Cowles Publishing Co.

COWLES PUBLISHING CO. Cowles Publishing Company and Service Employees International Union, Local 6, AFL-CIO. Cases 19-CA-14273 and 19-CA-14302 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 7 April 1983 Administrative Law Judge Joan Wieder issued the attached decision. The Respond- ent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions, as modified herein, and to adopt the recommended Order. We adopt the conclusion of the judge that the Respondent violated Section 8(a)(5) and (1) of the Act in refusing to execute a contract with the Union or to furnish the Union with information concerning unit employees. We affirm the judge's determination that the factors set forth by the Re- spondent's attorney in his 4 December 1981 letter to the union business representative constituted the only bases upon which the Respondent relied when it decided to withdraw recognition, and that these factors are insufficient to justify the withdrawal of recognition. Hence, regarding the 11 points ad- vanced by the Respondent before the judge, we agree with the judge that weight can be accorded only to those arguments which can be encom- passed within the rationale expressed by the Re- spondent in its 4 December letter. We agree with the judge's findings with respect to those argu- ments, with the following modifications. The judge found, and we agree, that the lack of contact between the Union and the Respondent from April to November 1981 is inadequate to con- stitute an objective basis for doubting the Union's i The Respondent has excepted to some of the fudge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In her summary of the Respondent's asserted grounds for its reasonable doubt of the Union's majority status, the judge stated in point four of her "Analysis and Conclusions" "from December 1981 to April 1981 " It is obvious she meant to say from December 1980 to April 1981. In rejecting the Respondent's point 5 concerning the absence of union representation from the Respondent's premises during 1981, the judge er- roneously stated that the Union was denied access to the Respondent's property In fact the Union was denied only the right to hold meetings there 903 continued majority status. In so concluding we do not rely on the turnover of union representatives. In fact, only once during this period-in October 1981-did the union representative change. More- over, there is no showing that any employee griev- ances remained unresolved. Further, the Respond- ent was apparently aware of union activity with re- spect to unit employees during this period. Thus, in its 4 December 1981 letter to the Union, the Re- spondent stated that it "has heard complaints from its employees that the Union does not respond to phone calls and letters in a timely fashion and sometimes not at all." Implicit in that statement is an admission by the Respondent that it knew that the Union had responded to employee complaints, although these responses were not made in a timely fashion. As noted by the judge, the Union's 6 April 1981 letter indicates its continuing desire to repre- sent the employees. We observe also that the Union was present on the premises throughout the material period through its designated representa- tive, Union Steward Smithson. That the Union did not seek additional bargain- ing during the above period is explained by the un- controverted testimony that the major point of contention between the parties was the union-secu- rity clause. Once the Respondent implemented the agreed-upon terms and conditions of employment, and the Union abandoned its efforts to obtain a union-security clause, the employees were already enjoying the benefit of all the terms and conditions of importance to the parties. We find no merit to our dissenting colleague's contention that Union Representative Mattsen's statement that a contract without a union-security clause was "not worth the paper it was written on" supports a reasonable belief on the Respondent's part that, after the Union failed to obtain such a clause, it decided to abandon the unit. Mattsen's statement was uttered at the bargaining table during the give-and-take of negotiations. The Union essentially agreed with the Respondent on the other terms and conditions under discussion. In these circumstances, the Respondent was not enti- tled to take the statement at face value.2 Chairman Dotson also cites the statement of Union Steward Smithson, as relayed by Respond- ent Assistant Business Manager Crowley to its vice 2 Even if taken at face value, it does not follow that such a statement showed an intent to abandon the unit, or that it was the equivalent in meaning to an explicit statement of abandonment At most, Mattsen's statement demonstrated his vexation over the Respondent's refusal to agree to the continuation of union-security provisions in the contract under negotiation Of far greater significance to the issue of abandonment is that the parties reached agreement on all other contractual terms and the Union eventually submitted a written agreement for the Respondent's approval that did not include the disputed provisions 280 NLRB No. 105 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president Fairchild ("there was no harm in trying to better himself when he felt there was no union backing him"), in support of the Respondent's rea- sonable doubt. Smithson uttered this remark while approaching the Respondent's officials in an effort to secure a pay raise for himself. In context, we find that the statement was merely an announce- ment that Smithson was handling his negotiations for himself. While this indicated that he did not be- lieve the Union would support his effort to secure benefits for himself alone, it did not suggest that he would be averse to sharing in any benefits that the Union could obtain for the unit as a whole or that he would repudiate the Union's "backing" for such benefits. Further, as the judge noted, Smithson's statement indicated nothing concerning the senti- ments of other employees. Nor can we agree with our dissenting colleague's observation that, in submitting a signed "agree- ment" at variance with the Respondent's proposal, the Union capitulated on its demands in an attempt to secure a signed contract.3 As we have noted, it is undisputed that the union-security issue repre- sented the major point of contention between the parties. Thus, the Union conceded on only one item, having achieved a mutually satisfactory reso- lution of the other issues. This factor distinguishes the present case from Viking Lithographers, 184 NLRB 139 (1970), and Southern Wipers, 192 NLRB 816 (1971), cited by the Chairman. The Union capi- tulated in Viking Lithographers on a large number of important issues including issues as to which no final offer had been made; and it remained inactive in Southern Wipers despite the fact that bargaining between the parties had left numerous significant issues unresolved. In addition, as the dissent ac- knowledges, the degree of employee turnover in Viking Lithographers and Southern Wipers greatly exceeds the turnover in this case. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Cowles Publishing Company, Spokane, Washington, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. 8 Upon being informed by the Respondent that there were variances between the submitted contract and the Respondent's proposal , the Union promptly requested that the Respondent forward the correct language. It attributed the "variances" to its having incomplete notes Subsequently, after receiving no reply from the Respondent, the Union submitted revi- sions of the contract sections in question in a further attempt to reflect the parties' contractual accord CHAIRMAN DOTSON, dissenting. Contrary to my colleagues I would find that the Respondent was privileged to withdraw recogni- tion from the Union because it entertained a rea- sonable good-faith doubt of the Union's continued majority status based on sufficient objective consid- erations. I would therefore dismiss the complaint in its entirety. As noted by the judge the essential facts are not in dispute. Thus the record reveals that in early October 1980 the Respondent and the Union com- menced negotiations for a collective-bargaining agreement to succeed an agreement expiring on 1 November 1980. After nine bargaining sessions the parties reached impasse on 16 December 1980 and the Respondent implemented its final proposal.' Although Union Business Representative Bill Matt- sen informed the Respondent shortly thereafter that the Union would seek the assistance of a Fed- eral mediator in an attempt to break the impasse, the Respondent heard nothing from the Union for the next 4 months. The Respondent next heard from the Union by letter of 6 April 19812 when the Union asked the Respondent to supply it with a copy of the Re- spondent's last and final contract proposal. On 17 April the Respondent complied with this request by resubmitting its 16 December 1980 proposal. For the next 7 months, the Respondent again heard nothing from the Union. To all appearances, the Union engaged in no representation functions whatsoever during this period. The union business representative never visited the Respondent's plant. Employee Isobel Olsen and Assistant Business Manager John Crowley testified without contradic- tion that no union notices were posted on the Re- spondent's bulletin board (although the board was made available) at all during 1981. Union Steward William Smithson informed Crowley at some point in 1981 that henceforth Smithson would represent himself concerning a wage increase because, as Crowley reported to Respondent Vice President Fairchild, "there was no harm in trying to better himself when he felt there was no union backing him." Meanwhile 10 of the 32 employees left the Re- spondent's employ. On 25 November 1981 the Re- spondent finally received further word from the Union. Thus by letter of that date the Union trans- mitted signed copies of what it asserted to be "the agreement as negotiated" and asked the Respond- ent to sign and return copies. By letter of 4 De- cember the Respondent replied that the proposed ' Retention of a union-security provision was the issue underlying the impasse 2 All dates hereinafter are in 1981 unless noted otherwise COWLES PUBLISHING CO agreement sent by the Union did not accurately re- flect the Respondent's final proposals and that, in any event, the Respondent believed the Union had abandoned the bargaining unit and did not repre- sent a majority of the employees. The foregoing chronology thus reveals that by late November 7 months had elapsed since the Union last contacted the Respondent; the Union engaged in no visible representation functions at the plant; the union steward informed the Respond- ent that the Union did not represent him in his own wage negotiations; the bargaining unit experienced considerable turnover in unit employees; and, in an attempt to secure a signed contract, the Union ac- ceded to an "agreement" which differed in several respects from the Respondent's position. This case is factually similar to Viking Lithogra- phers, 184 NLRB 139 (1970), and Southern Wipers, 192 NLRB 816 (1971). In Viking Lithographers, in a context free of unfair labor practices, the employer heard nothing from the union for almost 4 months from the preceding bargaining session. During this hiatus the union was wholly inactive in the plant and several employees expressed to management dissatisfaction with the union. Abruptly, the union capitulated on its contract demands and accepted what it claimed was the employer's "final" offer. In these circumstances, the Board concluded that the employer had an objective basis providing reasona- ble grounds to believe that the union had lost its majority status. In Southern Wipers, in a context free of unfair labor practices, the employer heard nothing from the union concerning formal bargain- ing negotiations for almost 7 months. During this hiatus the union was wholly inactive in the plant and several employees indicated to management that they were glad the union had left. As in Viking Lithographers the Board concluded the em- ployer was privileged to withdraw recognition from the union. I am in full agreement with the conclusions reached in Lithographers and Southern Wipers and would on the basis of their sound guid- ance reach the same result in the instant proceed- ing.4 3 It is undisputed that art I, sec 6, 7, and 8 of the signed "agreement" mailed by the Union on 25 November inaccurately represented the Re- spondent's final proposal 4 In certain respects the Respondent herein possessed even greater ob- jective considerations than the employers in Viking Lithographers and Southern Wipers Thus, the virtual I-year hiatus between the termination of negotiations in December 1980 and the Union's belated reappearance in late November 1981 is significantly longer than in either Viking Lithog- raphers or Southern Wipers Further, in neither of those cases did the union's steward notify management, as here, that he was conducting his own personal wage negotiations without union support Although the rate of employee turnover in Viking Lithographers and Southern Wipers was greater than in the instant proceeding, I would not find this factor diapositive in view of the comparative overall circumstances which oth- erwise are strikingly similar to the instant case 905 In support of their finding that the Respondent possessed insufficient objective considerations to doubt the Union's continued majority status, my colleagues in the majority assert that the Union's lack of contact with the Respondent for many months regarding negotiations was not significant. Thus the majority speculates that because only the union-security issue separated the parties at impasse the Union had no need to seek additional bargain- ing during the hiatus. Contrary to my colleagues I do not find such a rationale persuasive. In deter- mining whether the Respondent had sufficient ob- jective considerations to doubt the Union's majori- ty status, the critical inquiry is not the Union's sub- jective motivation underlying its disappearance. Rather, the critical inquiry is the objective consid- erations confronting the Respondent.5 Here, the Respondent was well aware that for all practical purposes the Union had left the scene entirely and had not sought negotiations to break the bargaining impasse for 7 months. In a context free of unfair labor practices, the on-site steward explicitly an- nounced the Union's lack of support for him in his wage demands,6 and 10 of the 32 original unit em- ployees left the bargaining unit. To require the Re- spondent to continue recognition of the Union upon the Union's belated reappearance with a signed, but flawed, "agreement" in hand in these circumstances is to ignore the realities as the Re- spondent observed them; namely, a recognitional demand made, from all reasonable appearances, by a union which had long abandoned the bargaining unit.7 Contrary to my colleagues I would not 5 More notable than the Union 's motive for failing to seek further bar- gaining is evidence that during the negotiations in 1980 Union Business Representative Mattsen stated expressly to the Respondent that without a union-security clause any contract was "not worth the paper it was writ- ten on " In these circumstances, the Respondent had ample grounds to believe that, because the Union had not persuaded the Respondent to retain a union-security provision, the Union had decided to abandon the bargaining unit rather than continue to represent a unit having no dues- enforcement mechanism 6 The majority adopts the judge's finding that Steward Smithson's statements of disavowal were not significant because they were nothing more than "the mere expression of one employee 's dissatisfaction " At the same time the majority relies on Smithson's physical presence at the plant during the prolonged hiatus as evidence that "the Union was present on the premises " What my colleagues fail to give proper weight to is the fact that Smithson, the Union's "designated representative," expressly stated to management that the Union was not representing him in his wage demands Such statement, emanating from the Union's "designated representative," is entitled to far more weight than the majority accords it 7 In support of its finding that the Union maintained an interest in the bargaining unit, the majority notes that the Respondent was aware of complaints from employees that the Union did not respond to phone calls and letters in a timely fashion In my view, the Respondent's awareness of the Union's belated responses is insufficient to rebut the Respondent's successful showing of a reasonable doubt of the Union' s continuing ma- jority In light of the Union 's lengthy disappearance from contract nego- tiations, Smithson's admission, and the other points cited above, I con- clude that the Respondent 's reasonable doubt continued despite its knowledge of the Union's occasional responses to its members 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compel the Respondent to continue recognition in such circumstances. Accordingly, I dissent. Patrick F. Dunham, Esq., for the General Counsel. Duane M. Swinton and E. Glenn Harmon, Esqs. (Wither- spoon, Kelley, Davenport & Toole, P.S.), of Spokane, Washington, for the Respondent. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge . This case was tried at Spokane, Washington, on December 7, 1982.1 The charge in Case 19-CA-14273 was filed on January 25, 1982, and the charge in Case 19-CA-14302 was filed on February 8, 1982, by Service Employees International Union, Local 6, AFL-CIO (Union or Charging Party). An order consolidating cases, consoli- dated complaint, and notice of hearing was issued March 5, 1982, alleging that Cowles Publishing Company (Re- spondent or Company), since about December 4 failed and refused to execute a written contract embodying an agreement reached about November 25; and since about February 1, 1982, Respondent has failed and refused to furnish certain relevant information requested by the Union in violation of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act. Respondent denies committing any violations of the Act, asserting that it bargained in good -faith, but claims that the Union abandoned the unit and it developed a reasonably held good-faith belief that the Union does not represent a majority of the employees in the unit. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered , were timely filed by Respondent and the General Counsel. On the entire record of the case , and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits that it is a Washington State corpo- ration which publishes daily newspapers of general circu- lation in Spokane, Washington. It further admits that during the past 12 months, in the course and conduct of its business, it had gross sales of goods and services ex- ceeding $500,000; sold and shipped goods or provided services to customers in interstate commerce of a total value in excess of $50,000; and purchased and caused to be delivered to its facilities within the State of Washing- ton goods and materials valued in excess of $50,000 from sources outside the State of Washington. Accordingly, Respondent admits, and I fmd, that it is an employer en- gaged in commerce and in a business affecting commerce i All dates are in 1981 unless otherwise indicated within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Many of the facts are undisputed. Publisher's Building Company and the Union had a collective-bargaining agreement effective from November 1, 1977, to Novem- ber 1, 1980.2 Respondent, on April 20, 1980, signed an agreement with the Union to become the successor em- ployer to Publisher's Building Company.3 Prior to the successorship agreement, the Publisher's Building Com- pany had the unit's work administered by an independent contractor, Goodale and Barbieri. The business manager of Respondent, Robert D. Fairchild, decided in 1980 to make those in the unit employees of the company, and the successor employer agreement was the implementa- tion of this decision. The unit was directly supervised by John Paul Crow- ley, who is assistant building manager. Crowley is assist- ed by James D. Olinger, an assistant foreman. The Union had several business representatives during the time here pertinent: from approximately March 1978 until August 1980, Richard MacLeod; from August 1980 until the end of September 1981, Bill Mattsen; and from the beginning of October 1981 until the end of July 1982, Laurie MacLeod, the wife of Richard MacLeod.4 Around the same time as Richard MacLeod left the Union's employ, William Smithson was elected shop steward. Smithson was shop steward for about a month when the Company and the Union commenced negotiations for a new con- tract. B. Negotiations Negotiations for a new contract commenced on Octo- ber 8, 1980. The union negotiating committee included Laurie MacLeod, Mattsen, and four employees.5 The chairman of the Company's negotiating committee was Fairchild.6 There were nine negotiating sessions. The 2 This agreement had a "typical" union-secunty clause 2 The unit, which the parties admit is appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act, in- cludes All employees of Respondent employed in servicing the Review- Chronical Building in the capacity of Janitor, elevator operator, wall washer or window washer, excluding office clerical employees, guards, supervisors as defined in the Act and all other employees. 4 Laurie MacLeod was employed by the Union from June 1, 1978, until the end of July 1982 She held a variety of jobs from receptionist to business representative 5 Ed Smithson, the only employee member of the negotiating commit- tee who appeared and testified, Harold Mouck, Lyman Johnson, and, oc- casionally, Mike Heins e The record is silent about the identity of any other members of the Company's negotiating committee, if any COWLES PUBLISHING CO. penultimate meeting was held on December 9, 1980. After this meeting, Fairchild told Mattsen that there would be no more meetings by any unions on company property. After the December 9 meeting, the Union con- ducted a ratification vote which was 17 to I to reject the Company's offer of December 9. A few days later, sever- al members requested another meeting to vote again. There is no showing that a second ratification meeting was held in 1980. The last negotiating session was held on December 16, 1980. The Company had submitted its last and final pro- posal on December 16, which was the same proposal later provided the Union in April 1981. The parties stipu- lated that an impasse was reached at this last meeting.? After impasse was reached on December 16, 1980, Fairchild told the union negotiators that the Company would post "terms and conditions of employment." Matt- sen, according to Fairchild,s replied that "he would like to call in mediation, and that he would contact the feder- al mediators." Fairchild replied, "Fine, you contact them, and we will agree to meet with you. But we will post the terms and conditions of employment." The "terms and conditions of employment" were posted around 7 p.m. that evening. Also, Respondent conducted two meetings9 for the affected employees to explain the Company's position regarding the impasse in negotia- tions. Fairchild prepared a written statement that he read to the employees. Fairchild indicated in this statement that the employees would no longer have to be members of the Union as a condition of employment. At the end of this statement, the employees cheered. Then an em- ployee named Cooney 1 ° asked if Fairchild meant "we don't have to pay dues any longer?" Fairchild replied, "Whether you belong to the union is between you and the union, but you don't have to pay dues to hold your job." The audience again broke into applause after this statement. Shortly after the posting of the "terms and conditions of employment," the Union filed a charge with the Board which resulted in Respondent modifying the "terms and conditions of employment." A complaint was never issued with reference to this charge.' 1 C. Postnegotiation Communications On April 6, 1981, the Union sent Fairchild the follow- ing letter: In order that we may schedule a ratification meet- ing for our unit at the Review, we are asking that you supply us your complete last and final contract 7 According to the uncontroverted testimony of Fairchild and Smith- son, the major point of contention was the Company's insistence on the elimination of the maintenance-of-membership clause 8 Mattsen did not appear and testify As noted above, Mattsen left the Union's employ in September 1981 9 One meeting for each shift worked by unit members The first meet- ing was held at 9 p in, December 16, and the second meeting was held at 7 am on December 17 10 Cooney did not appear and testify " There was also a charge filed on December 9, 1980, by the Union alleging that the Respondent was not bargaining in good faith This charge was withdrawn on February 18, 1981, on the advice of the Acting Regional Director for Region 19 907 offer. We would appreciate receiving this offer no later than April 17, 1981. According to Laurie MacLeod, the hiatus in communica- tions was caused by the Union awaiting finalization of the charge which was withdrawn February 18, 1981. Also, Mattsen, who had primary responsibility for con- ducting the negotiations, was occupied with out-of-state organizing activities. Fairchild indicated that as of April 6 he was willing to enter into the agreement with the Union if the Union came in and sat down with him then or within a short time thereafter. On April 17, Fairchild sent the Union the Company's December 16, 1980 pro- posal. On April 22, 1981, Mattsen and MacLeod wrote Smithson and other key union members as follows: We have requested and received a copy of the Spokesman Review's last and final offer. At this time, we are ready to call a meeting to bring the unit at the Review up to date on the result of our charges filed against the company regarding the union security clause. At this meeting, we will also have the ratification vote to accept or reject the last and final offer. We will need to meet with the Ne- gotiating Committee members prior to the meeting in order to discuss the offer and get your recom- mendation for the rest of the unit. Would you please give us a call so that we can set a meeting time for the committee prior to the ratification meeting. Smithson said he did not receive this missive but MacLeod testified that there were responses from others and that a meeting was scheduled. According to Laurie MacLeod, a ratification meeting was held about May 6. She did not attend this meeting. Mattsen, who attended the meeting, told her immediately thereafter that the contract had been accepted.' a Smith- son claims he never had an opportunity to vote in 1981 on the Company's proposal. Smithson did admit to re- ceiving some literature from the Union, but he disclaims receiving the April 22 letter or voting on the Company's December 16, 1980 offer. The Union, by Laurie MacLeod, next wrote the Com- pany on November 25, 1981, as follows: Dear Mr. Fairchild, According to our records, we do not have copies of a signed agreement on file for Cowle' s [sic] Publish- ing Company. Enclosed you will find three copies prepared for your signature. As you will note, they have already been signed by Marc Earls, SEIU Local 6's president. If these do not reflect the agreement as negotiated, please let me know. Otherwise, two signed copies should be returned to our office and one kept by you for your records. If you need more than one signed copy, please contact our office. 12 This evidence was proffered without objection 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to MacLeod, when she acceded to the posi- tion of business representative after Mattsen's departure on September 1, 1981,13 she started in October reorga- nizing and- reconstructing the Union's files, and noted that the contract with Cowles Publishing Company was not complete. She then tried to reconstruct the contract since Mattsen had disassembled the files. MacLeod then sent the reconstructed contract to the president of the Local, who resides in Seattle, Washington, and who usu- ally executes the contracts, for his signature. When she received the executed contracts from the president of the Local, she forwarded them to Fairchild. Fairchild had his attorney respond to Laurie MacLeod on December 4 as follows: Dear Ms. MacLeod: Mr. Robert D. Fairchild, Business Manager of Cowles Publishing Company, has sent me your letter of November 25, 1981, for my information and for legal advice. I am writing to you, with a copy to Mr. Fairchild, so you may both be advised of my analysis of the situation and the resulting legal consequences. Your union records are accurate. There is no signed contract between Cowles Publishing Compa- ny (hereafter the Company) and SEIU 6 (hereafter the Union). The reason for the lack of a contract between the Company and the Union is that an im- passe was reached at the bargaining table on Tues- day, December 16, 1980, at 3:43 P.M. At 7:00 P.M. that evening, Tuesday, December 16, 1980, the Company posted terms and conditions of employ- ment. The Company did not hear from the Union again until your letter of April 6, 1981, when you asked the Company to send you the Company's final con- tract offer. On April 17, 1981, the Company re- sponded by sending you a copy of that offer, which was identical to the Company's position at impasse. That was the last contract from your office until your letter of November 25, 1981, nearly 14 months after the start of negotiations in 1980. In the mean- time, the Company had posted revised terms and conditions of employment with no input nor at- tempted contact from the Union. Those revised terms and conditions of employment became effec- tive November 1, 1981. The proposed agreement with the Company which you sent with your letter of November 25, 1981, is inaccurate and does not reflect the final po- sition of the Company at impasse. Sections 6, 7, and 8 contain substantial errors, despite the fact these sections were tentatively agreed upon early in nego- tiations. During the long period of time in which the Company has heard nothing from the Union, the Company has heard complaints from its employees that the Union does not respond to phone calls and letters in a timely fashion and sometimes not at all. 13 Laurie MacLeod did not work during September 1981 due to sur- gery It is apparent to the Company that the Union aban- doned the bargaining unit and now has changed its mind and wants to start bargaining all over again. At the present time, it is the Company's belief, based on facts as they exist now, that the Union does not represent a majority of the employees in the Building Maintenance Department. My advice to the Company on this set of facts must be that unless and until you demonstrate to the Company that you do represent a majority of the affected em- ployees, the Company is under no legal duty to resume the negotiations you abandoned last year. Very truly yours, Witherspoon, Kelley, Davenport & Toole, P.S. E. Glenn Harmon Fairchild stated that he refused to enter into a contract based on the November 25 letter, because the contract she sent was already signed by the Union. There had been no further discussion be- tween the parties. It would have been my opinion that when they did not respond, that they'd aban- doned the unit-this was April 11-that they had abandoned the unit, and it was my opinion at that point in time, based on circumstances there, that they had abandoned the unit and that they no longer represented a majority. I sat down and draft- ed a letter, as a matter of fact, to Laurie MacLeod and then thought better of my letter and called counsel. It is noted that Fairchild used the reason that the Union abandoned the unit multiple times and stated no other specific basis in explanation of the feeling that the Union no longer represented a majority of the unit. Apparently the reasons why he felt the Union no longer represented a majority were those appearing in the December 4 letter. In his testimony, Fairchild stated there were many rea- sons he believed the Union no longer represented a ma- jority. One reason he advanced is that Mattsen repeated- ly represented that the contract was not worth the paper it was written on if it did not contain a union-security clause.'' He also considered the fact that the employees applauded at the December 16 and 17 meetings. The lack of any union contract inside the building for nearly a year was another factor he considered.' a He heard rumors that people were not paying dues and received some inquiries whether the employees had to belong to the Union. Also, after being prompted by a leading question, Fair- child mentioned these other "factors": the lack of union inquiry regarding "two rather severe discharges;' 6 10 of 14 How this position reflected on majority status was unexplained. 15 The impact of the Company's pronouncement in December 1980 that no more union meetings would be permitted in the building was not mentioned or given consideration, nor was there any mention of the num- bers of contracts prior to December 16, 1980. 16 One discharge was for sexual harassment and the other was for dis- honesty There was no showing the Union was notified of these dis- charges, that there was a basis for it to make such an inquiry, or that the Union previously made inquiries in similar circumstances. COWLES PUBLISHING CO. the 32 employees in the unit had left between April and November 1981; and the new employees, as far as he knew, made no effort to join the Union.17 Fairchild also testified that he considered several state- ments by employees in reaching his decision not to sign the contract. He had several conversations with Isobel Olsen,' 8 an elevator operator and member of the Union. Olsen often asked him if the Company had "heard any- thing from the union because they had not, and then on other instances commenced to tell me the employees, in trying to get withdrawals, some were having difficulties in getting withdrawals." Olsen withdrew from the Union on March 8, 1982. For some time prior to that date, she was in arrears in her dues payments to the Union. Olsen testified that about 5 years ago the Seattle, Washington local assumed the representation obligation for its Spokane members in lieu of the small Spokane local that had previously repre- sented the unit. After the change, Olsen got the impres- sion that the local "didn't seem to me to have our inter- ests at heart." Olsen admitted that she did not go to membership meetings and did not know if the union con- ducted such meetings because she was disinterested. During 1981, Olsen experienced great difficulty in reach- ing any union representative and received few communi- cations from the Union, none regarding the contract ne- gotiations. In 1981 Olsen discussed the Union with Fair- child. I would tell him that some of the girls were dissatis- fied, some of us thought that we'd paid dues, were paying them for nothing. We couldn't get in touch with our representative. The date or month of these conversations is not a matter of record. Also, Olsen did not know which employees, if any, wanted the Union to represent them at the time of these conversations. When Olsen went to the Union and got her withdraw- al card, she was asked by MacLeod how many of the employees of Respondent wanted to be members of the Union because the Union was spending thousands of dol- lars on the case against the Company. This inquiry piqued Olsen's curiosity about how many employees wished to be represented by the Union, and to sate her curiosity, on March 30, 1982, Olsen posted a petition. The petition, addressed to Region 19, stated: "Presently there is a conflict between our employer, the Spokes- man-Review and Chronicle [sic]. We, the following em- ployees request an election, to determine IF [sic] the Union SEIU 6 must continue to represent us, as we feel 17 There was no predicate for this statement offered into evidence such as a business routine which brought to his attention the fact that a new employee had joined the Union There was some evidence that in 1980 and prior thereto the Company sent the Union a list of new employ- ees and there was an unsubstantiated inference that the Union relied on the information to enforce the maintenance-of-membership clause The record does not clearly demonstrate whether the Company continued to supply the Union with such information Also, the record fails to show if any of the new employees were union members In fact, the question of whether these employees would have had to join the Union after the ex- piration of the contract was never explored on the record or on brief. 18 This testimony was also elicited through leading questions 909 our best interest has not been represented for over a year." There were 22 signatures on the petition. Olsen observed a few coworkers sign the petition. The Region- al Director found the petition failed to meet the Board's requirements, and instructed her on how to meet these requirements. Accordingly, about April 12, 1982, Olsen posted an- other petition which stated: "We the undersigned em- ployees of Cowles Publishing Company, no longer wish to be represented by SEIU Local No. 6 for purposes of collective bargaining." There were 20 signatures affixed to the document. There was no clear showing that all or most of the signatures appearing on the petitions were af- fixed by the person named thereon. Olsen does not recall seeing anyone sign the April 12 petition. There was no showing that these petitions were factors considered by Respondent in its decision not to recognize the Union in December 1981. Inasmuch as the letter of December 4 predated Olsen's posting of the petition and possibly Olsen's statement to Fairchild about the Union, these pe- titions and Olsen's statements cannot be found to be the basis for Respondent's doubt concerning union majori- ty-19 Also, Olsen's point of view cannot be considered singularly demonstrative of the entire unit because she admitted personal disinterest in the Union for the past 5 years and did not consider if her view was shared by co- workers until March 1982 when she conversed with MacLeod at the time she withdrew from the Union. MacLeod, in contravention of Olsen's testimony, stated that Olsen, during Mattsen's tenure as business representative, sought the Union's assistance regarding new health and welfare benefits. This unrefuted testimo- ny demonstrates that Olsen could communicate with the Union about a problem and the problem was resolved without resort to any grievance procedure. Accordingly, it is found that there was some communication between members and the Union, and between the Union and the Company. There was no showing that an employee was denied representation. Other employee comments Fairchild asserts he consid- ered were those made by or attributed to William Smith- son, the shop steward. Smithson had a conversation with Crowley, the assistant building manager, in November, which was also attended by Toy,20 the building manag- er. Smithson asked for a wage increase. According to Crowley, Smithson "made the statement that there was no harm in trying to better himself when he felt there was no union backing him. It was every man for him- self." Crowley related this conversation to Fairchild. Smithson and Fairchild corroborated Crowley's testimo- ny. According to Smithson, Crowley's response to his '9 James D Olinger, an assistant foreman, signed the April decertifica- tion petition At the trial, counsel for the General Counsel raised the issue of whether Olinger is a supervisor , as defined in the Act, or improp- erly influenced employees who signed the petition . The evidence of record does not clearly demonstrate that Olinger is a supervisor as de- fined in the Act for it fails to show that he possesses the requisite author- ity as defined in Sec 2(11) of the Act Further, there is no evidence that he improperly influenced any other employee Counsel for the General Counsel's failure to address this issue on brief, although he raised it at trial , indicates recognition of the evidentiary failure 20 Toy did not appear and testify 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request was: "Well, just that he wasn't going to get into that yet because they was going to watch out for the contract that was going on at that time. 1121 Crowley also told Fairchild that the employees were happy with the Company and their working arrange- ment. Additionally, Crowley told Fairchild that an em- ployee, James Mason, told him that he had difficulty get- ting a withdrawal card from the Union. The date of this conversation is not a matter of record. One employee, Genevieve Knudsen, a temporary replacement, expressed happiness to Fairchild that she did not have to pay dues any longer. This conversation occurred in the spring of 1981. After receiving Harmon's letter of December 4, 1981, expressing the Company's belief that the Union no longer represented a majority of the affected employees, MacLeod, on December 9, 1981, wrote Fairchild the fol- lowing letter: I am in receipt of Mr. E. Glenn Harmon's letter of December 4, 1981, regarding contract negotiations with Cowles Publishing Company, in which he identifies areas of "substantial error" in Sections 6, 7 and 8 of the contract draft I sent you on November 25, 1981. Although it is not clear in Mr. Harmon's letter, I am assuming that the sections in question are those under Article I. The contract notes I was left to draft were not complete in this area, and your April 17, 1980 response did not include specif- ic language on these sections. I am aware that this was an item tentatively agreed upon early in the ne- gotiations process. Please forward your language on these sections as tentatively agreed upon so that I may correct our contract draft. Apparently there was no reply, so MacLeod again wrote the Company on December 28, 1981, stating: This is to confirm that the last and final offer which you presented in negotiations on December 16, 1980 at 3:43 p.m. was and is accepted by this union and our bargaining unit at the Spokesman-Review. Please send us a complete signed copy of this last and final offer for our signature by January 15th, 1982. Again, there appears to be no reply from the Company; hence MacLeod sent Fairchild the following missive: In reviewing our files, I have compiled a revision or Article I, Sections 6, 7 and 8 (attached) of Cowles Publishing Company's final position in negotiations on 12/16/80. Please replace the language which I forwarded to you on 11/25/81 in these specific sec- tions with the attached language. As you raised no other objections to the remainder of my 11/25/81 contract draft, I will assure you that the attached sections are the only unresolved 81 Smithson also testified that he withdrew from the Union but there is no showing that the Company knew he took this action Smithson 's testy mony does reflect company acknowledgement of its obligation to bargain at the time sections of this agreement. If I do not receive any further objections to the attached language as cor- rected by 2/8/82, 1 will also conclude that we have reached agreement on these sections, thereby reach- ing agreement on the entire final offer. Absent fur- ther problems with our draft, I am requesting that you forward a complete signed agreement by 2/15/82. Attached to this letter were revised copies of article I, sections 6, 7, and 8, reflecting the Union's understanding of what language was contained in the Company's final offer. On January 28, 1982, Harmon replied to MacLeod as follows: Mr. Robert D. Fairchild has asked me to reply to your letter of January 25, 1982, to him. The copy of the proposed contract you mailed to Mr. Fairchild still has minor discrepancies amount- ing to unilateral changes in Sections 6 and 7 of Arti- cle I. However, since the Company has now received notice of an NLRB Unfair Labor Practice charge by SEIU Local 6, I assume there is no point in dis- cussing the matter further. No doubt it will be re- solved in the NLRB proceedings. Also in January 1982, on the 6th and again on the 29th, the Union asked Respondent for a complete list of all employees in the unit; specifically the Union request- ed the names, addresses, dates of hire, rates of pay, and classifications of those employees. The Company did not provide this information. On February 1, 1982, Fairchild wrote the Union, stating: As you are aware, Cowles Publishing Company does not recognize SEIU No. 6 as representing our employees. Therefore, the Company, respectfully, refuses to provide this confidential information to you. Analysis and Conclusions The initial issue is whether Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to execute the collective-bargaining agreement sent to Respondent on November 25, 1981, as revised on January 25, 1982. Sec- tion 8(a)(5) of the Act provides that it is an unfair labor practice for an employer "to refuse to bargain collective- ly with the representatives of his employees." Section 8(d) states that, for purposes of Section 8, "to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to ... execut[e] ... a written contract incorporating any agreement reached if requested by either party." The record requires a finding that Respondent's last and final offer of December 16, 1980, was never with- drawn as affirmed in Fairchild's letter of April 17, 1981, which refers to that proposal as the Company's final con- tract offer. Also, Fairchild testified that he would have COWLES PUBLISHING CO. signed the contract "had the union come in and sat down with me that day or within a reasonable time thereafter." It has long been settled that when an employer and the bargaining representative of the employees are in agree- ment on the terms of a collective-bargaining agreement, it is required that upon request by one party to the agreement, the other sign a written contract incorporat- ing the terms of this agreement . H. J. Heinz v. NLRB, 311 U.S. 514 (1941). Retail Clerks Local 322, 226 NLRB 80 (1976). Before an employer or a union is obliged to sign an agreement in accordance with the Supreme Court's hold- ing in H. J. Heinz v. NLRB, ibid., the parties negotiating the agreement must have reached a final agreement. Sumner Home for the Aged, 226 NLRB 976 (1976). The Board and the courts have consistently held that technical rules of contract are not necessarily controlling in cases arising under the Act. Summer Home for the Aged, supra; F. W. Means & Co. v. NLRB, 377 F.2d 683, 686 (7th Cir. 1967); Lozano Enterprises v. NLRB, 327 F.2d 814, 817 (9th Cir. 1964). Also, as the Supreme Court stated in NLRB Y. Strong Roofing Co., 393 U.S. 357, 361 (1969): The Board is not trespassing on forbidden territory when it inquires whether negotiations have pro- duced a bargain which the employer has refused to sign and honor, particularly when the employer has refused to recognize the very existence of the con- tract. The foregoing principles from Strong "permit inquiry into whether or not the surrounding circumstances have produced a bargain mandating adherence by the partici- pants. To determine the issues, it is appropriate to utilize the normal rules of contract offer and acceptance." Brew- ery Delivery Employees Local 46 (Guinness-Harp Corp.), 236 NLRB 1160 at 1168 (1978). The general legal principle controlling the issue of whether an agreement has been reached was succinctly set forth in Shreveport Garment Mfrs., 133 NLRB 117, 121 (1961), as follows: While a labor contract is sui generis, like commer- cial or other contracts it comes into being with binding effect only after there has been a meeting of the minds by the contracting parties on a complete agreement. Such meeting of the minds may occur by the acceptance of an outstanding offer, which looks to the creation of a binding contract upon ac- ceptance. [Emphasis added.] Accord: National Fresh Fruit & Vegetable Co., 232 NLRB 543, 553 (1977); Jensen's Truck Stop, 234 NLRB 567 at 568 (1978). There is no question that the letters sent by MacLeod to the Union accepted the Company's last and final offer; hence, there was a meeting of the minds That the Union's signed draft of the contract did not accurately reflect the language of certain sections of arti- cle I of the Company's last and final offer does not re- quire a different conclusion. The Union clearly indicated that if its November 25 submission did not clearly reflect 911 the terms as negotiated, the Union would correct its draft of the agreement. At no time did the Union predi- cate its acceptance of the Company's last and final offer upon Respondent's agreement to the Union's executed contract sent to the Company in November. Therefore, there was no unilateral change in the terms of the Com- pany's last and final offer. Cutter Laboratories, 265 NLRB 577 (1982). The misstatements of the terms of the Company's December 16 offer in the November draft were not of such nature and quality as to infer a lack of agreement or intent to modify the agreement. As noted in Shawn's Launch Service, 261 NLRB 836 at 837 (1982): With regard to the discrepancies in the first draft of the contract, there can be no question that they were merely inadvertent errors in transcription by the Union and in no wise indicated that the minds of the parties had not met. While it is, of course, true that, as Respondent argues, an employer is not obligated to execute a contract which does not mirror the agreements reached, that problem was obviated once the Union willingly made the correc- tions sought and prepared a fresh copy. Reppel Steel & Supply Co., Inc., 239 NLRB 358, 362 (1978). In fact, Fairchild's admission that union acceptance in April would have led to execution of the agreement sub- stantiates the conclusion that binding agreement had been reached by the Union's acceptance of the Compa- ny's offer. See Torrington Construction Co, 235 NLRB 1540, 1545 (1978). Further buttressing this finding that the Union clearly evinced the intent to accept the Com- pany's last and final offer is Respondent's argument on brief that the Union's acceptance of this offer is a capitu- lation, evidencing an acknowledgement of loss of majori- ty. Thus, the evidence clearly establishes that the parties have reached agreement. Respondent argues that it is excused from executing the negotiated contract because it "has a good-faith doubt as to support of SEIU by majority of employees." In general, on the expiration of a collective-bargaining agreement an employer may not withdraw from an in- cumbent union unless certain circumstances exist. The controlling law is the same as that which has evolved for the withdrawal of recognition after the expiration of a certification year. Emerson Mfg. Co., 200 NLRB 148 (1972); Bartenders Assn. of Pocatello, 213 NLRB 651 (1974); Beacon Upholstery Co., 226 NLRB 1360, 1367 (1976). That law is set forth in Pennco, Inc., 250 NLRB 716 (1980) (supplementing 242 NLRB 467 (1949)), in which the Board held: As stated in our earlier Decision, absent unusual circumstances, a union is irrebuttably presumed to enjoy majority status during the first year following its certification. Upon expiration of the certification year, the presumption of majority status continues but becomes rebuttable. An employer who wishes to withdraw recognition from a certified union after a year may rebut the presumption in one of two ways: (1) by showing that on the date recognition was withdrawn the union did not in fact enjoy ma- 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jority support, or (2) by presenting evidence of a sufficient objective basis for a reasonable doubt of the Union's majority status at the time the employer refused to bargain. [Citations omitted.] Respondent does not contend, nor does the evidence of record indicate, that on the date Respondent claimed the Union did not represent a majority of the affected employees, December 4, 1981, the Union did not in fact enjoy majority status. The issue addressed by Respond- ent is whether it had an objective basis for a reasonable doubt of the Union's majority status at the time it refused to execute the collective-bargaining agreement. The Company has the burden of establishing that it had such objective basis supporting a good-faith doubt of union majority. IT Corp., 263 NLRB 1183 (1982).22 As Justice Friendly stated, in NLRB v. Koenig Iron Works, 681 F.2d 130, 137 ( 1982): Given the danger that assertions of the good faith defense would pose to the stability of the collective bargaining process if not carefully scrutinized, see N.L.R.B. Y. Tahoe Nugget, Inc., 584 F.2d 293, 303- 04 (9 Cir. 1978) ("the presumption ensures the Act's most valued objective: industrial peace"), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 290 (1979), companies relying on the defense must come forward with easily verifiable and unambiguous evi- dence supporting their belief that their employees have rejected the incumbent union as a bargaining agent. Thus, the employer has the burden of pro- ducing "clear and convincing evidence of loss of union support," Retired Persons Pharmacy v. N.L.R.B., supra, 519 F.2d at 489-90; Nazareth Re- gional High School v. N.L.R.B., 549 F.2d 873, 880 (2 Cir. 1977). In summarizing the above-stated factors, Respondent claims the following to be the basis for a reasonable doubt of the Union's majority status: 1. Mattsen's repeated statements, through negotiators, that a contract without a "union security clause [is] not worth the paper it is written on." There is nothing inher- ent in this bargaining position indicative of loss of union majority. 2. During the meeting held by Respondent for the em- ployees, the employees cheered. It is noted that the record is not clear whether they cheered the Company's statement of position or the announcement that they would no longer be required to pay dues. The cheering, therefore, cannot be held as "clear and convincing evi- dence of loss of union support." Retired Persons Pharma- cy v. NLRB, supra. az IT Corp cites Pennco, Inc, supra at 717, as follows (T]he employer's burden is a heavy one Thus, "it is insufficient that the employer merely intuits nonsupport,"7 and good faith doubt "may not depend solely on unfounded speculation or a subjective state of mind."e 7 J Ray McDermott and Co, Inc v NLR.B., supra at 859 a NLRB Y Gulfmont Hotel Company, 362 F 2d 588 (5th Cir 1966), enfg. 147 NLRB 997 (1964) 3. In November 1981, Crowley told Fairchild that Smithson, while seeking a raise, stated "there was no harm in trying to better himself when he felt there was no union backing him." There is no clear showing that this statement was more than the mere expression of one employee's dissatisfaction with the Union's slow handling of the negotiations. Even if such a statement is consid- ered as repudiation of the Union, one employee's state- ment is not indicative of loss of majority. See NLRB v. Mar-Len Cabinets, 659 F.2d 995 (9th Cir. 1981). 4. The only contact between the Union and Respond- ent from December 1980 to April 1981 was the Union's filing of a charge which was subsequently dismissed by the Board. The pendency of unfair labor practice charges could have chilled communications rather than loss of majority. The lack of communications between the parties from April to November 1981, a period of 7 months, is inad- equate to raise a good-faith doubt, particularly when, as here, it has been established that there was a high turn- over of union representatives which resulted in some confusion in contract negotiation and administration. Also, the April letter indicated continuing union interest in representing the unit. See Cobb Theaters, 260 NLRB 856 (1982). Compare Southern Wipers, 192 NLRB 816 (1971), and Leatherwood Drilling Co., 209 NLRB 618, 621 (1974). 5. That there was no evidence of any union representa- tives at Respondent's place of business during 1981. This reason is not considered probative of loss of majority be- cause Fairchild admittedly denied the union access to its premises in December 1980. 6. That there was no grievance activity by the Union during 1981 despite the fact that there were two dis- charges, one for dishonesty and the other for sexual har- assment. There was no showing concerning prior union practices on the record. Therefore, there is no basis for finding the absence of grievance activity indicative of loss of majority. There was no showing that grievances were warranted or inactivity was unusual, connoting changed circumstances. See NLRB Y. Tahoe Nugget, 384 F.2d 293 at 307 (1978). 7. Sometime in December 1981, Crowley told Fair- child that a unit employee, Mason, "had gone to the union hall to try to get a withdrawal card and they re- fused to get it to [him]." Also in 1981 Crowley told Fair- child about "people and conversation with people in an- other meeting coming out saying the Union wasn't doing nothing for them." The actual dates of these incidents are not matters of record. Similarly, Fairchild testified that an employee named Horner told him he was experi- encing difficulty getting a withdrawal card. the date of this conversation is not a matter of record. Therefore, it cannot be found that these reports were made prior to Fairchild's decision to withdraw recognition from the Union and refuse to execute the agreement. See NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir. 1966), and NLRB v. Koenig Iron Works, supra, 681 F.2d 130 at 138 (1982), in which it was noted: Indications of employee dissatisfaction or disagree- ment with strike decision or other union actions COWLES PUBLISHING CO. may provide the basis for an inference that the em- ployees no longer want the union as their bargain- ing agent. However, such evidence of dissatisfaction bears only indirectly on the question of majority support, and will often be entirely consistent with continued employee desires for union representa- tion. In such circumstances, the employer has the burden of producing direct evidence of employee rejection of the union's representation. See N.L.R.B. v. National Seal Corp., supra. [127 F.2d 776 (2d Cir. 1942) (L. Hand, J.).] 8. Respondent asserts that the April 6, 1981 letter from MacLeod stated that the last and final offer of Cowles was to be submitted for ratification by the union mem- bership. Cowles was never informed that the contract had been ratified. This defense is found to be without merit. There is no evidence that ratification was a condi- tion precedent to effectuation of the collective-bargain- ing agreement. North Country Motors, 146 NLRB 671 (1967). That a ratification vote was mentioned by MacLeod on April 6, 1981, does not establish such a condition. As stated in North Country Motors, "The Act imposes no obligation upon a bargaining agent to obtain employee ratification of a contract it negotiates on their behalf." Also there is no showing that the Union has in- ternal policies which require ratification of employer offers. Even if the Union has an internal policy which re- quires ratification of employer offers, the employer may not challenge those procedures or premise execution of the contract on ratification by employees. Even when the employer has received notice from employees that they do not approve of the contract negotiated by the exclusive representative and there is an agreement be- tween the union and the employer that execution of the agreement shall be conditioned on ratification, the em- ployer is bound by the union's claim that the contract had been ratified. M & M Oldsmobile Inc, 156 NLRB 903 (1966), affd. 377 F.2d 712 (2d Cir. 1967), in which the court stated: [A] bargaining agent need not assume the obligation of obtaining ratification of a contract it may negoti- ate on behalf of its members, but, if it does so, it is for the union, not the employer, to construe and apply its internal regulations relating to what would be sufficient to amount to ratification. In this case the union representative understood that rati- fication has been accomplished. However, as noted above, such ratification was not shown to be a condition to execution of the collective-bargaining agreement. As noted in Shawn's Launch Service, 261 NLRB 836 at 840: In the absence of some explicit limitation on the bargaining authority of a union, it is, "by virtue of its certification as exclusive bargaining agent .. . empowered by its members to make agreements on behalf of the employees it represent[s] without se- curing the approval of those employees." Houchens Market of Elizabethtown, Inc. Y. N.L.R.B., 375 F.2d 208, 212 (5th Cir. 1967). 913 9. Fairchild stated that there had been no effort on the part of the Union to contact new employees to join the Union even though, under the expired contract, there was a union-security clause. The unit had an employee turnover between April and November 1981 of 10 of 32 employees. Fairchild did not state when he learned that the Union had not contacted new employees and he did not describe how he garnered this information. Employ- ee turnover, standing alone, does not provide a reasona- ble basis for believing that the Union lost its majority. Taft Broadcasting, 201 NLRB 801 (1973). This factor, considered in conjunction with the other factors men- tioned above, is not sufficient to establish good-faith doubt of loss of majority. Respondent did not refute the presumption that new employees support the Union in the same ratio as the old employees. Robertshaw Controls Co., 240 NLRB 1260 (1979). That the prior contract had a union-security clause does not establish a good-faith belief of loss of majority through inactivity because the April letter indicated the Union was considering accept- ing the Company's last and final offer which specifically excluded the union-security provisions contained in the prior agreement. Similarly, Respondent's claim of aban- donment of the unit must fail for the same reasons. See further Nevada Lodge, 227 NLRB 368, enfd. sub nom. NLRB v. Tahoe Nugget, 584 F.2d 293 (9th Cir. 1978), cert. denied 442 U.S. 921 (1979). The Employer's knowl- edge at the time of the disavowal was not clearly shown to support a reasonable basis for doubting the Union's majority. The Union's acquiescence to Respondent's pro- posed deletion of the union-security clause does not indi- cate abandonment of unit employees or waiver of its right to bargain. 10. The conversation with Olsen mentioned she and several others were seeking to withdraw from the Union and she was "dissatisfied" with the Union's representa- tion. Olsen's withdrawal from the Union was subsequent to December 4 and hence not properly considered. Olsen also stated that she stopped paying dues in May 1981. There is no showing that Respondent had knowledge of this action or that this action terminated her membership. Fairchild also testified that he had heard rumors that some employees had stopped paying dues. There was no showing when he heard those rumors or if they were de- rivative from Olsen's statement and hence a duplication of incident. As noted in NLRB v. Koenig Iron Works, supra at 138, evidence of dissatisfaction is not direct evi- dence of lack of majority support and may be consistent with a continued desire to be represented by the Union. Any evidence of reduced dues payments or employee dissatisfaction after December 4, 1981, must be rejected, for to do otherwise would reward Respondent for its un- lawful refusal to recognize the Union. 11. Respondent also refers to the two decertification petitions prepared by Olsen, but these documents do not establish that Respondent held a good-faith belief of loss of majority, and the argument is without merit. Initially, the decertification petitions were posted months after December 4, 1981. The record does not establish that a majority of the affected employees actually signed the petitions, or that signing the petitions clearly demonstrat- 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed loss of majority. See Houston Coca-Cola Bottling Co., 265 NLRB 1488 (1982) (where employer limited union access tq premises), and Dresser Industries, 264 NLRB 1088 (1982), which held that the filing of a decertifica- tion petition "indicates nothing more than disaffection of a majority of unit employees." Based on the above, it is found that Respondent's evi- dence was unreliable and the inferences drawn therefrom tenuous. Furthermore, much of Fairchild's testimony was elicited through the device of leading questions, there- fore impairing the credibility of his testimony. Accord- ingly, the factors set forth by Harmon in the December 4, 1981 letter to MacLeod23 are found to be the only factors relied on by Respondent at the time the decision to revoke recognition was made. These factors do not clearly, cogently, and convincingly show objective, rea- sonable belief of loss of majority. Even if all the factors mentioned by Respondent as occurring before it with- drew recognition were relied on, as found above, they are insufficient to justify its unilateral withdrawal of rec- ognition. Accordingly, it is found that Respondent vio- lated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the incumbent Union. Failure to Provide Information The Employer has an obligation "to provide informa- tion that is needed by the bargaining representative for the proper performance of its duties." NLRB v. Acme In- dustrial Co., 285 U.S. 432, 435-436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); NLRB v. Item Co., 220 F.2d 956 (5th Cir. 1955). Failure to meet this obliga- tion constitutes a breach of the Employer's duty to bar- gain in good faith in violation of Section 8(a)(5) and (1) of the Act. NLRB v. Acme Industrial Co., supra at 438. The duty to bargain underlies the duty to provide in- formation. Respondent clearly based its refusal to pro- vide the requested information solely on its withdrawal of recognition.24 Having found that the Respondent has failed to meet the extremely difficult burden of establish- ing a reasonably couched good-faith doubt of majority, concomitantly it has breached its duty to provide infor- mation which is unquestionably necessary and relevant to the Union's function as the employees' representative. Accordingly, this failure is violative of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees of Respondent employed in servicing the Review-Chronicle Buildings in the capacity of jani- tor, elevator operator, wall washer or window washer, 22 The letter stated - "During the long period of time in which the Company has heard nothing from the Union, the Company has heard complaints from its employees that the Union does not respond to phone calls and letters in a timely fashion and sometimes not at all It is appar- ent to the Company that the Union abandoned the bargaining unit and now has changed its mind and wants to start bargaining all over again." 24 See Respondent's letter dated February 1, 1982, Jt Exh 16 excluding office clerical employees , guards, supervisors as defined in the Act and all other employees constitute a unit appropriate for collective bargaining pursuant to Section 9(b) of the Act. 4. By refusing to sign and put into effect the agree- ment designated the Employer's last and final offer and agreed to on November 25, 1981, Respondent violated Section 8(a)(5) and (1) of the Act. 5. By withdrawing recognition from the Union as the representative of the employees in the aforesaid bargain- ing unit, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By failing and refusing to furnish the aforesaid labor organization with the information requested by it on Jan- uary 6 and 29, 1982, concerning the names, addresses, dates of hire, and rates of pay of all employees in the unit, Respondent violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, Cowles Publishing Company, Spo- kane, Washington, its officers, agents, successors and as- signs shall 1. Cease and desist from (a) Refusing to execute the collective-bargaining agree- ment with Service Employees International Union, Local 6, AFL-CIO, which was agreed upon on November 25, 1981. (b) Withdrawing recognition of December 4, 1981, and refusing to recognize and bargain with Service Employ- ees International Union, Local 6, AFL-CIO, as the rep- resentative of the following unit: All employees of Respondent employed in servicing the Review-Chronicle Buildings in the capacity of janitor, elevator operator, wall washer or window washer, excluding office clerical employees, guards, supervisors as defined in the Act and all other em- ployees. (c) Refusing to furnish the aforesaid labor organization with the information requested by it on January 6 and 29, 1982, concerning the names, addresses, dates of hire, and rates of pay of all employees in the unit. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 25 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses COWLES PUBLISHING CO. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Execute forthwith the collective-bargaining agree- ment with the Union which was agreed on on November 25, 1981. (b) Implement all the terms of the aforesaid collective- bargaining agreement. (c) On request, bargain with the above-named labor organization as the exclusive representative of all em- ployees in the aforesaid bargaining unit with respect to rates of pay, wages, hours, and other terms and condi- tions of employment. (d) On request, furnish the above-named labor organi- zation with the information it requested on January 6 and 29, 1982. (e) Post at its offices and places of business copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees and members are customari- ly posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 26 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. First, we notify you that the National Labor Relations Act gives all employees these rights: 915 To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to recognize Service Employees International Union, Local 6, AFL-CIO as the exclusive bargaining representative of our employees in the follow- ing described appropriate bargaining unit: All employees of Respondent employed in servicing the Review-Chronicle Buildings in the capacity of janitor, elevator operator, wall washer, window washer, excluding office clerical employees, guards, supervisors as defined in tha Act and all other em- ployees. WE WILL NOT refuse to execute the collective-bargain- ing agreement with the Union which was agreed on No- vember 25, 1981. WE WILL NOT fail and refuse to give effect to the terms and provisions of the agreed-on collective-bargain- ing agreement with the Union. WE WILL NOT refuse to furnish the above-named labor organization with the information requested by it by let- ters of January 6 and 29, 1982, concerning the names, ad- dresses, dates of hire, and rates of pay of all employees in the previously described unit. WE WILL NOT in any like or related manner Interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described above regarding wages, hours, and other terms and conditions of employment. WE WILL execute forthwith the collective-bargaining agreement with the Union which was agreed on on No- vember 25, 1981. WE WILL give effect to the terms and provisions of that collective-bargaining agreement. WE WILL, on request, furnish the above-named labor organization the information it requested on January 6 and 29, 1982. COWLES PUBLISHING COMPANY