit work but also that no fringe benefit payments were being made on behalf of said individuals to the contractual funds. In support counsel points to McLaughlin's testimony that he was aware that Respondent continued to operate during the strike; that business agents, on occasion, spoke to the nonstrikers; that the Charging Party closely monitored the strike; that he was often at the scene of the picketing; and that he regularly received reports from the benefits funds' administrator as to Respondent's contri- butions for covered employees. From the above facts. Respondent argues, the inference of knowledge is warranted. However, McLaughlin denied specific knowledge of Respondent's strike activities, testifying that he assumed Respondent continued operating with managerial employees and supervisors performing clerical work. Contrary to Respondent's con- jecture, there exists not a scintilla of direct evidence to controvert McLaughlin in this regard. Further, I note that, contrary to art. I of the collective-bargaining agreement, Respondent failed to notify the Charg- ing Party of the names of the strike replacements or to require that they join the Charging Party. The foregoing is not to suggest that the Charging Party was unaware that not all bargaining unit employees were honoring the truckdrivers' strike. In this regard, McLaughlin admitted that business agents did speak to nonstrikers and that he received reports from the administrator of the fringe benefits funds that payments on behalf of said employees were made by Respondent during the strike. 8 There is no dispute that this letter was received by the Charging Party. Also. I credit Haase that, based upon the duration of the strike and what Respondent was telling the replacements as to their status, he con- sidered the replacements to be temporary at that time. 971 DECISIONS OF NATIONAL LABOR RELATIONS BOARD More specifically as to these individuals, Haase testified that they performed the normal work of the strikers and that most worked a regular 40-hour week. As to the ap- plication of the existing collective-bargaining agreement to them, Haase further testified that all terms, except the union-security clause provisions of article I and the fringe benefit payments set forth in articles 24 through 27, were enforced. With regard to the required payments to the fringe benefit funds, Haase admitted that no such contributions have been made on behalf of any of the strike replacements but that, instead, Respondent has sub- stituted its own insurance plans.9 He offered no explana- tion for this change. The Charging Party failed to respond to the above letter in any form, failing to question Respondent on the utilization of "temporary" replacements or its failure to apply all terms of the collective-bargaining agreement to them. Between June 20 and November 1 Respondent hired six additional replacements to perform bargaining unit work, presumably on the same basis and under the same terms as the others hired subsequent to September 1, 1979. Accordingly, by November 19, 1980, there were 22 (18 replacements and 4 nonstrikers)'t individuals em- ployed by Respondent, performing bargaining unit work." On November 20, according to George Zissis, Respondent's vice president in charge of the five San Francisco Bay area outlets, he received at his San Fran- cisco office three documents (Resp. Exhs. 1, 2, and 3) in the form of employee petitions. Exhibits I and 3 arrived by mail, and Exhibit 2 was personally handed to Zissis by strike replacement employee Narissa Dotson. Each document was in an envelope and bears the identical heading ("WE, THE CL.ERICAL EMPLOYEES OF ABBEY MEDICAL/ABBEY RENTS DO HEREBY WISH TO DISCONTINUE ALL AFFILIATIONS WITH UNION LOCAL NO. 856"), is dated November 19, 1980, and has signatures beneath the heading. Zissis testified that the names were those of Respondent's cleri- cal employees and that he recognized "most" of the sig- natures inasmuch as "I see their work frequently." 2 He 9 As previously mentioned, Respondent honored the contract as far as payments on behalf of the nonstriking employees: Cardenas, Suzuki, Bush, and Nagy. 'O An individual named Helen Price appears on Respondent's payroll records for the week of November 19; however, there is no record evi- dence as to her hire date. " Listed on Respondent's payroll records for the week of November 19 are 10 individuals employed by a company called R & K Medical Supply. The record reveals that this employer was purchased by Re- spondent in September 1980 and that, while the latter considered these individuals to be its employees, they worked at the separate R & K Medi- cal Supply location, supervised by the latter's supervisory personnel. There is no evidence regarding any community of interests between these 10 people and the strikers and strike replacement employees No party contends that the former R & K Medical Supply employees should be included in the bargaining unit, and I shall not do so. Finally, I note that I striker, Celeste Moi, is included among the 10 R & K Medical Supply employees. 12 On Resp. Exh. I, which contains 23 signatures, Zissis testified that he recognized 13 of them. Exhs. 2 and 3 contain two signatures each, and Zissis recognized one signature on each document. With regard to Resp. Exh. 1, I note that it contains nine signatures which correspond to the names of nine R & K Medical Supply employees. Finally, the total number of signatures on the 3 documents is 27, including those of the 4 nonstriking employees. further testified that, upon examining the documents, he telephoned John Haase, informed him of the receipt of the documents, and requested instructions as to what he should do. Haase replied that Zissis should mail the peti- tions to him. 13 Meanwhile, according to John McLaughlin, in mid- November 1980 pursuant to its standard procedures, the Charging Party took the initial steps for obtaining a suc- cessor collective-bargaining agreement with Respondent. Thus, on November 19, the Charging Party's secretary, Rudy Tham, mailed the following letter to Respondent's Hawthorne, California, office: Gentlemen: Notice is hereby given to modify and amend the existing Agreement. This is in accordance with Page I of the present Agreement. We therefore request a meeting at your earliest convenience in order to commence negotiations on the new Agreement. Please notify us as to the time and place of such a meeting. Although the record establishes that Respondent re- ceived this letter at its Hawthorne office on November 21, Haase testified, without contradiction, that he did not personally see it for, at least, 5 days. During this 5-day period and upon receiving in the mail from Zissis Re- spondent's Exhibits 1, 2, and 3, he and Respondent's per- sonnel manager examined the personnel records to ensure that each signature was that of a current employ- ee-"The result was that these were our employees." Testifying that he recognized "a few signatures," Haase admitted that he made no effort to verify them as he had no reason to doubt their authenticity. In any event, ap- parently without knowledge of the Charging Party's No- vember 19 letter at the time, Haase mailed the following letter, dated November 26, 1980, to the Charging Party as a result of receipt of the three employee petitions: To the Union: I am writing to advise you that Abbey Medi- cal/Abbey Rents, Inc. has received objective evi- dence that a majority of the office and clerical em- ployees at each facility in San Francisco, Redwood City, Santa Clara, Oakland, and Hayward, Califor- nia, do not wish to be represented by Local 856. 1 have been advised by our attorneys that it would be unlawful for the Company to continue to recognize your Union under these circumstances. Accordingly, by this letter Abbey Medical/- Abbey Rents, Inc. withdraws recognition of Team- sters Local 856 as the representative of its office ia According to the testimony of Haase, Zissis called and said that he had received some letters from the employees. Thereupon the latter read the language of the letter headings to Haase and said that there was a list of signatures beneath each such heading. Haase asked if he recognized any of the names, and Zissis answered that he did. Thereupon, Haase asked him to mail the lists to the Hawthorne office. 972 ABBEY MEDICAL/ABBEY RENTS, INC. and clerical employees at all of the above men- tioned facilities. '4 Two weeks later and having, at last, seen the Charging Party's request for negotiations, Haase sent the following letter, dated December 12, 1980, to Rudy Tham: Dear Mr. Tham: This is to acknowledge receipt of your letter of November 19, 1980. As you may know, by letter dated November 26, 1980, the Company has with- drawn recognition of your Union as the collective- bargaining representative of any of its employees. Accordingly, I must decline your request to meet to commence negotiations for a new collective bar- gaining agreement. Please be assured that the Company will continue to comply with the existing collective bargaining agreement for the remainder of its term, and will further recognize the right of your Union to service the contract for the remainder of its term. Howev- er, based upon the wishes of our employees, we will not be negotiating a successor agreement. Five weeks later, shortly before the existing contract was due to expire by its terms, the Charging Party mailed the following letter, dated January 19, 1981, to John Haase: Dear Mr. Haase: On behalf of the attached list of Abbey Rents employees, we are making an unconditional offer to return to work for Abbey Rents immediately. Please respond to this offer upon receipt of this letter. In addition to the above, we are asking for a list of names of all clerical employees employed by Abbey Rents at the company offices located in San Francisco, Redwood City, Santa Clara, Hayward and Oakland. This list should include the following additional information: 1. Are they members in good standing of the Union in accordance with Article 1 of the present labor agreement? 2. Are they covered by Article 24 (Health and Welfare); Article 25 (Dental Plan); Article 26 (Prescription Drug Plan); Article 26 (Pension Plan)? Have you made contributions on all em- " Haase testified that, while he considered the strike replacement em- ployees to be temporary workers as of June 20, 1980, by the following November, they had become permanent employees, Testifying as to this change in status, Haase averred, "You know, after you have a strike going on for 18 months, somewhere along the line these temporary people-you kind of figure, hey, these people are here a long time; what's the real status of it? . . . I would say that probably after the-well . a year's time, okay from the time of the strike. . . After that year was up, okay, we somewhat figured that the people who were there were somewhat there on a permanent basis." As to who made the decision to consider the strike replacements to be permanent rather than temporary employees, Haase said, "I think that was probably made between myself and George Zissis." The latter did not corroborate Haase on this point. Finally, Haase admitted that nothing was said to the strike replacements with regard to their change in status. ployees as called for in these Articles of our present contract? 3. Give the names, home addresses and social security numbers of employees; dates of employ- ment and hourly rates of pay (from date of hire to present time, showing dates of any increases). This is in accordance with Article I which infor- mation should have been supplied within seven (7) days of one's date of hire. In accordance with Article 11, ADJUSTMENT OF GRIEVANCES, we are willing to waive any intermediate steps and proceed to arbitration should you wish to do so immediately. Please respond to this proposal upon receipt of this letter. Should you have any questions regarding this letter, please contact our attorney, Duane Beeson, Esq. at (415) 936-4060. This letter, General Counsel's Exhibit 6, was offered into evidence and received as a two-page document, the second page of which contained the following names of strikers: C. E. Bermudez, K. E. Celle, A. C. Engleman, S. Lee, G. Lena, D. E. Longman, B. J. Menet, C. O. Moi, B. B. Ocampo, J. E. Rabe, and R. A. Smith. While admitting receipt of the first page, t Haase denied that a second page was attached, stating that he searched for but could not find any list of names. Accordingly, in re- sponse to the information, which had been requested by the Charging Party in the aforementioned letter and re- garding the list of strikers, Haase mailed the following letter, dated January 23, 1981, to Rudy Tham: Dear Mr. Tham: I am in receipt of your letter of January 19, 1981. In your letter, you refer to an enclosed list of em- ployees who supposedly are interested in returning to work. However, you did not enclose any such list. If there are any employees who are interested in returning to work, please let me know their names, the basis on which they are interested in re- turning and the approximate date on which they will be available. The Company will then be able to respond appropriately. With respect to the other matters raised in your letter, I refer you to my letter to your Union dated June 10, 1980, which I believe is responsive to your inquiry. However, if there is any further informa- tion which I can provide to you, please advise me in writing. 6 The Charging Party's secretary, Barbara Corenevsky, testified that McLaughlin instructed her to mail the list of strikers, for whom the Charging Party had stated an unconditional offer to return to work, to Respondent's office and that she did so by ordinary mail. Haase denied receiving such a list. Other than what is contained in Re- is Counsel for the General Counsel's witnesses, McLaughlin and Bar- bara Corenevsky, a secretary for the Charging Party, could not state that a second page was, in fact, attached to the January 19 letter. 16 Haase testified that he mistakenly referred to Respondent's June 20, 1980, letter as the June 10, 1980, letter 973 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's above letter, the Charging Party has received none of the information that it requested on January 19. B. Analysis The consolidated complaint alleges that Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act by, since July 15, 1980, failing to make fringe benefit payments on behalf of bargaining unit employees to contractual benefit funds; by withdrawing recognition from the Charging Party; and by failing to provide nec- essary and relevant information to the latter. In support, counsel for the General Counsel argues that the strike re- placements who have been hired by Respondent are per- manent employees and, therefore, in the bargaining unit. Accordingly, notwithstanding that a majority of employ- ees in the bargaining unit may have signed the petitions which Zissis receives on November 20, 1980, such may not be used as objective considerations giving rise to a good-faith doubt of the Charging Party's majority status herein as they are tainted by existing, unremedied unfair labor practices-the continuing failure by Respondent to remit required fringe benefit payments. Contrary to this, counsel for Respondent argues that there can be no find- ing that Respondent violated Section 8(a)(5) and (1) by failing to make fringe benefits payments as such a finding is time-barred by Section 10(b) of the Act and as the Charging Party has never demanded that Respondent bargain concerning the matter. As to the withdrawal of recognition from the Charging Party, counsel asserts that such was privileged by the aforementioned employee pe- titions which caused Respondent to objectively and rea- sonably believe that a majority of its clerical employees no longer wished to be represented by the Charging Party. Before examining the allegations of the consolidated complaint more closely, two matters warrant considera- tion-the status of the striking clerical employees and the status of the strike replacement employees. With regard to the former, the record is clear that when they concer- tedly ceased working for Respondent on or about Sep- tember 1, 1979, in support of the striking truckdriver em- ployees, Respondent's clerical employees engaged in a sympathy strike. It is undisputed, and I find, that such conduct constitutes protected concerted activities, privi- leged by Section 7 of the Act. N.L.R.B. v. Southern Cali- fornia Edison Company, 646 F.2d 1352, 1363 (9th Cir. 1981); Delaware Coca-Cola Bottling Company v. General Teamsters Local Union 326, 624 F.2d 1182 (3d Cir. 1980). As to their rights under the Act as sympathy strikers, the Board holds that such individuals assume the status of the strikers with whom they sympathize. Levitz Furniture Company of the Eastern Region, Inc., 248 NLRB 15 (1980); American Telephone & Telegraph Co., 231 NLRB 556, 562 (1977). Accordingly, as the truckdrivers herein were apparently economic strikers, Respondent's clerical employees who struck in support of their fellow employ- ees would also possess the status of economic strikers. Concerning the status of Respondent's strike replace- ments, I note, at the outset, that in their post-hearing briefs, both counsel for the General Counsel and counsel for Respondent take the identical position that said indi- viduals should be considered to be, at all times, perma- nent replacements and, thus, bargaining unit employ- ees. 7 As the parties agree on their status, I also shall consider the replacements, no matter when hired, as not temporary replacements. In this regard, "the Board has held that replacements for economic strikers are pre- sumed to be permanent employees .... " Kable Printing Company, 238 NLRB 1092, 1096 (1976); Pacific Tile and Porcelain Company, 137 NLRB 1358, 1360 (1962).18 Moreover, it appears that the strike replacements worked the same hours, performed the same duties, and enjoyed similar employee benefits as the striking clerical employ- ees. Pandick Press Midwest, Inc., 251 NLRB 473 (1980); Mon Valley United Health Services, Inc., 238 NLRB 916, 926 (1978). Further, and of significance to their status, the testimony of John Haase establishes that the strike re- placements had no definite or contemplated date of ter- mination, with such contingent upon the actions of the strikers. Accordingly, as their employment was of an in- definite duration, the strike replacements may be consid- ered as being bargaining unit employees. Associated Gro- cers, 253 NLRB 31, 32 (1980); Good Friend Western Corp. d/b/a Wrangler Wranch, 232 NLRB 527, 535 (1977); Emco Steel, Inc., 227 NLRB 989 (1977).' 9 Specifically regarding the allegations of the consoli- dated complaint, the General Counsel alleges that Re- sponaent's failure to make fringe benefit contributions on behalf of these replacement employees since July 15, 1980, constitutes a violation of Section 8(a)(1) and (5) of the Act. The record establishes that, at the time Re- spondent's clerical employees commenced their sympa- thy strike, the existing collective-bargaining agreement between the parties was to remain effective for 17 more months and that, by the contract's terms, Respondent was to continue remitting fringe benefit contributions on behalf of its clerical employees. While, in fact, continu- ing to do so for the four nonstrikers, the record further establishes, and John Haase admitted, that since Septem- ber 1979, upon the hiring of each of the strike replace- ments, Respondent failed to make any of the required fringe benefit payments to the contractual trust funds for any of said individuals. There is no question that Re- spondent instituted this policy and engaged in said con- duct without first bargaining with the Charging Party. "It is well settled that an employer is obligated to main- tain the status quo during . . . the term of an existing collective-bargaining agreement." Farmingdale Iron Works, Inc., 249 NLRB 98, 99, fn. 5 (1980). As there is no question that the strike replacements were, at all times, bargaining unit employees, such unilateral non- compliance with contractually established terms and con- ditions of employment constitutes a violation of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Katz, 369 U.S. 736 1" By taking such a position, counsel for Respondent ignored the testi- mony of John Haase that, at least, through September 1980, he perceived the replacements as being temporary in status. I am not concerned with this apparent inconsistency, noting that Haase did not claim to be knowl- edgeable as to labor law. Is As previously stated, as sympathy strikers, the striking clerical em- ployees have the status of economic strikers. 9 I need not decide whether the replacements should be considered to be permanent vis-a-vis the right of the striking clencal employees to im- mediate reinstatement upon unconditional offers to return to work. 974 ABBEY MEDICAL/ABBEY RENTS, INC. (1962); Hayden Electric, Inc., 256 NLRB 601 (1981); U.S. Utilities Corporation, 254 NLRB 480 (1981); Farmingdale Iron Works, supra. Looking back 6 months from the serv- ice of the unfair labor practice charge in Case 20-CA- 5942, the General Counsel alleges that Respondent has so violated the Act since on or about July 15, 1980. Respondent proffers two defenses to the allegation that the failure to make fringe benefit payments on behalf of the strike replacements was unlawful. The first, which was rejected by me at the hearing when counsel for the General Counsel was permitted to amend the consoli- dated complaint and allege the aforementioned unilateral change as occurring since on or about July 15, 1980, is that a finding of any unfair labor practice from such a date is time-barred by Section 10(b) of the Act.20 At the outset, this provision of the Act acts as a statute of limi- tations period for the finding of unfair labor practices. McKesson Drug Company, 257 NLRB 468 (1980). Fur- ther, if a charge was filed and served within 6 months of the violations alleged in the charge, a complaint, al- though issued after the 6 months, may allege violations not specifically alleged in the charge if such are closely related to the specific allegations set forth in the charge and if such occurred within 6 months of the filing of the charge. Gocat, Inc., 257 NLRB 270 (1981). Herein there is no doubt that the unfair labor practice charge in Case 20-CA-15942 was filed within 6 months of the allega- tions therein and Respondent does not assert that the amendment to the consolidated complaint is not closely related to said allegations. What Respondent does con- tend, citing Local Lodge No. 1424, International Associ- ation of Machinists, AFL-CIO [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411 (1960), is that the events giving rise to the allegation in the consolidated complaint occurred prior to June 15, 1980, or outside the 10(b) period. Initially, it is clear that the 10(b) period does not com- mence until the labor organization has knowledge of the facts of the unfair labor practice. K & E Bus Lines, Inc., 255 NLRB 1022 (1981); Plumbers and Steamfitters Local No. 40, United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Mechanical Contractors Associ- ation of Washington), 242 NLRB 1157, 1161 (1979). In this regard, Respondent notes that its admitted unilateral change actually began with its failure to make fringe benefit contributions for the first strike replacement in September 1979; that the facts conclusively establish that the Charging Party was aware from the inception of the strike that Respondent was utilizing replacement workers and was not remitting benefits payments on their behalf; and that the Charging Party had actual notice of said conduct by the letter dated June 20, 1980. Accordingly, it is argued that as this latter event, at least, is beyond 20 The pertinent portion of Sec. 10(b) of the Act is as follows: ... Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person ag- grieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge ... the outer date of the 10(b) limitations period (July 15, 1980), there can be no unfair labor practice finding based upon said conduct. Without regard to the factual validity of Respondent's arguments, under current Board law they are not legally tenable. Thus, in Farmingdale Iron Works, supra, the Board analyzed a factual situation re- markably similar to that herein involved. Therein, the employer violated a collective-bargaining agreement well outside the 10(b) period by making no contributions to contractual fringe benefit funds, and the union was well aware of such as a result of monthly reports from the funds' trustees. While concluding that Section 10(b) pre- cluded any remedy for the failure to make payments out- side the 6-month period preceding the charge, the Board further concluded that an unfair labor practice finding was not time-barred in its entirety: The Board . . . has considered the application of Section 10(b) to the unilateral discontinuance, in the face of a bargaining obligation, of benefits which formerly were granted on a periodic basis. Thus, the Board has held that each denial of a merit in- crease to employees whose evaluations previously would have entitled them to such an increase con- stituted a separate and distinct violation of the Act which could be remedied upon the filing of a charge within 6 months after the denial of that par- ticular increase. The Board further has held that the unilateral decision to discontinue making benefit fund contributions, like the failure to make periodic wage increases, constitutes a violation of Section 8(a)(5) of the Act. Accordingly, we conclude that each failure to make the contractually required monthly benefit fund payments constituted a sepa- rate and distinct violation of Respondent's bargain- ing obligation and, therefore, that any benefit fund payment [within the 10(b) period] is subject to the Board's remedial powers. [249 NLRB at 99. Em- phasis supplied.] 2 Accordingly, not only is Board law clear that each failure by Respondent during the 10(b) period to make the contractually mandated fringe benefit contributions constituted a separate violation of Section 8(a)(1) and (5) of the Act, but also the cases which are relied upon by Respondent are distinguishable and not on point. Thus, in Bonwit Teller, Inc., 96 NLRB 608 (1951), no conduct occurred within the 10(b) period and no unfair labor practice may be based upon "bare presumption" of the continuity of an unlawful practice. In Continental Oil Company, 194 NLRB 126 (1971), the employer merely adhered to a method of calculating overtime established more than 6 months before the filing of the charge. Like- wise, in The Dow Chemical Company, 216 NLRB 82 (1975), the employer paid sick leave and insurance bene- fits pursuant to a system adopted unilaterally outside the 10(b) period. Further, in both Paper Products and Miscel- 21 The cases in which the Board concluded that failures to grant merit raises within the 10(b) period constitute separate and distinct unfair labor practices are Allied Products Corporation. Richard Brothers Division. 218 NLRB 1246 (1975), and General Motors Acceptance Corporation, 196 NLRB 137 (1972), enfd. 476 F 2d 850 (Ist Cir 1973) 975 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laneous Chauffeurs, Warehousemen and Helpers, Local 27, et al. (Combined Container Industries), 209 NLRB 883 (1974), and Kaiser Foundation Hospitals, et al., 228 NLRB 468 (1977), the Board concluded that the conduct within the 10(b) period was innocent on its face and could only be considered unlawful through reliance upon time- barred conduct. Respondent's second defense to this unlawful unilateral change allegation concerns the Charging Party's failure to ever request bargaining about it, and it, in turn, has two separate facets. The first is that the Charging Party, at all times, remained silent and, thus, must be deemed to have "clearly acquiesced in the Employer's actions." In this regard, Respondent asserts that, from the inception of the clerical employees' sympathy strike, the Charging Party was aware that not only was Respondent utilizing strike replacements but also it had implemented its own insurance plans and, consequently, was not remitting payments to the contractual fringe benefit funds. In sup- port, Respondent points to several factors, such as John McLaughlin's presence at the picketed facilities on sever- al occasions, the supposed activities of the Charging Party's business agents, and reports from the benefit funds' administrators to McLaughlin. Finally, it is noted, the Charging Party clearly was on notice of the practices of Respondent in view of Hasse's letter dated June 20, 1980. 1 am not unaware that the Board has, on occasion, found that a union acquiesced to an employer's other- wise unlawful conduct by, in effect, "sitting on its rights" for lengthy periods of time. See, e.g., Marine Of- ficers Association. Teamsters Union Local No. 54 (Riverway Co.), 260 NLRB 1360 (1982). However, the primary con- sideration is the labor organization's knowledge of the unlawful conduct, and beyond speculation and conjec- ture as to what John McLaughlin or any other agent of the Charging Party knew prior to June 20, 1980, there exists not a scintilla of direct evidence to controvert McLaughlin's specific denial of knowledge with regard to the utilization of strike replacements or his stated as- sumption, not entirely unreasonable, that managerial em- ployees were performing the clerical work. It remained the burden of Respondent affirmatively to establish the Charging Party's knowledge prior to June 20, 1980,22 and while I need not credit uncontroverted evidence if improbable or at odds with other record evidence, "Speculation, conjecture, and surmise are not a substitute for such evidence; there must be some basis in the record from which inferences may be drawn which are contrary to direct testimony, if such is desired." McCormick & Co., Inc., Grocery Products Division, 254 NLRB 922, 923 (1981). With regard to the Charging Party's knowledge of Respondent's unlawful conduct subsequent to June 20, 1980, there is no question that Haase's letter of that date, announcing for the first time that "we have been operat- ing with temporary strike replacements for our office work," placed the Charging Party on notice that Re- spondent was utilizing strike replacements; however, I do not believe that raised the matter of a unilateral 22 It was not the burden of either the General Counsel or the Charg- ing Party to call witnesses to deny such knowledge; rather, the burden was upon Respondent to first establish knowledge on the part of the Charging Party. change or of a bargainable subject. Thus, in his letter, Haase wrote that the strike replacements were temporary and that, accordingly, the parties' collective-bargaining agreement was not being applied to them. Notwithstand- ing counsel's post-hearing brief position, clearly, if tem- porary and not in the bargaining unit, the contract would not have applied to the replacements. In these circum- stances, relying upon the veracity of Haase's letter, Re- spondent's stated position was correct and there was no need for the Charging Party to request bargaining. In these circumstances, there is nothing to warrant the in- ference that, by relying upon the truthfulness of Haase, the Charging Party was somehow condoning an unfair labor practice and waiving its right to bargain. Citing Board Decisions in The City Hospital of East Liverpool Ohio, 234 NLRB 58 (1978), and Citizens Nation- al Bank of Willmar, 245 NLRB 389 (1979), Respondent next argues that once a labor organization has notice of an employer's proposed change in employees' terms and conditions of employment, it must timely request bar- gaining in order to preserve its right to do so and that merely filing an unfair labor practice charge is not suffi- cient for such purposes. Inasmuch as the Charging Party never requested to bargain over Respondent's conduct, according to counsel, it has waived its right to now com- plain as to the alleged "unilateral" change. I find these arguments to be without merit. Initially, I note that no- where in Haase's June 20, 1980, letter is there any indica- tion of a change in bargaining unit employees' terms and conditions of employment so as to place the Charging Party on notice of such. To the contrary, the letter is written in terms of nonbargaining unit employees and their terms and conditions of employment. Assuming ar- guendo, that the letter does constitute notice of a change, the significance of East Liverpool and Willmar is the Board's emphasis upon notice of a proposed change. Whatever notice was contained in the Haase letter, it was of a change in employee terms and conditions of employment implemented 10 months earlier and, thus, of a fait accompli. In short, the Charging Party had no ade- quate opportunity to bargain, and Respondent's invita- tion to the Charging Party for "questions," in the forego- ing circumstances, can hardly be taken as an invitation for bargaining. There can be no finding of waiver in these circumstances. M. A. Harrison Manufacturing Com- pany, Inc., 253 NLRB 675, 676 (1980); Pinewood Care Center, Inc., etc., 242 NLRB 816, 822 (1979). In the foregoing circumstances, and based upon the record as a whole, I find that Respondent's failure, since on or about July 15, 1980, to pay contractually mandated fringed benefits on behalf of the strike replacements who, it concedes, are bargaining unit employees, without ini- tially bargaining with the Charging Party, constitutes a unilateral midterm modification of a contract, violative of Section 8(a)(1) and (5) of the Act. Farmingdale Iron Works, supra; Los Angeles Marine Hardware Co., a Divi- sion of Mission Marine Associates, Inc., et al, 235 NLRB 720, 735 (1978). The consolidated complaint next alleges that Respond- ent violated Section 8(a)(1) and (5) of the Act by with- drawing recognition from the Charging Party as the ma- 976 ABBEY MEDICAL/ABBEY RENTS, INC. jority representative of its clerical employees by its letter to the Charging Party dated November 26, 1980. It is well settled that a labor organization, whether certified by the Board or voluntarily recognized by the employer, enjoys a presumption of majority status during the term of, and subsequent to the expiration of, a collective-bar- gaining agreement. Morco, Inc. d/b/a Towne Plaza Hotel, 258 NLRB (1981); Petroleum Contractors, Inc., 250 NLRB 604, 607 (1980); The Saloon, Inc., 247 NLRB 1105 (1980), enfd. 647 F.2d 171 (9th Cir. 1981). However, this presumption of majority status is a rebuttable one. Thus, the burden is upon the asserting party to establish that the labor organization does not, in fact, represent a ma- jority of the bargaining unit employees or that, on the basis of objective considerations, it had a good-faith rea- sonable doubt as to the labor organization's continuing majority status. Morco, Inc., supra; The Saloon, Inc., supra at 1108. In this regard, Respondent contends that the three employee petitions (Resp. Exhs. 1, 2, and 3) which were received by George Zissis on November 20, 1980, were sufficient to establish such a reasonable doubt of the Charging Party's majority status. Thus, of a total bargaining unit complement of, at most, 32 employees (strikers, nonstrikers, and strike replacements), 23 18 indi- viduals executed the petitions, and Respondent checked the names against its bargaining unit payroll records. In similar circumstances, the Board has held that such peti- tions may be utilized as the required objective consider- ations, supporting an employer's good-faith doubt of a union's continued majority status. Hydro Conduit Corpo- ration, 254 NLRB 433 (1981). Guerdon Industries, Inc., 218 NLRB 658, 660 (1975); American Express Reserva- tions, Inc., 209 NLRB 1105 (1974). However, "The Board has long established that . . . an asserted doubt of the Union's continued majority must be raised in a context free of unfair labor practices." Colson Equipment, Inc., 257 NLRB 78, 79 (1981); Chicago Magnesium Castings Company, 256 NLRB 668 (1981); P. A. Incorporated, 248 NLRB 491 (1980). Elaborating on this point, the Board has held that, to be sufficient to taint the objective considerations underlying the asserted doubt, the unfair labor practices must be, "of such a character as to either affect the Union's status, cause em- ployee disaffection, or improperly affect the bargaining relationship itself." Guerdon Industries, supra at 661; Chi- cago Magnesium Castings, supra. Herein, at the same time as employees were executing petitions designed to remove the Charging Party as their bargaining repre- sentative, Respondent continued to fail to make contrac- tually mandated fringe benefit payments on behalf of said employees and, thereby, unilaterally changed their terms and conditions of employment without bargaining with the Union-in violation of Section 8(a)(1) and (5) of the Act. As the Board stated in Guerdon Industries, which involved a similar unilateral change, such "graphically 2a There is doubt as to whether the strikers are properly includable in the bargaining unit as of November 19, 1980. Thus, the strike was then in its 15th month. The General Counsel concedes that the strike replace- ments were permanent employees. As sympathy strikers, the striking cler- icals assumed the status of economic strikers who have been permanently replaced. Under Sec. 9(cX3) of the Act, these individuals would not be eligible to vote in a representation election. Levitz Furniture Company. supra portrayed to the employees that Respondent was in a po- sition to confer or withdraw economic benefits without regard to the presence of the Union. Such a failure by Respondent to accord to the Union its rightful role to negotiate such programs for the employees necessarily tended to undermine the Union's authority among the employees, whose interest it was obligated to represent in such matters, with erosion of majority status the prob- able result." Id. at 661-662; James F. Stanford, Inc. d/b/a Ace Machine Co., 249 NLRB 623, 635 (1980); P. A. Incor- porated, supra; Harvey's Wagon Wheel, Inc., d/b/a Har- vey's Resort Hotel A Harvey's Inn, 236 NLRB 1670 (1978). 24 Based upon the foregoing, and the record as a whole, I must likewise conclude that Respondent was not entitled to question the Charging Party's continuing majority status on the strength of evidence of employee disaffection with it, such coming in the midst of continu- ing, and unremedied, unfair labor practices. C & C Ply- wood Corporation, 163 NLRB 1022 (1967), enfd. 413 F.2d 112 (9th Cir. 1969). The withdrawal of recognition was, therefore, violative of Section 8(a)(l) and (5) of the Act. The consolidated complaint next alleges that Respond- ent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide to the Charging Party the infor- mation which was requested in the latter's January 19, 1981, letter. Respondent argues that it was under no obli- gation to provide information to the Charging Party as it ". .. had decisively been repudiated by the unit employ- ees," and as, in any event, by the terms of Respondent's January 23, 1981, letter, it adequately responded to said request. Initially, the consolidated complaint alleges that the Charging Party sought the following information: the names of all of Respondent's clerical employees; their ad- dresses, social security numbers, dates of employment, and hourly rates of pay; whether said employees are cov- ered by the contractual fringe benefit plans; and whether Respondent has regularly made the required contribu- tions on their behalfs. Further, a review of the January 19 letter establishes that said information was requested to assist the possible filing of grievances. It has long been held that an employer has an obligation, as part of its duty to bargain in good faith, to provide information needed by a bargaining representative for the proper per- formance of its duties, including the processing of griev- ances. N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149 (1956); ACC Typographers, Inc. d/b/a Advertisers Composition Company Typographers, Inc., 253 NLRB 1019 (1981); Doubarn Sheet Metal, Inc., 243 NLRB 821 (1979); Temple-Eastex. Incorporated, et al., 228 NLRB 203 (1977). Furthermore, the only standard for determining whether particular requests for information must be hon- ored by an employer is one of relevancy. N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967); Los Angeles 24 That the affected employees herein were, for the most pan, stnrke replacements is a distinction without a difference Thus, said individuals are as likely to have commenced their employment neutral in attitude toward the Union as antiunion in opinion. Also, the fact that the Charging Party had no contact with Respondent during the period of the strike is of little significance. Thus, with no evi- dence of the presence of permanent bargaining unit employees other than the nonstrikers. for whom Respondent scrupulously adhered to the con- tract, there was no reason for such contacts 977 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chapter, Sheet Metal and Air Conditioning Contractors National Association, et al., 246 NLRB 886 (1979). How- ever, where the information pertains to the mandatory subjects of bargaining and covers the very terms and conditions of employment of the bargaining unit employ- ees, such information involves the "core of the employ- er-employee relationship" and, thus, the standard of rel- evance becomes very broad and no specific showing of relevancy is normally required. Teleprompter Corporation v. N.L.R.B., 570 F.2d 4, 8 (Ist Cir. 1977); Ohio Power Company, 216 NLRB 987, 991 (1975).25 Based upon my aforedescribed analysis, there can be no question that Respondent was in no position to doubt the continued majority status of the Charging Party when it received the latter's request for information shortly after January 19. Accordingly, assuming the rel- evance of such, Respondent was obligated to provide this information. The Board holds that information, in- cluding the names of bargaining unit employees, their ad- dresses, seniority dates, and wage and benefits informa- tion, "is presumptively relevant" without regard to whether said individuals are regular employees or strike replacements. Aydin Energy Division, 245 NLRB 468 (1979); Georgetown Associates d/b/a Georgetown Associates d/b/a Georgetown Holiday Inn, 235 NLRB 485 (1978). Accordingly, the Charging Party, as the continuing ma- jority representative of the clerical employees, was enti- tled to said information, and such should have been pro- vided by Respondent. Salem Village I, Inc., 256 NLRB 1015 (1981); Edward Z. Holmes Detective Bureau, Inc., 256 NLRB 824 (1981); Tom's Food, Inc., 253 NLRB 888 (1980); Montgomery Ward & Co., 228 NLRB 1330 (1977). As to the social security numbers of the clerical employ- ees, I fail to see the relevancy for such information, and no evidence or argument was set forth demonstrating the need for this material by the Charging Party. Tom's Food, Inc., supra. Based upon the foregoing, I find that Respondent violated Section 8(a)(1) and (5) of the Act by failing to provide the aforementioned requested infor- mation, other than social security numbers, to the Charg- ing Party. 26 Finally, upon the expiration of the collective-bargain- ing agreement, Respondent ceased making fringe benefit contributions to the contractual funds on behalf of the four nonstriking clerical employees. There is no dispute as to this fact or as to the fact that such was done unilat- erally without bargaining with the Charging Party. The consolidated complaint alleges this, along with the unilat- eral change as to the strike replacements in this regard, 25 "[W]here the information sought . .. bears on matters other than wages and related data, it is incumbent on the union to demonstrate the relevance of the information it requests." Glazers Wholesale Drug Compa- ny, Inc., 211 NLRB 1063, 1066 (1974). 26 The defense that Haase somehow responded to the Charging Party's request in his January 23, 1981, letter is patently without merit. Thus, in said letter he referred back to his June 20, 1980, letter wherein he wrongly described the replacements as temporary and not in the bargain- ing unit. While it is true, and it is undisputed, that Haase did invite the Charging Party to request "further information," burden was on Re- spondent to provide and not upon the Charging Party to continually re- quest. DePaolma Printing Co., 204 NLRB 31, 33 (1973). Moreover, in view of Respondent's withdrawal of recognition 2 months earlier, it is clear that Respondent was not about to process any request for information by the Charging Party. as violative of Section 8(a)(5) and (1) of the Act. "[T]he Board has held that health and welfare and pension plans which are part of an expired contract constitute an aspect of employee wages and a term and condition of employment which survives the expiration of the con- tract." Henry Cauthorne, an Individual, t/a Cauthorne Trucking, 256 NLRB 721 (1981). As I have found that the Charging Party has been, at all times herein, the ma- jority representative of Respondent's clerical employees, the latter was obligated to bargain with the Charging Party before instituting such a change. The failure to do so is violative of Section 8(a)(1) and (5) of the Act. Henry Cauthorne Trucking, supra; Harold W. Hinson d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970). Accordingly, by the conduct described above, and the record as a whole, I conclude that Respondent violated Section 8(a)(1) and (5) of the Act as alleged in the con- solidated complaint. CONCLUSIONS OF LAW 1. Respondent is now and has been at all times materi- al herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office and clerical employees employed by Re- spondent at its retail outlets in San Francisco, Oak- land, Hayward, Santa Clara, and Redwood City, California; excluding guards, watchmen, profession- al, confidential and managerial employees, and su- pervisors as defined in the Act. 4. At all times material herein, the Union has been, and is now, the exclusive bargaining representative of all the employees in the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally, without bargaining with the Charg- ing Party, ceasing to make fringe benefit contributions on behalf of the aforementioned employees to contractual fringe benefit funds since on or about July 15, 1980, Re- spondent engaged in acts and conduct violative of Sec- tion 8(a)(l) and (5) of the Act. 6. By withdrawing recognition from the Charging Party as the collective-bargaining representative of the aforementioned employees, Respondent engaged in con- duct violative of Section 8(a)(l) and (5) of the Act. 7. By failing to provide necessary and relevant infor- mation to the Charging Party, Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of 978 ABBEY MEDICAL/ABBEY RENTS. INC. the Act. I have found that Respondent violated Section 8(a)(l) and (5) of the Act by withdrawing recognition from the Charging Party as the collective-bargaining representative of its clerical employees. As a remedy, I shall require Respondent to recognize and bargain in good faith, upon request, with the Charging Party. Next. I have found that Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally ceasing to make con- tractually mandated payments to several benefit funds and, thereby, changing employees' terms and conditions of employment. As a remedy, I shall require Respondent to revoke, upon request, said unilateral changes invoked on or subsequent to July 15, 1980, and to make contribu- tions retroactive to said date, 27 at the rates then in effect, on behalf of its clerical employees to the Charging Party's fringe benefit funds. 28 Also, the question of inter- est and other additional amounts payable into the con- tractual funds as part of this "make whole" remedy will be left to the compliance stage of this proceeding. Final- ly, I have found that Respondent violated Section 8(a)(1) and (5) of the Act by failing to provide certain informa- tion to the Charging Party. I shall require that Respond- ent be required to furnish to the Charging Party the in- formation requested-as found necessary and relevant herein. Upon the foregoing findings of fact, conclusions of law, and the record as a whole, I hereby issue the fol- lowing recommended: ORDER 2 9 The Respondent, Abbey Medical/Abbey Rents, Inc., Hawthorne, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively, upon request, concerning rates of pay, wages, hours, and 27 Counsel for the General Counsel cites the Board's Decisions in Don Burgess Construction Corporation d/b/a Burgess Construction, et al., 227 NLRB 765 (1977), and Land Equipment Incorporated, et a., 248 NLRB 685 (1980), as support for her argument that said reimbursement remedy should be retroactive to September 1979. The aforementioned cases would permit such a remedy where a respondent conceals the commis- sion of an unfair labor practice from a labor organization. Herein, be- tween September 1979 and June 1980. while there is no evidence to con- trovert John McLaughlin's testimony that the Charging Party was un- aware of Respondent's utilization of strike replacements and consequent failure to make fringe benefits contributions on their behalf. there is, also, no record evidence to establish that Respondent "concealed" this fact from the Charging Party. In this regard, Haase's June 20 letter should not be read as such. Thus, notwithstanding their apparent legal status, and Respondent's post-hearing admission of same, I find that Haase, based upon his testimony and demeanor, truly believed the replacements to be temporary at the time of his letter. Accordingly, I do not deem it appropriate to go beyond the statutory 10(b) period in order to fashion an appropriate remedy herein. 28 If any employee suffered losses as a result of Respondent's unilateral changes with regard to payments to the fringe benefit funds, Respondent is ordered to reimburse said individuals in an, amount not covered by other funds or insurance policies, provided that such amount shall not exceed what the employee would have received pursuant to the Charg- ing Party's plans. 29 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 prosided 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. other terms and conditions of employment with Freight Checkers, Clerical Employees & Helpers, Local No. 856, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein called the Charging Party, as the exclusive representative for purposes of collective bargaining for employees in the following unit: All office clerical employees employed by Respond- ent at its retail outlets in San Francisco, Oakland, Hayward, Santa Clara, and Redwood City, Califor- nia; excluding guards, watchmen, professional, con- fidential, and managerial employees and supervisors as defined by the Act. (b) Unilaterally, without notice to or bargaining with the Charging Party, changing the terms and conditions of employment of the aforementioned individuals. (c) Refusing to furnish information to the Charging Party pertaining to its current clerical employees, includ- ing their names and addresses, rates of pay, dates of em- ployment, and whether they are covered by the contrac- tual fringe benefit plans. (d) In any like or related manner interfering with, co- ercing, or restraining employees in the exercise of their Section 7 rights. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain with the above-named labor organization as the exclusive repre- sentative of all the employees in the above appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Upon the Charging Party's request, revoke any unilateral changes in the payment of contractually man- dated fringe benefits to various benefit funds, effective since July 15, 1980. (c) Pay to the appropriate trust funds the contributions required as of July 15, 1980, to the extent that such con- tributions have not been made or that the employees have not otherwise been made whole for their ensuing medical and other expenses, and continue such payments until Respondent negotiates in good faith with the Charging Party to an agreement, or to good-faith im- passe, or until the Charging Party refuses to bargain. (d) Furnish to the Charging Party the information re- quested on or about January 19, 1981, to the extent found necessary and relevant herein. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, work schedules, production reports and data, social security payment records, timecards, person- nel records and reports, and all other records and entries necessary to determine Respondent's compliance with this Order and the amount of backpay and other sums and benefits due under the terms of this Order. (f) Post at its places of business in San Francisco, Oak- land, Hayward, Santa Clara, and Redwood City, Califor- 979 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nia, copies of the attached notice marked "Appendix."3 0 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 20, in writing, within 20 days of this Order, what steps it has taken to comply herewith. s0 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant 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 After a hearing at which both sides had the opportunity to present evidence, the National Labor Relations Board has found that we have violated the National Labor Re- lations Act and has ordered that we post this notice. We hereby promise that: WE WILL. NOT refuse to recognize and bargain collectively, upon request, concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with Freight Checkers, Clerical Employ- ees & Helpers, Local No. 856, affiliated with the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, as the exclusive representative for purposes of collective bargaining for employees in the following unit: All office and clerical employees employed by Respondent at its retail outlets in San Francisco, Oakland, Hayward, Santa Clara, and Redwood City, California; excluding guards, watchmen, professional, confidential, and managerial em- ployees and supervisors as defined by the Act. WE WILL NOT unilaterally, without notice to or bargaining with the Union, change the terms and conditions of employment of the aforementioned employees. WE WILl NOT refuse to furnish information to the Union pertaining to the aforementioned employ- ees, including their names and addresses, rates of pay, dates of employment, and whether they are covered by the Union's fringe benefit plans. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL furnish such information to the Union in order to enable it to effectively bargain with us or file grievances on behalf of the aforementioned employees. WE WILL recognize and, upon request, bargain with the above-named labor organization as the ex- clusive representative of all the employees in the above appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL, upon the Union's request, revoke our unilateral change with regard to making required fringe benefit contributions on behalf of the afore- mentioned individuals to the Union's fringe benefit funds. WE WILL make whole the employees specified in the above paragraph and all unit employees hired on or after June 9, 1979, for any losses of pay each may have suffered, respectively, either as a result of the discrimination against them or because of our failure to apply to them the terms and conditions of employment in effect on June 6, 1980. No part of the Board's Order herein shall be construed as forc- ing or requiring us to subtract or withdraw any benefit or benefits heretofore granted to unit em- ployees commencing June 9, 1980. WE WII.L pay to the appropriate union trust funds the contributions required as of July 15, 1980, to the extent that such contributions have not been made or that the employees had not otherwise been made whole for their ensuing medical and other ex- penses, and continue such payments until we negoti- ate in good faith with the Union to an agreement or to good-faith impasse or until the",Union refuses to bargain. ABBEY MEDICAL/ABBEY RENTS, INC. 980