Randle-Eastern Ambulance Service, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Randle-Eastern Ambulance Service, Inc. and Randle Medical Sales & Rentals, Inc. and Transport Workers Union of America, Local 500, AFL-CIO. Case 12-CA-7246 June 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 16, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions, supporting briefs, and answering briefs. Pursuant to the provisions of the 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, find- ings,1 and conclusions2 of the Administrative Law Judge and to adopt her recommended Order, as modified herein. We agree with the Administrative Law Judge, for the reasons stated by her, that Respondent violated Section 8(a)(5) and (1) of the Act by, on April 22, 1976, withdrawing all its proposals from the negotiat- ing table; on June I submitting new proposals which in some respects offered the Union less than those upon which the parties had previously reached tentative agreement; and on June 7 withdrawing recognition from and refusing to bargain with the Union because of an asserted, but unsupported, doubt of the Union's continued majority status. However, we find, contrary to the Administrative Law Judge and in agreement with the General Counsel, that the strike was converted into an unfair labor practice strike on April 22, 1976, rather than the later date of June 7. On March 31, 1976, the union membership rejected the tentative oral argument reached by the parties and an economic strike commenced at midnight. On April 22, 1976, Respondent took the dramatic step of withdrawing all prior offers from the bargaining table and in spite of the Union's request to return the prestrike agreement to the bargaining table. Respon- dent refused. We have found that this conduct violated Section 8(a)(5). We further find that Re- spondent's unlawful withdrawal of all its prior proposals on April 22 seriously impeded the success of the negotiations and thus prolonged the strike and its settlement. Accordingly, we find that on April 22 the economic strike was converted into an unfair 230 NLRB No. 69 labor practice strike.3 We will, therefore, order that Respondent, upon application, reinstate the unfair labor practice strikers who were not permanently replaced prior to April 22, 1976. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Randle-Eastern Ambulance Service, Inc., and Randle Medical Sales & Rentals, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order as so modified: 1. In paragraph 2(a), substitute the date; of "April 22, 1976," for "June 7, 1976." 2. Substitute the attached notice for that of the Administrative Law Judge. t The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 Based on the credited testimony of economic striker Norman Turek, the Administrative Law Judge found that on June 3, 1976, Respondent's director of operations, Leonard Provenzano, told Turek that he had to resign from the Union before he could return to work for Respondent. In late June or early July, Turek was offered reinstatement dunng a telephone conversation with Respondent's vice president, Charles O'Conner. Accord- ing to O'Conner's testimony, which was not discredited by the Administra- tive Law Judge, Turek raised the question of resigning from the Union before being reinstated and O'Conner told Turek "it didn't make any difference what organization he belonged to, that I was only interested in filling an ambulance service position." Respondent contends, as it did in its brief to the Administrative Law Judge, that, even if Provenzano made the coercive statement alleged, it was neutralized by O'Conner's subsequent disavowal. The Administrative Law Judge rejected Respondent's conten- tion, finding that "O'Conner's equivocal responses" did not "constitute an adequate repudiation of Provenzano's coercive statement." We find, contrary to the Administrative Law Judge, that O'Conner's remarks were not ambiguous, but rather had the potential of neutralizing Provenzano's coercive statement. Steves Sash & Door Company, 164 NLRB 468, 475-476 (1967). However, O'Conner's repudiation came a month or more after the coercive statement, thus making it so remote in time as to vitiate its effectiveness. Accordingly, we find, as did the Administrative Law Judge, that Respondent violated Sec. 8(aX I) of the Act by informing economic strikers that reinstatement was conditioned upon resignation from the Union. 3 Cantor Bros., Inc., 203 NLRB 774, 779 780 (1973); San Antonio Machine& Supply Corp., 147 NLRB 1112, fn. 1, 1116-17(1964). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell striking employees applying for reinstatement they have to resign from membership in Transport Workers Union of 542 RANDLE-EASTERN AMBULANCE SERVICE America, Local 500, AFL-CIO, before they can return to work. WE WILL NOT refuse to bargain collectively with the above-named Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL offer, upon application, to all our employees engaged in an unfair labor practice strike, who were not permanently replaced while economic strikers, reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging if necessary and replacements hired on or after April 22, 1976, when the economic strike was prolonged and converted into an unfair labor practice strike. WE WILL make each of these striking employees whole for any loss of earnings they may suffer by reason of the failure, if any, to reinstate them upon application, with interest thereon at 6 percent per annum. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive representative of our employees in the unit found appropriate with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and embody in a signed agreement any understanding reached. The bargaining unit is: All ambulance drivers and ambulance atten- dants, all mechanics (regular and part-time), all rental and service employees, all medical examiner drivers and attendants, and all hearse and limousine drivers, at our Miami, Florida, location, excluding all office clerical employees, guards, professional employees, chief mechanic, dispatchers, and all supervi- sors as defined in the Act. RANDLE-EASTERN AMBULANCE SERVICE, INC. AND RANDLE MEDICAL SALES & RENTALS, INC. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on June 8, 1976,1 by Transport Workers Union of America, Local 500, AFL-CIO, herein called the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12 (Tampa, Florida), issued a complaint and notice of hearing on August 17. The complaint alleges in substance that Randle-Eastern Ambu- lance Service, Inc., and Randle Medical Sales & Rentals, Inc., herein referred to jointly as the Respondent, which has had contractual relations with the Union since a Board certification in June 1967, in negotiations for a new contract withdrew all its contract proposals on April 22 and, since on or about June 7, refused to recognize or bargain with the Union, in violation of Section 8(aX5) and (I) of the National Labor Relations Act; by these unfair labor practices prolonged a strike that began on or about March 31; and on or about June 3 told striking employees they had to resign from the Union before they could return to their jobs, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. In its answer, duly filed, the Respondent admits certain allegations of the complaint, including the allegation that it advised the Union on or about June 7 it would no longer recognize or bargain with the Union; asserts that it also advised the Union of its doubt that the Union continued to represent a majority of the employees; and denies that it engaged in any conduct violative of the Act. Pursuant to notice, a hearing was held before me in Coral Gables, Florida, on September 29 and 30. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing, the General Counsel presented closing argument and, subsequent to the hearing, on or about November 26, the Respondent filed a brief, each of which has been duly considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Florida corporation with its principal office and place of business located in Miami, Florida, where it is engaged in the business of selling and renting medical equipment to retail customers and in providing ambulance service and attendant emergency first-aid treatment to individuals. During the 12 months preceding issuance of the complaint, which is a representa- tive period, the Respondent, in the course and conduct of its business operations, had a gross revenue in excess of $500,000, of which services for Dade County, Florida, were in excess of $150,000. During the same period of time, the Respondent purchased goods, materials, and supplies valued in excess of $5,000 directly from points located outside the State of Florida. The complaint alleges, the Respondent in its answer admits, and I find that the Respondent is, and at all times material herein has been, an All dates hereinafter refer to 1976 unless otherwise indicated. 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer admits, and I find that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues As the complaint alleges and the Respondent in its answer admits, the Union was certified on June 12, 1967, as the representative of an appropriate unit of the Respon- dent's employees comprised of all ambulance drivers and ambulance attendants, all mechanics (regular and part- time), all rental and service employees, all medical examiner drivers and attendants, and all hearse and limousine drivers, at its Miami, Florida, location, excluding all office clerical employees, guards, professional employ- ees, chief mechanic, dispatchers, and all supervisors as defined in the Act; the Respondent entered into successive collective-bargaining agreements with the Union, the last bearing an effective date of May 1, 1973, and by its terms to continue in effect until March 31, 1976; the parties, beginning on or about February 2 and on various dates thereafter including April 8, engaged in negotiations for the purpose of entering into a new agreement; the Respondent, on or about June 7, notified the Union at a scheduled collective-bargaining session that it would no longer recognize or bargain with the Union, and since that date has refused to recognize or bargain with the Union; and certain employees of the Respondent went on strike on or about March 31. The strike was still in effect at the time of the hearing. The complaint also alleges, and the Respon- dent admits, that William Randle, president of both Respondent companies, James Randle, a company officer, and Charles O'Conner and Leonard Provenzano, respec- tively vice president and chief of operations of Randle- Eastern Ambulance Service, Inc., are supervisors within the meaning of Section 2(11) of the Act. The complaint also alleges, while the Respondent's answer denies, that the Union has continued at all times since June 1967 to be the exclusive representative of the unit employees; that, on or about April 22, the Respon- dent, by Muller, its attorney, bargained in bad faith when, in a negotiation session held in the office of the Federal Mediation and Conciliation Service, he informed the Union that the Respondent was withdrawing all its previous contract proposals; that the Respondent, by conduct since on or about April 22 violative of Section 8(a)(5) and (I) of the Act, prolonged the strike; and that the Respondent, by Provenzano, informed striking employ- ees they would have to resign from the Union before they could return to work, in violation of Section 8(aXl) of the Act. The General Counsel also argued at the hearing that the parties, after negotiating for about 2 months, reached tentative agreement on March 29 but the membership, over the recommendation of the union committee, rejected the agreement and voted to go on strike; that the Respondent on April 22 withdrew all its proposals and, on June 1, submitted new proposals with provisions harsher than those withdrawn and those in the expired contract; that the Respondent bargained in good faith from February 2 until April 22 but, on and after April 22, engaged in bad-faith bargaining; and that the strike that began on midnight of March 31 as an economic strike was prolonged and converted into an unfair labor practice strike by the unfair labor practices of the Respondent. The principal issues, therefore, are whether or not the Respondent negotiated in good faith on and after April 22; whether it withdrew recognition and refused to negotiate further on June 7 in violation of Section 8(aX5) and (1) of the Act or because of a valid doubt of the Union's continuing representative status; whether or not the Respondent engaged in unlawful conduct that prolonged and converted an economic strike that began at midnight on March 31; and whether or not strikers were told by Provenzano they had to resign from the Union in order to come back to work. B. The Negotiations 1. February 2 to March 25 The General Counsel called as the first witness Roberts, president of Local 500, who participated in the negotiations for a new contract beginning in February. Roberts did not take notes of what was said at the negotiations, and testified as to when sessions were held, who attended, and what occurred on the basis of his recollection. On cross- examination by Respondent's counsel, Muller, Roberts responded to a number of questions that he did not recall but certain circumstances might have occurred as de- scribed by Muller. After Roberts completed his testimony, Muller stated that, in view of Roberts' testimony, he would testify as a witness for the Respondent. He thereupon withdrew as counsel for the Respondent, which was represented for the remainder of the hearing by Cocounsel Bramnick. Muller had taken notes during the negotiation sessions he attended beginning in the latter part of March. He admitted during his testimony he could not recall, without his notes, dates when sessions were held, who attended, or what occurred. Virtually all his testimony was based on what was set forth in his notes, which admittedly in some instances were incomplete or incomprehensible to Muller, in some so cryptic as to require interpretation by Muller, and, with regard to the final session, Muller had no notes and relied on those taken by Bramnick. Some of Muller's notes did not show dates or who was present, some indicated issues that were raised but not what was said, and in some of these instances Muller admitted he could not recall what occurred unless revealed by his notes. Negotiations for a new contract began at a meeting about February 2. The Respondent was represented by William Randle, James Randle, and O'Conner; the Union by Roberts, Redford, and Union Committeemen McGuire, Federman, Andres, and Brooks. Roberts testified that the Union presented a list of proposed contract changes, which 544 RANDLE-EASTERN AMBULANCE SERVICE were discussed; that one of the union proposals was to omit the management rights clause in the prior contract which the Union found "very restrictive"; that the Respondent convinced the Union there should be a management rights clause, and asked the Union to draw up what would be acceptable; and that this was done and was presented at the next meeting, held on about February 10. Roberts also testified that the Respondent submitted counterproposals at the next meeting, held on or about March 10, and several additional proposals at a meeting on or about March 26; and that on the same day or the following day, the Union presented a proposal on arbitration. On cross-examination, Roberts testified that the first meeting at which Muller and a mediator were present "could have been" on March 22. He also testified that the Union's wage package proposal sought an increase of 15 percent of employee earnings each year of the 2-year contract, which the Union reduced to 10 percent each year; increases in medical coverage, the full price of a semipri- vate room and, Roberts believed, $100,000 major medical; a retirement plan based on 2-1/2 percent of the previous year's pay for each year of service collectible at age 60; a cost-of-living clause; an extra floating holiday at double time rates; and a change in the work schedule set by the old contract, 24 hours on, 24 off, totaling 84 hours a week, to 24 on, 48 off, totaling 60 hours a week, at the same pay. Roberts also testified, on cross-examination, that the next meeting was on March 24; that a mediator was present; that he might have told the mediator the parties were a long way apart as they were; that Muller said the Union's proposal to reduce the workweek would cost the Respondent a great deal of money but Roberts could not recall the stated figures; and that the Respondent suggest- ed that certain of the economic items be submitted to arbitration, "Subject to being funded by the County Commissioners." 2 Roberts also testified that the Respondent gave him a proposal in writing to submit a number of issues to arbitration; that he rejected it but "was going to sit down and work up one with" Muller, or have union counsel do so; and that no agreement was reached on this matter. Muller testified that the first meeting at which he and a mediator were present was the one on March 24; that the Union told the mediator the parties were a long way apart; that the Respondent said the Union's proposed shift change would cost about $260,000, asked if the Union held to it, and the Union did; that the Respondent suggested that and other monetary issues go to binding arbitration; and that the Union agreed as to a number of issues but not that the arbitration award be subject to funding by the county. Roberts testified, on cross-examination, that the next meeting was possibly on March 25; that the Union could have increased its demands on that date for major medical benefits of $100,000 and coverage of the full cost of hospital room and maternity, dental, drug, and optical costs; a 2-1/2 percent employer contribution to a pension plan to be fully vested in 10 years; and an insurance policy based on the value of 2 years of an employee's salary on 2 The Respondent provides ambulance service for private patients and, under contract with the county. for fire and police agencies. with the fees for both kinds ofcalls set by the county. retirement. Roberts also testified that the Respondent's offer to withdraw the existing polygraph requirement might have been made on that date or a day or so later. 2. Tentative agreement reached on March 29 Roberts testified that a meeting was held on March 29 at the mediation office. He also testified, on cross-examina- tion, that the Respondent made concessions in the supplemental workmen's compensation coverage by agree- ing to pick up a portion of the pay between, possibly, the 7th and the 30th day; agreed to increase major medical from $25,000 to $100,000, and, Roberts believed, offered to provide $5,000 in life insurance coverage, to which the Union's response was that it was "going to need more improvements than hospitalization"; and proposed to bear the full cost of a semiprivate hospital room, which the Union accepted after a caucus. Roberts also testified that an agreement was reached at this March 29 meeting subject to ratification by the membership; that the agreement was not reduced to writing; that Roberts and Redford suggested they would prepare a synopsis to be presented to the membership with the union committee's recommendation that the agreement be accepted; and that Randle requested that, when they had prepared the synopsis, they call him and go over it with him to make sure it was what they agreed on. Roberts testified further that he read the synopsis on the telephone to Randle, who indicated it correctly reflected their agreement. The synopsis set forth the clauses in the prior contract that were to be changed, left blank the clauses that were to remain the same, incorporated a management rights clause proposed by the Respondent on March 10 to which the parties had agreed, included cost-of-living as part of the wage package, and dealt with the Respondent's offer of arbitration as to three items not settled-wages, retirement, and the 84-hour work schedule. 3. Strike voted for midnight March 31 Membership meetings for the two shifts were held at 7 p.m. on March 30 and 9:30 a.m. on March 31. The union negotiating committee reported to the membership, gave each member a copy of the synopsis, and the committee members present at each meeting unanimously recom- mended ratification. Roberts testified, on cross-examina- tion, that the committee explained to the membership that provisions covering wages, retirement, work schedule, and cost-of-living were not yet settled; that the Respondent proposed they arbitrate those items; and that Randle and Muller had informed the committee that the money would have to be funded by the county, there was a question whether the impact of the arbitration award might cause the county not to fund it, "we could not make a settlement on the contract any other way without a strike, and we didn't want to strike." The membership nevertheless rejected the proposed contract and voted to strike at midnight, March 31. A strike began at that time and was still in effect at the time of the hearing. 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Negotiations resumed on April 8 The first negotiation meeting after the strike was held on April 8 at the mediation office. Roberts testified that William and James Randle, O'Conner, and Muller repre- sented the Respondent, with Muller as the spokesman, and Roberts, Redford, Brooks, Andres, and Federman repre- sented the Union, with Roberts and Redford as the spokesmen. Muller testified that he believed Redford was not yet in these negotiations, that he and O'Conner represented the Respondent and, maybe, James Randle, but that William Randle was not at any negotiation sessions after the strike began. The mediator at that meeting commented that he thought they had reached an agreement, and asked what happened. Roberts explained that the membership would not ratify it; that retirement, wage increases of 10 percent each year plus cost-of-living, and a work schedule of 60 or 84 hours a week were open issues. Roberts also testified that the major issue then was the demand for a reduction in the work schedule from 84 to 60 hours a week, and that the Respondent argued that this change would cause too great a financial burden and explained the limitations on what it could charge for ambulance service. Roberts testified that the Union, prior to the strike, had rejected a proposal of the Respondent for certain shifts off without pay, to be later partially reimbursed, and that the Respondent might have repeated this offer on April 8, but the offer was withdrawn. The Union withdrew its prestrike commitment on submitting issues to arbitration. There were various proposals and counterproposals for different shift schedules, with the Union stating as to one presented by the Respondent that it was not acceptable but the Union recognized the Respondent's funding problems.3 Each of the proposals made by one party, some accompanied by concessions as to certain issues, was rejected by the other, the Union claiming the Respondent's proposals would result in a substantial reduction in employee earnings, Muller claim- ing that the Union's proposals would be too costly for the Respondent. 5. Respondent's withdrawal of offers on April 22 The next meeting took place at the mediation office on April 22. Muller and O'Conner were there for the Respondent; Roberts, Redford, Brooks, and Federman for the Union. The Union's demands still included the reduction in the work schedule at the same pay, which the parties discussed. The Union also made other economic demands, which were discussed, and some were dropped. Among the various matters discussed were a 4-year contract with gradual changes in the work schedule, a wage reopener after 2 years, and the right to strike at that time. Roberts testified that Muller then announced, over the Union's objection, that the Respondent was withdrawing all its prior offers. Muller testified that, after considerable discussion of the work schedule proposals, he withdrew all prior offers and: 3 As to one of these proposals shown by his notes, Muller testified he did not know what it meant. I proposed to the Union at that point, We've been going back and forth on the work schedules. We've been going back and forth on the wage increases. Let us get off dead center. Let me give you an entire package that you can look at and accept, reject, modify or make proposals on. I will give you a complete package. At that point the Union met with the Mediator alone outside of our presence. The Mediator came back and said, "The Union wants all economics that were made prior to the strike left on the table, all economic concessions left on the table," that they want the arbitration, our request for arbitration dropped. "The Union will accept the proposal of the Company as made on March 26th prior to the strike." Muller testified further that the mediator said the Union wanted the Respondent to drop all its litigation with reference to strike damage actions. When the parties met again face to face, Muller raised a question about retention of the replacements hired by the Respondent. Redford insisted that the strikers be taken back according to seniority, and that any reductions in personnel be among the most junior, which meant the replacements. Muller responded, as he testified, "Well, that may give us some problems." There was another meeting in the mediation office on about May 3. Roberts was not sure of the date, and Muller's notes did not show it. Muller and O'Conner represented the Respondent and Roberts, Redford, and Brooks represented the Union. The only issues discussed related to the job rights of strikers and replacements. Muller stated that the Respondent had hired a number of replacements and wished to retain them, that those strikers who wished to come back should apply for jobs, that they would be recalled as needed, and that those who came back would retain the benefits accumulated by seniority. The Union insisted on application of the contract seniority provisions to this reinstatement issue. Redford maintained that otherwise no contract could be concluded, whatever other issues were resolved. No agreement was reached on this matter. Roberts testified that he then recommended they try to work out the contract provisions that were still open and get back later to the reinstatement issue, and that Muller insisted that was the first issue that had to be settled before they could get back to discussing the others, but said he would be very flexible on it, and suggested Roberts discuss it with the union committee and membership and then meet again "in a few days . .. The few days turned out to be a few weeks." The next meeting was on or about May 25. Muller, Bramnick, and O'Conner represented the Respondent, and Roberts, Redford, Brooks, Lawrence, and Lecuyer repre- sented the Union. According to Roberts' testimony: "I told Mr. Muller that we would be flexible on the call-back. I didn't go into details, but I think he understood what I meant, and he says, 'All right. That's the main issue.' I says, 'Well, let's work out the contract.' He says, well, he would have to draw up some proposals and would need some time. He has to get back with Mr. Randle and he will come 546 RANDLE-EASTERN AMBULANCE SERVICE back with a set of proposals. I says, 'All right. Let's get it going, get it done as quickly as we can so we can get the strike over with.' We then broke up." Muller testified that "Roberts opened the meeting by saying that he wants the Company to make a complete package proposal, and added to that, he wants the original package back on the table. I responded by saying that the original package will not go back on the table." Muller testified further that, after a caucus, "Roberts says, 'We will be flexible.' This is the first use of the term 'flexible.' Roberts says, 'We will be flexible on the replacement issue, but we want a complete package proposal to consider.' " Muller testified that he asked the Union to give him until June 2 "to get a complete proposal together," and that the meeting then closed. 6. Respondent's new proposals on June 1 The next meeting was on June I with the same representatives present. Muller presented to the Union about 8-10 proposals which, he testified, with provisions in the old contract that were not changed, would make a complete contract. The proposals contained no work schedule, replaced with a broader management rights clause the one to which the parties previously agreed,4 and reduced the wage progression that had been in effect under the expired contract from 6 cents every 6 months to 5 cents a year.5 Roberts testified that the Union, after a caucus, pointed out that the management rights clause in the tentative agreement reached on March 10 had been omitted and a new one substituted similar to the one in the prior contract. He also testified: "But the main change is they didn't address themselves to the work schedule. That was one of our main problems with these proposals.... We had asked that there be a work schedule, and even if it was the same 84 hour work week, as long as the guys knew what they were going to work, you know, the hours they were going to work when they went back. At that time, Mr. O'Conner made the statement that they did not know how many hours a week the men would work, that they would post a notice on the bulletin board a week prior to each shift, each schedule change, and at that time they would find out what hours they were going to work and how many hours they were going to work. That was unaccept- able to us and that was one of the major disagreements at that meeting. We asked them to come back with a work schedule that we can present to the people. They said they would get together with Mr. Randle and try to work something up." Roberts also testified that the Respondent asserted it had a problem on work schedule as it did not know what the schedule would be, and asked the Union to suggest language; that the Union wanted 24 on, 48 off, but offered to stay with the old 24 and 24; that the Respondent said needs had changed after the strike; and that he asked what the Respondent's work schedule was at that time, although he knew it from picket line rumors, but both 4 The synopsis of the tentative agreement between the parties contains a provision: "Rewrite management clause deleting restrictive language." I The provision in question provides under the heading "WAGE" that, effective upon execution of the agreement, "all wages will be increased by 5 Muller and O'Conner said they did not know what the current schedule was. Muller testified that Roberts pointed out there was no work schedule in the Respondent's proposals; that he said that was omitted because he did not know what to propose; that he asked the union representatives to suggest language but they would not; that Roberts asked if the Respondent did not know what the proposals were, and O'Conner replied that he could not anticipate what the needs would be but could post weekly schedules; that Roberts was asked if he would please help by giving the Respondent a schedule, but made no response; and that there was further discussion of the proposals, which he could not recall, before the Union indicated it would study them. Muller also testified that, "I think it was in the context of the replacement issue, Redford made the comment, 'Well you know, 50 to 25 percent of your employees are not coming back to work' "; and that, when he asked how Redford knew this, Redford said he heard it from the membership. O'Conner testified that he heard this conver- sation. Roberts also testified that "I heard the statement made that we estimated there would be 25 to 50% not coming back"; that he did not know if Redford or someone else made this comment "but I know it was made"; that Muller might have asked where Redford got this information; and that Roberts did not recall it but Redford might have said he was getting it from the membership. Redford, who had been present throughout the hearing, was called by the General Counsel as a rebuttal witness. He testified that he heard Muller testify that he said 25-50 percent were not returning, that he never said that or anything like it, and, on cross-examination, that he did not recall Roberts testifying that Redford said this. There was a meeting on June 2 at which the parties met separately with the mediator. According to Roberts' testimony, the Union offered to drop some economic proposals for a work schedule, suggested that anyone on the payroll from March 31 could stay but that men be recalled by seniority as of June 1, and asked that the Respondent's lawsuit be dropped. According to Muller's testimony, the Union's positions conveyed by the mediator were that it would reject any contract not containing a work schedule; as Muller interpreted his notes, any replacement hired after June 1 would be replaced by a striker who wanted to come back to work; certain seniority provisions had to be clarified to protect the strikers; the Union would waive any wage increase if the progression provision of 6 cents every 6 months were retained; and all lawsuits had to be with- drawn. 7. Respondent's termination of negotiations on June 7 Muller testified that he met with Randle, he thought at his law office, "possibly" with Bramnick present but Muller did not think O'Conner was there, "probably" on June I cents per hour: commencing the second year of this Agreement. all wages will be increased an additional 5 cents per year." The expired contract provided that "Wages will be supplemented by increases of $.06 per hour for each six-month period of continuous employment." 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the negotiation session; that he told Randle of Redford's comment that "about 'Fifty to 25 or 20 % aren't coming back to work' "; that he asked Randle if "your people still want this Union," and Randle replied, "I don't know"; that Randle stated how many replacements had been hired but Muller did not recall the numbers mentioned; and that Randle also said many returning strikers had sent him copies of their letters resigning from the Union, and other strikers had informed him they would never come back to work for the Respondent. A meeting was scheduled for June 7 with the mediator. Muller, Bramnick, and O'Conner were there for the Respondent; Roberts, Redford, Lawrence, Lecuyer, and Greenfield, the Union's attorney, for the Union. Roberts testified that "Mr. Muller made the statement that he didn't think we represented a majority of the people"; that Muller said he had discussed this with Randle and O'Conner and they doubted that the Union represented a majority; that there was some discussion of the Respon- dent's basis for this doubt; and that Muller "refused to negotiate with us any longer." Muller, who took no notes at this meeting, testified from notes taken by Bramnick, which he stated were in accord with his recollection, that: I opened the meeting by telling the Union committee that over the last week Mr. Randall [sic] and Mr. O'Conner have been considering whether or not-now this is what I told the Committee-whether or not the Union still represented a majority of the employees. I told the Union committee further that based on the information we had that Mr. Randle did not believe that the Union still represented a majority of employ- ees. Mr. Redford said, "Well, what are your reasons for this?" I told him the number of rehires, new hires that we have had-I am sorry, I said new hires-the number of new hires we have had, the people who have crossed the picket line, and at times, and I told him this a fairly rough picket line to come to work, the people who have resigned from the Union and the-let's see-the people that resigned from the Union. That's all. Those are the elements I gave to the Union across the table. That's all." Muller testified further that Redford said the proper procedure was for the Respondent to file a decertification petition; that, after a caucus, the Union asserted that the Respondent was not bargaining in good faith; and that he replied the Respondent had done so but now "we doubt you represent a majority." Muller testified, on cross- examination, that he did not know how many had resigned from the Union, but Randle knew that, as well as how many had resigned from their jobs with the Respondent and how many replacements had been hired; and that Randle computed figures on strikers not returning based on Redford's remark. Muller also testified that his office filed a petition for an election but the Board declined to process it. There were no further negotiations after June 7. Randle testified that he concluded, before the June 7 negotiation session, that he doubted the union majority; that, as he and O'Conner handled hire of replacements and rehire of strikers, he knew how many strikers came back, how many new employees were hired, the number of applicants waiting for their licenses to be renewed, and the number who resigned from their jobs with the Respondent so they could seek work as individuals who quit their jobs rather than as strikers. As to the numbers involved, Randle testified that, of about 177 in the unit, about 166 went on strike; that in June he had hired almost 50 replacements and rehired about 50 strikers; that about 10 sent letters of resignation from their jobs with the Respondent, one of whom was moving and wanted his vacation pay; that he received about 20 copies of letters resigning from the Union from employees who, when they were reinstated, told him others had resigned also; that the copies of these letters came by mail or were hand delivered, none with covering letters; and that he was not certain when he received them over a period possibly of months, or whether it was before or after these people were reinstated but he presumed it was after. None of these letters was placed in evidence. Randle also asserted that it was never company policy to require returning strikers to resign from the Union, and he never inquired if they had done so. The Respondent was permitted to place in evidence an "Affidavit," dated June 15, prepared by Randle for the hearing. It states that 47 permanent replacements had been hired, of whom "several have indicated that they have no desire to be represented by the union," naming 6 who "indicated their disinterest in the union or were the victims of union violence"; that 46 strikers crossed the picket line and were reinstated, of whom 19 named employees informed the Respondent they had resigned from the Union, and some indicated others who were reinstated had also resigned; and that 10 named strikers had formally resigned from theirjobs with the Respondent. It also states that "at least" five strikers would not be reinstated because of "serious misconduct during the strike," naming Kelleher, Stewart, Bonilla, Pujol, and Sohlin. Randle first testified he would have to look at the files to name the five involved, then that he could recall four, naming Bonilla, Stewart, Pujol, and Lucuyer. Randle stated in his testimony and affidavit that none would be reinstated because of the misconduct, then testified Lecuyer had returned to work and was still employed. He also testified none had as of June 7 been convicted of the conduct charged by the Respondent. Randle, who states in the affidavit that Redford had said "that he had information . . . that 'somewhere between 509% to 25% of the strikers were not coming back-they had just gone off,' " testified that this was a factor in his doubting the Union's majority. The affidavit also states that 10, not named, have requested reinstatement and were placed on a preferential hiring list; and that, because of economic considerations including the reduction in county calls, the Respondent was fully staffed, and new employees or strikers would be added only "on an occasional and infrequent basis." The Respondent operates both private ambulance service and a service under contract with the county. Randle testified that, when the strike began, the county suspended the contract and provided that fire chiefs would implement the service when the Respondent was inade- 548 RANDLE-EASTERN AMBULANCE SERVICE quately staffed to handle it, and that there was a sharp decrease in the Respondent's business during April and May. Randle also testified that he requested resumption of the contract in early May, and that he was at the county meeting on June 3 when resumption of the contract was approved. C. The Provenzano Interview Turek, who was employed by the Respondent as an ambulance attendant for about 8 years, went on strike on March 31, and had obtained another job prior to the hearing. He testified that he and two other strikers, Duffe and Haney, met as they were going to Provenzano's office on about June 3 to ask for reemployment; that Provenzano used to do the hiring but Turek did not know if he was doing it at that time; that Provenzano said they had to take a polygraph test, were expected to resign from the Union, would be recommended by him for reemployment, and would be called; and that he responded that he was "aware about the Polygraph and resigning from the Union." He denied on cross-examination that Provenzano was asked if they had to resign from the Union and said he did not know, and that Provenzano said they had to speak to Randle or O'Conner about this. Turek also testified on cross-examination that O'Conner later got in touch with him; that he raised the subject with O'Conner of resigning from the Union, and asked if this was still required; that O'Conner responded, "I didn't say it"; and that when he said Provenzano told him this, O'Conner merely repeat- ed,"I didn't say it," but never expressly answered whether Turek could stay in the Union or had to resign. Turek denied that O'Conner said it was entirely up to Turek what organizations to belong to, or said he and Randle handled these matters and Provenzano could not answer for them. Turek admitted he was not aware of any other employee who was told by the Respondent he had to resign from the Union. Haney, who was an ambulance driver for the Respon- dent about 5 or 6 years, testified, as a witness for the Respondent, that he was one of the three strikers who went to Provenzano's office in early June.6 Haney testified that Provenzano said they had to see Randle or O'Conner and had to take a lie detector test, but that there was no mention of the Union or resigning. He also testified that he knew of none of those previously reinstated who was required to resign from the Union. Haney also testified that he was rehired about June 15; that he received a message that Randle called him the same day as the talk with Provenzano; that he called back and was told to come in; that he did so and saw Randle and O'Conner; that Randle said there were no hard feelings about the strike, Haney had a good record and could come back to work, and he was glad to have Haney back; that Randle said nothing about resigning from the Union; that he went back to work the next day; and that he was still a member of the Union as were some of the other strikers reinstated before and after he was. Provenzano testified that he has been in charge of the Respondent's ambulance service operations since 1961; that his functions had included being in charge of hiring personnel, of equipment, and of crew scheduling; and that, after the strike began, he continued to be in charge of hiring new employees, but was directed to refer to Randle or O'Conner any strikers seeking to return to work, and did so. He also testified that "many" strikers spoke to him about reinstatement but he could not recall the dates or the names except one, Ferguson, he met outside the building "Maybe" 5 or 6 weeks after the strike began; that "There was numerous people who had requested on the tele- phone"; that "Very few people came to see me" and, at another point, that "No one came into my office specifical- ly"; and that he recalled the three strikers requesting reinstatement on about June 3 as they were the only ones who came to the office to do so. He testified that Duffe came in first alone and asked what he had to do to get back to work, and he told Duffe to leave "his name and phone number" which he would give to Randle or O'Conner; that Haney and Turek joined them and asked to get their jobs back; and that he told them he had their telephone numbers and would give them to Randle. On cross- examination, however, Provenzano testified that Duffe talked about fishing, and reinstatement was not mentioned while they were alone; that he thought the other two "did indicate that they would like to come back to work" but Duffe, while the other two were present, "said 'we,' meaning plural, 'would like to know what do we have to do in order to come back to work' "; that he stated once the same answer as to all three; and that all three gave him their telephone numbers and he wrote them down, but did not give him their names, which he had. Provenzano also testified that nothing was said in this interview about a polygraph test, and that he was certain there was no mention of the Union or of resignations. Asked by counsel for the Respondent whether he recalled any striker seeking reinstatement who asked "whether resignation from the union was a condition of employ- ment," Provenzano answered, "Oh, yes, sir. There was a few. .... I don't recollect their names, but there had been a few inquiries made by personnel.... I told them I didn't know; that they would have to take this conversa- tion up with either Mr. Randle or Mr. O'Conner." On cross-examination, however, the following colloquy took place: Q. And who else do you recall that came to see you in your office and said, "I would like to go back to work"? A. No one came into my office specifically. Q. Well, okay. You said, in direct testimony, and stop me if I'm wrong, a few strikers inquired about whether they had to resign from the union. A. Yes sir. Q. Okay. I ask you who they are. Tell me one name, and tell me where the inquiry took place. Like Ferguson, for instance, did he inquire about resigna- tion? I The third. Duffe, was not called as a witness. 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No. He just wanted to know what he had to do to come back to work. Q. Okay. He didn't ask whether he had to resign from the union. A. Nobody has asked me that. Q. Well, you said a few strikers inquired about resigning from the union. You testified on direct testimony. Don't you recall that? A. But no one, sir, directly come into my office to ask me this. Q. Okay. Forget about the office. Anyplace, Mr. Provenzano, any conversation you had with any striker. Tell me about any conversation where the striker said A. (Interposing) There were a few indications, a few cases of employees who had returned back to work, who are back working, had asked, and I told them they would have to discuss this with Mr. O'Conner or Mr. Randle. I have had no conversations with anybody other than that. Q. All right. There were employees, then, that asked you if they had to resign from the union. A. Yes, sir. Q. That's clear. A. Mm-hmm. Q. Okay. And your answer to them was? A. To either speak to Mr. O'Conner or Mr. Randle. Q. You also said that you didn't know whether they have to resign or not. Isn't that a fact? A. That is correct. Q. You said, "I don't know." A. I don't know. O'Conner testified that Provenzano told him Turek requested reinstatement; he got in touch with Turek in late June or early July through Duffe, who delivered the message for him; and their conversation was as follows: I told Turek that I understood that he wanted to come back to work. I asked him what his intentions were. He didn't respond to that, but he began asking me questions about the work schedule and where he would be assigned. I told him I didn't have the schedule in front of me, I didn't know, but he would be assigned to whatever position was vacant. He then made the statement to the effect, "I guess I'll have to quit the union." I asked him who had told him that. He said that several days ago he had talked to Provenzano, and Provenzano had implied to him that he would have to. I told Turek that he could take it straight from me that it didn't make any difference what organization he belonged to, and that I was only interested in filling an ambulance service position. Turek then said that he would have to discuss the matter with his wife, and I asked him to call me back. O'Conner testified further that he called Duffe a few days after calling Turek; that Duffe said he was not interested in coming back because of the travel distance and the work schedule; that Duffe said nothing about having to resign from the Union; and that neither he nor any other official of the Respondent said anything about this to Duffe. As noted above, Randle testified that it was never company policy to require returning strikers to resign from the Union, and that he never inquired if they had done so. He did not testify as to any instructions in this regard given to Provenzano or other supervisors. In fact, although Provenzano testified that he continued to hire new employees after the strike and referred only returning strikers to Randle or O'Conner, and O'Conner testified that Provenzano referred to him or to Randle strikers who were seeking reinstatement, Randle testified that he and O'Conner "handled . .. any strikers who wanted to return to work, any replacements that had to be hired," and that Provenzano was not responsible for this after commence- ment of the strike. D. Contentions of the Parties The General Counsel maintained in his closing argument that the Respondent bargained in good faith from the first negotiation session on February 2 through the session on March 29, when the parties reached tentative agreement on a new contract, subject to ratification by the union membership; that the membership, in disregard of the union committee's recommendations, rejected the agree- ment and voted to go on strike; and that the Respondent resumed good-faith bargaining on April 8, about a week after the strike began. The General Counsel also contended that, at the next negotiation session on April 22, the Respondent withdrew all proposals and agreements then on the bargaining table, economic and noneconomic, and that the Respondent, after several more negotiation sessions, on June I submitted new proposals which in some respects offered the Union less than was in the tentative agreement and in the expired contract. These proposals provided for a broader management rights clause than the parties previously agreed on, for seniority upon rehire to date from the rehire rather than from the original hire as in the expired contract, and for annual 5-cent wage increases instead of 6-cent increases every 6 months as in the expired contract, and Respondent added a provision that neither the Union nor the employees it represents would "honor any picket sign or line at any location." The General Counsel argued that this was an offer the Union could not accept, and that the Respondent's conduct dating from April 22, when it withdrew all proposals and agreements, constituted bad-faith bargaining, in violation of Section 8(a)(5) and (1) of the Act. The General Counsel also argued that the copies of resignation letters about which Randle testified indicated only withdrawal from membership, not disavowal of union representation; that the Respondent's asserted good-faith doubt of the Union's continuing majority status was not warranted in all the circumstances of this case; that the Respondent, by withdrawing recognition and refusing, on and after June 7, to bargain with the Union, further violated Section 8(aX5) and (1) of the Act; and that an economic strike that began at midnight on March 31 was by the foregoing conduct prolonged and converted into an unfair labor practice strike. The General Counsel also argued that Provenzano told strikers applying for reinstate- ment, as Turek testified, they had to resign from the Union 550 RANDLE-EASTERN AMBULANCE SERVICE before they could be rehired, in violation of Section 8(aXl) of the Act. The Respondent urges in its brief that it had a right to withdraw its prestrike offers in the circumstances herein; that the package proposal it gave the Union on June I "reflected a withdrawal from pre-strike concessions and was basically a return to the old contract .. ."; that it did not before or after the strike engage in bad-faith bargain- ing; that at all times subsequent to June 1 it properly had a good-faith doubt that the Union represented a majority of its employees based on striker replacements, strikers who returned to work, copies of letters of resignation from the Union, resignations from employment with the Respon- dent, charges against some strikers of strike misconduct, and the Redford remark that 25-50 percent of the strikers would not return. The Respondent also argues that the evidence fails to establish that Provenzano told a striker he must resign from the Union to be reinstated, and that, assuming arguendo that the statement was made, it did not constitute a violation of Section 8(aX1), as O'Conner's repudiation and offer of a job to that striker nullified the statement. Concluding Findings (1) I1 found Provenzano, whose testimony is replete with inconsistencies and self-contradictions, an unreliable wit- ness and discredit his testimony. Turek impressed me as a more candid and straightforward witness than Haney. Accordingly, I find, based upon the demeanor of the witnesses and the evidence in its entirety, that Provenzano, on or about June 3, told striking employees they had to resign from membership in the Union before they could return to work for the Respondent, and that the Respon- dent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(aX)(I) of the Act. I find further that O'Conner's equivocal responses to Turek on the telephone did not, as the Respondent contends in its brief, constitute an adequate repudiation of Provenzano's coercive statement. (2) Roberts' testimony was uncontradicted as to what occurred in the negotiation sessions when the Respondent was represented by Randle and O'Conner, and much of his testimony as to the sessions after Muller became the Respondent's spokesman was corroborated by Muller. Where their testimony is in conflict, I found Roberts' testimony based on his recollection more candid and reliable than Muller's testimony based on his notes,7 and, therefore, in those instances credit Roberts. The record shows that on March 26 the parties negotiated and reached agreement on a new contract subject to membership ratification. The union negotiating committee unanimously recommended ratification, but the membership nevertheless refused to ratify and voted to strike at midnight on March 31. The parties thereafter continued to meet and negotiate. On April 22, however, the Respondent admittedly withdrew all its offers that were on 7 See John Zink Company, 196 NLRB 942. 946 (1972); Capital Rubber & Specialtry Co., Inc., 198 NLRB 260(1972). s Columbia Tribune Publishing Co., 201 NLRB 538, 552 (1973); The Gerstenslager Company. 202 NLRB 218 (1973); The General Athletic Products Compan.v, 227 NLRB 1565 (1977). the table and informed the Union it would submit a complete new proposal, although, as Muller testified, the Union objected to this withdrawal and offered to accept the Respondent's contract proposal made on March 26, before the strike. At a negotiation session on June 1, the Respondent presented its new proposals, which set forth a broader management rights clause than one to which the parties had agreed, provided for a wage progression lower than that contained in the expired contract, and contained no work schedule although this was the principal issue in the negotiations. The Respondent's representatives main- tained on June I that they were not able to answer the Union's questions as to what the work schedule would be, or even as to what it was at that time. Further, as Muller testified, the Union's position on June 2, conveyed through the mediator, included an offer to waive any wage increase if the progression of 6 cents every 6 months, as provided in the expired contract, was restored. The Respondent maintains that it had a right to withdraw its prior proposals after the membership refused to ratify the tentative agreement and went on strike. This action did not follow immediately after the strike, however, and was not shown to be necessary in order to continue the Respondent's operations during the strike. It occurred when negotiations, resumed after the strike with the aid of a mediator, were making progress toward reaching an agreement and ending the strike. And it was followed by the Respondent's presentation of proposals considerably less advantageous to the membership than those offered by the Respondent prior to the strike. I am convinced, and find, in all the relevant circumstances, that the Respondent on April 22 withdrew all offers on the table and, on June 1, substituted proposals less beneficial to the employees than those in the old contract and in the tentative agreement, in order to prevent resolution of the contract issues and to undermine the Union's status as bargaining representative. Accordingly, I find, on the evidence in its entirety, that the Respondent thereby, on April 22 and June 1, failed and refused to bargain in good faith, in violation of Section 8(a) (5) and (1) of the Act.8 (3) The Respondent maintains that it was warranted on June 7 in withdrawing recognition and refusing to negotiate further because of its reasonable doubt that the Union continued to represent a majority of its employees. It is a well-established Board principle that an incumbent union enjoys a presumption of continuing majority status, which may be rebutted; that an employer's refusal to bargain with such union based on an assertion of a good- faith doubt of majority status must be supported by evidence establishing that the union has in fact lost its majority status or that the employer has sufficient objective bases for reasonably doubting the union's continuing majority status;9 and that "the employer bears the burden of proving the union's loss of majority and the presumption 9 James W Whitfield d/b/a Cutten Supermarket, 220 NLRB 507 (1975); Tahoe Nugget, Inc. d/b/a Jim Kelley5 Tahoe Nugget, 227 NLRB 357 (1976). 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of majority must be rebutted by clear, cogent, and convincing evidence."'0 I find, therefore, that there is in this case a presumption of continuing majority status on which the Union, as the certified and, for years, the contractual representative of the Respondent's employees, could rely, and that the Respondent, to rebut this presumption properly, must show either that the Union in fact no longer enjoys majority status or that its refusal to bargain was predicated on a reasonably grounded doubt as to the Union's continuing majority status. This I find, on the entire record, the Respondent failed to do. The Respondent presented Randle's testimony and affidavit as the evidence in this matter. I found Randle, however, a vague, hesitant, and unconvincing witness, and his testimony and affidavit were in many respects inconsis- tent. Moreover, the record shows that some employees were still on strike. There is a presumption that strikers retain their employee status1" and that strikers who were union members continue to support the Union.' 2 In addition, the record shows that some of the strikers who returned to work continued their membership in the Union. The Respondent points to the fact that a number of strikers crossed the picket line to return to work and that a number of new employees were hired. The Board holds, however, that "it is a well-settled principle that new employees are presumed to support the union in the same ratio as those whom they have replaced. Furthermore, there is no presumption that an employee has rejected the union as collective-bargaining representative when the employee elects not to support the strike." 13 Randle's testimony and affidavit refer to employees who will not be reinstated because of strike misconduct, contain variances as to the named individuals involved, and indicate one had been reinstated. Moreover, the Respon- dent presented no evidence as to the nature or circum- stances of this alleged misconduct,' 4 and admitted none had been convicted of such conduct as of June 7. Randle claimed that, of 47 permanent replacements hired, 19 named individuals volunteered that they resigned from the Union, some said others had also, and a number sent him copies of their letters of resignation from the Union. None of these letters was produced at the hearing. Moreover, the evidence does not establish whether these individuals renounced their desire for collective representa- tion or decided to be free riders, accepting collective representation without paying dues.15 Although Randle's affidavit asserts that, of the 47 replacements, "several have indicated they have no desire to be represented by the union," it names only 6 individuals who "indicated their disinterest in the union or were the victims of union violence." Furthermore, although Randle testified that the copies of union resignation letters came in at various times over a period of months, the Respondent never discussed '° N.L.R.B. v. Vegas Vic, Inc., d/b/a Pioneer Club, 546 F.2d 828 (C.A. 9, 1976); Gulfmont Hotel Company, 147 NLRB 997, 1001 (1964); Jim Kelley's Tahoe Nugget, supra. " The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969); Bralco Metals, Inc., 227 NLRB 973 (1977). 12 Cutten Supermarket, supra. 13 Cutten Supermarket, supra at 509; King Radio Corporation, 208 NLRB 578, 583 (1974): Surface Industries, Inc., 224 NLRB 155 (1976). the letters, or any other factors on which it relies to show loss of majority, with the Union until June 7, when it abruptly withdrew recognition and cut off any further contract negotiations. I do not credit Redford's denial and find, on all the evidence, that Redford made a remark about a number of strikers not returning to work for the Respondent. Muller testified that the remark, as he reported to Randle, referred to about "Fifty to 25 or 20 T%." It is apparent that these figures were given as an estimate, in support of the Union's argument that those still on strike should be reinstated on the basis of seniority as of June 1, after the Respondent had argued that the reinstatement issue had to be settled before continuing the discussion of contract issues. Furthermore, there is no evidence of the extent to which the strikers referred to in the Redford estimate duplicated individuals included in Randle's figures. Finally, the record does not show how many union members decided to resign their membership as a result of the Respondent's conduct found to be in violation of Section 8(a) (1) and (5) of the Act. In conclusion, therefore, I find, based upon the entire record, that the evidence adduced by the Respondent as to the union status of strikers and replacements does not rebut the presumption of the Union's continuing majority status, does not warrant a reasonable belief that such status had been lost, and does not provide a sufficient basis to justify the abrupt termination of negotiations and refusal to bargain.'6 Accordingly, I find that the Respondent, by withdrawing recognition and refusing to negotiate further with the Union on and after June 7, has failed and refused to bargain with the Union in good faith, in violation of Section 8(a)(5) and (1) of the Act. (4) When the union committee presented its tentative agreement with the Respondent and recommended ratifi- cation, the membership rejected the agreement and voted to strike. The strike that began at midnight on March 31 in an attempt to obtain more advantageous contract terms was, as the General Counsel concedes, an economic strike. I have found above, however, that the Respondent on April 22 withdrew all its prior contract proposals, over the Union's objection, and replaced them on June I with proposals reducing benefits previously offered or available, including a reduction in the wage progression rates provided in the expired contract; on June 3 told strikers they had to resign from union membership to be reem- ployed; and on June 7 withdrew recognition and refused to bargain further with the Union because of an asserted doubt, found not warranted by the evidence, of the Union's continuing majority status, in violation of Section 8(a)(I) and (5) of the Act. I find that these unfair labor practices broadened the issues between the parties, and showed that the Respon- dent was attempting not to resolve these issues but to preclude reaching final agreement and to undermine the 14 See Moore Business Forms, 224 NLRB 393 (1976), 226 NLRB 688 (1976). '5 The court of appeals stated in N.LRB. v. Vegas Vic, supra at 829, "The fact that 14 of 24 members of the bargaining unit were not members of the union does not mean that the union does not have their support." 16 King Radio Corporation, supra, Pride Refining, Inc., 224 NLRB 1353 (1976). 552 RANDLE-EASTERN AMBULANCE SERVICE Union's representative status. I find further that the Respondent's conduct on June 7 in withdrawing recogni- tion and refusing to negotiate further with the Union "impeded successful negotiations and . . . prevented even the possibility of the parties reaching agreement," that this conduct was by its nature a factor in prolonging the strike, and, therefore, that it converted the economic strike on and after June 7 into an unfair labor practice strike.' 7 I shall therefore recommend that the Respondent be ordered, upon application,1 s to reinstate the unfair labor practice strikers, who were not permanently replaced during the economic strike prior to June 7, when the Respondent unlawfully withdrew recognition and refused to negotiate further with the Union.'9 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(aX l) and (5) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any like or related manner infringing upon its employee's Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully refused to bargain with the Union, which had been the certified and contractual representative of its employees for a number of years. I shall therefore recommend that it be ordered to bargain collectively with the Union, upon request, concern- ing rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. I have also found that an economic strike was prolonged and converted into an unfair labor practice strike on June 7, 1976, by the Respondent's conduct in violation of the Act. I shall therefore recommend that the Respondent be ordered to offer, upon application, to all the striking employees who were not permanently replaced while economic strikers, reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replace- ments hired on or after June 7, 1976, when the economic strike was prolonged and converted into an unfair labor practice strike, and to make each of these striking employees whole for any loss of earnings they may suffer 17 Hawaii Meat Company, Limited, 139 NLRB 966 (1962). i' Marathon-Clark Cooperative Dairy Association, 137 NLRB 882 (1962). 19 See Southern Beverage Companv, Inc.. 171 NLRB 926; Moore Business Forms, supra. 20 Bush Hog, Inc.. 176 NLRB 815 (1969), Davis & Hemphill, Inc.. 177 NLRB 282 (1969). by reason of the Respondent's failure, if any, to reinstate them within 5 days after the date on which they apply for reinstatement to the date of the Respondent's offer of reinstatement, by payment to each of them of a sum of money equal to the amount he normally would have earned during said period, less his net earnings, if any, during such period,20 with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolwvorth Company, 90 NLRB 289, (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Randle-Eastern Ambulance Ser- vice, Inc., and Randle Medical Sales & Rentals, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Transport Workers Union of America, Local 500, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By telling striking employees applying for reinstate- ment they had to resign from membership in the Union before they could return to work for the Respondent, and by other conduct interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By refusing to bargain collectively in good faith with the above-named Union on April 22, June 1, and June 7, 1976, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER21 The Respondent, Randle-Eastern Ambulance Service, Inc., and Randle Medical Sales & Rentals, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling striking employees applying for reinstatement they have to resign from membership in Transport Workers Union of America, Local 500, AFL-CIO, before they can return to work for the Respondent, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 21 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. 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Refusing to bargain collectively with the above- named Union as the exclusive collective-bargaining repre- sentative of its employees in the unit found appropriate. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon application, offer to all the employees engaged in an unfair labor practice strike, who were not permanent- ly replaced while economic strikers, reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements hired on or after June 7, 1976, when the economic strike was prolonged and converted into an unfair labor practice strike. (b) Make each of these striking employees whole for any loss of earnings they may suffer by reason of the Respondent's failure, if any, to reinstate them, upon application, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Upon request, bargain collectively with the above- named Union as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of 22 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 read "Posted Pursuant employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All ambulance drivers and ambulance attendants, all mechanics (regular and part-time), all rental and service employees, all medical examiner drivers and attendants, and all hearse and limousine drivers, at the Respondent's Miami, Florida, location, excluding all office clerical employees, guards, professional employ- ees, chief mechanic, dispatchers, and all supervisors as defined in the Act. (d) Post at its place of business in Miami, Florida, copies of the attached notice marked "Appendix." 2 2 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 554