R. Waldo, Inc.

R. WALDO, INC. R. Waldo, Inc. and Local Union No. 562, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO Congress of Independent Unions and Local Union No. 562, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL- CIO. Cases 14-CA-17440 and 14-CB-6189 23 July 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 24 January 1986 Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondents filed exceptions and supporting briefs, and the General Counsel filed cross-excep- tions 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 briefs and has decided to affirm the judge 's rulings, findings 2 and conclusions as modified, but not to adopt the recommended Order.3 i The Respondent Union has excepted to some of the judge's credibil- ity findings. The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Stand- and 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 re- versing the findings. The Respondent Company contends that the judge's decision is tainted by bias toward the Respondent Union After careful examination of the entire record and the judge's decision, we find no evidence that he pre- judged the case, made prejudicial rulings, or demonstrated bias, hostility, and prejudice towards the Respondent Union. The Company also asserts that the judge should have disqualified him- self from deciding the case because of his bias towards the Union. How- ever, the Board's Rules and Regulations, Sec. 102.37 requires that the party requesting a judge to disqualify himself do so before the judge files his decision. Under these circumstances, the Respondent's contention is not timely raised. Al Bryant, Inc., 260 NLRB 128 fn. 1 (1982), enfd. 711 F.2d 543, 554 (3d Cir. 1983); Canal Electric Co., 245 NLRB 1090 fn. 2 (1979). Y In sec. II,D,3, par. I of his decision, the judge stated that employee Dallas Glass signed a dated card on "9 March" instead of "9 May." In sec. H,D, 1, par. 1 of his decision, the judge found that CN Representa- tive John Flach reported to President Russell Waldo his telephone con- versation with Steward Robert Johnson. Both the record and the judge's findings of fact reveal that Flach only told Johnson that he was going to call Waldo and "get this straight" and not that Flach actually reported to Waldo his conversation with Johnson . This error, however, does not affect our adoption of the judge's findings regarding Johnson's testimony that he told Waldo the employees voted not to renegotiate a contract with cm. We find merit in the General Counsel's exception to the judge's fail- ure to include a remedy in his recommended Order for the independent 8(aXl) violations he found based on the Respondent Company's unlawful interrogations of its employees and threats to discharge them The judge also failed to include in the recommended Order all of the cease-and-desist provisions and affirmative relief required by his findings. 1237 ORDER The National Labor Relations Board orders that: A. Respondent R. Waldo, Inc., High Ridge, Mis- souri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully interrogating its employees con- cerning their union sentiments. (b) Threatening employees with discharge be- cause they assist or support Local Union No. 562, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, or any other labor organization. (c) Recognizing Respondent CIU as the exclu- sive bargaining representative of its employees unless the CIU is certified after a Board-conducted election. (d) Giving effect to the collective-bargaining agreement with the CIU dated 7 May 1984, or to any extension, renewal, or modification unless the CIU is certified; provided, however, that nothing here shall be deemed to require the Respondent Company to vary or abandon any wage, hour, se- niority, or other substantive term of employment established under such agreement. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from CIU as the exclusive bargaining representative of its employees unless the CIU is certified after a Board-conducted election. (b) Jointly and severally with Respondent CIU reimburse present and former employees for all moneys deducted since 16 April 1984 under the union-security provisions of the 7 May 1984 agree- ment, plus interest as set forth in the remedy sec- tion of the judge's decision. (c) Post at its facility in High Ridge, Missouri, copies of the attached notice marked "Appendix A."4 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent Company's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 We shall therefore issue a new Order in lieu of the judge's recommended Order and a new notice to conform to our Order 4 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." 280 NLRB No. 135 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions, as set forth in (c) above, and as soon as they are forwarded by the Regional Director, copies of the CIU's attached notice marked "Ap- pendix B." (e) Sign and return by mail to the Regional Di- rector, immediately upon receipt from him , copies of the attached notice marked "Appendix A" for posting by the CIU. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Company has taken to comply. B. Respondent Congress of Independent Unions, Alton, Illinois, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Acting as the exclusive bargaining representa- tive of the Respondent Company's employees unless certified after a Board-conducted election. (b) Giving effect to the collective-bargaining agreement with the Respondent Company dated 7 May 1984, or to any extension, renewal , or modifi- cation unless certified after a Board-conducted election. (c) Causing, or attempting to cause, the Re- spondent Company to discriminate against employ- ees in violation of Section 8(a)(3) of the Act by en- tering into, or maintaining, any agreement with the Respondent Company which requires, as a condi- tion of employment, membership in the Respondent Union, or in any like or related manner causing, or attempting to cause, the Respondent Company to discriminate against any employee in violation of Section 8(a)(3) of the Act. (d) In any like or related manner restraining or coercing the employees of the Respondent Compa- ny in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Jointly and severally with the Respondent Company reimburse present and former members for all moneys deducted since 16 April 1984 under the union-security provisions of the 7 May 1984 agreement, plus interest as set forth in the remedy section of the judge's decision. (b) Post at its offices and meeting hall in Alton, Illinois, copies of the attached notice marked "Ap- pendix B."s Copies of the notice, on forms provid- ed by the Regional Director for Region 14, after being signed by the Respondent CIU's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (c) Post at the same places under the same condi- tions, as set forth in (b) above, as soon as they are forwarded by the Regional Director, copies of the Company's attached notice marked "Appendix A." (d) Sign and return by mail to the Regional Di- rector, immediately upon receipt from him, copies of the attached notice marked "Appendix B" for posting by the Company. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent CIU has taken to comply. 5 The provisions of fn. 4 also apply to Appendix B. APPENDIX A 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 ordered us to post and abide by this notice. WE WILL NOT unlawfully interrogate you con- cerning your union sentiments. WE WILL NOT threaten you with discharge be- cause you assist or support Local Union No. 562, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, or any other labor organization. WE WILL NOT recognize the Congress of Inde- pendent Unions as your exclusive bargaining repre- sentative unless it is certified by the National Labor Relations Board pursuant to a Board-conducted election among our employees. WE WILL NOT give effect to our collective-bar- gaining agreement with the CIU dated 7 May 1984, or to any extension, renewal, or modification unless the CIU is certified; we are not required, however, to vary those wages, hours, seniority, or other sub- R. WALDO, INC stantive terms of employment established under such agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold all recognition from the CIU as your exclusive bargaining repre- sentative unless the CIU is certified after a Board- conducted election. WE WILL jointly and severally with the CIU re- imburse our present and former employees for all moneys deducted since 16 April 1984 under the union-shop provisions in the 7 May 1984 agree- ment, plus interest. R. WALDO, INC. APPENDIX B NOTICE To MEMBERS 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 ordered us to post and abide by this notice. WE WILL NOT act as the exclusive bargaining representative of R. Waldo, Inc. employees unless certified by the National Labor Relations Board pursuant to a Board-conducted election among them. WE WILL NOT give effect to our collective-bar- gaining agreement with R. Waldo, Inc. dated 7 May 1984, or to any extension, renewal, or modifi- cation unless certified. WE WILL NOT cause, or attempt to cause, R. Waldo, Inc. to discriminate against its employees in violation of Section 8(a)(3) of the Act by entering into, or maintaining, any agreement with it which requires, as a condition of employment, member- ship in our organization, or in any like or related manner cause, or attempt to cause, R. Waldo, Inc. to discriminate against any employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner re- strain or coerce the employees of R. Waldo, Inc. in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL jointly and severally with R. Waldo, Inc. reimburse our present and former members for all moneys deducted since 16 April 1984 under the union-shop provisions in the 7 May 1984 agree- ment, plus interest. 1239 Mary J. Tobey, Esq., for the General Counsel. Stuart W. Hyvonen, Esq., of Greenwood, Indiana, for the Company. Roger F. Wilson, Esq., of Alton, Illinois, for the CIU. John H. Goffstein, Esq. (Bartley, Goffstein, Bollato & Lange), of Clayton, Missouri, for the Local. DECISION STATEMENT OF THE CASE MARION C. LAD WIG, Administrative Law Judge. These cases were tried at St. Louis, Missouri, on 7-8 Oc- tober 1985. The charges were filed by Local 562 on 21 May 1984,1 and the consolidated complaint was issued 6 July and amended 23 July. The Company and the CIU negotiated over the tele- phone a 50-cent wage increase and signed a new agree- ment-preserving the low "nonunion" wages and bene- fits for 3 years-even though all the bargaining unit em- ployees had abandoned the CIU, had refused to partici- pate in the negotiations, and (except one employee on vacation) had signed Local 562 authorization cards. The primary issues are whether (a) Respondent Com- pany unlawfully interrogated employees and threatened to discharge them if they changed their membership from the CIU to Local 562 and (b) the Respondent and the CIU unlawfully signed the renewal agreement when they both knew that the CIU had lost its majority status, in violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the National Labor Relations Act. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the Company and the CIU and the excel- lent brief filed by the General Counsel, I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Missouri corporation, is a mechanical contractor installing air-conditioning and heating systems from its facility in High Ridge, Missouri, where it annu- ally purchases goods valued over $50,000 directly from outside the State. The Company and CIU admit that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the CIU and Local 562 are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. CIU's "Nonunion" Wages and Benefits Although it is common knowledge that Company President Russel Waldo has had collective-bargaining agreements with the Congress of Independent Unions (CIU) covering the Company's employees (Tr. 223), the Company is considered a nonunion employer (Tr. 82-83). Even the Company's counsel, at one point during the CONGRESS OF INDEPENDENT UNIONS ' All dates are in 1984 unless otherwise indicated. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial (Tr. 235), referred to the Company's CIU-represent- ed employees as "nonunion people." The CIU wage scale was far below Local 562's $16.95 (Tr. 37, 70) union wage scale. The journeymen rate for plumbers and pipefitters in the CIU agreement that ex- pired 15 April 1984 was $10.93 (increased 50 cents an hour in the new telephone-negotiated rate for the first year of the current agreement (G.C. Exh. 3) signed in May). Among the Company's eight employees in the bargaining unit in April (all of whom were later accept- ed as Local 562 members (Tr. 305)), three were paid (except on prevailing-wage jobs) about $ 11 or $11.25 an hour (Tr. 189, 209, and 312) and three, less than $10 an hour (Tr. 70, 165, 180). Employee Kenneth Meyer (whose wage rate is not revealed in the evidence ) credi- bly testified that he wanted to be represented by Local 562 because "they have a lot better benefits" as well as "a hiring hall ... retirement" and "better pay" (Tr. 91). I have considered this evidence of "nonunion" CIU wages and benefits in evaluating President Waldo's claim that he did not know that a majority of the eight compa- ny employees wanted to become members of Local 562 (Tr. 300) and in evaluating the reason he asserted when he testified (Tr. 309), "That is why we kept the CIU union for" (referring to different kinds of work). B. Abandonment of CIU In 1982 when President Russel Waldo set up a sepa- rate corporation, Waldo, R., Inc., to operate a union shop under a Local 562 agreement, he transferred eight of the Company's employees to Waldo, R. to be paid (like others hired through the union hiring hall) full union scale and benefits. As Waldo admitted, there was "some grumbling" (Tr. 318) among the employees who remained on the Company's payroll under the CIU agreement, but Local 562 had agreed with him that it would be economically infeasible to pay all the employ- ees the higher wage rate on jobs that had been bid on a lower rate (Tr. 232). All the Company's employees had met at the Local 562 hall before the transfer of the first eight. As Business Agent James O'Mara (who appeared to be an honest witness) credibly testified, he told Waldo that the employees "wished to come with us" and Waldo stated that after the termination of the CIU agreement (in April 1984) all of them would be Local 562 members (Tr. 223, 232, 236). I note that early in its brief the Company points out that "From 1982, and at all times relevant to this case, employees of [the Company] and Waldo, R. worked to- gether basically doing the same jobs on the same projects from the same office and with the same supervision." Since the renegotiation of the CIU contract in 1981 the CIU had no contact with the employees. (The Com- pany checks off CIU's $20 monthly dues.) In February 1984 Cm Business Representative John Flach sent Presi- dent Waldo notice requesting the Company to negotiate on wages, etc. (R. Exh. 3). In early March Flach con- tacted CIU Shop Steward Robert Johnson for the first time. (The remaining employees had elected Johnson in 1983 to represent them until the CIU contract expired (Tr. 58). He replaced the shop steward whom Waldo transferred to Waldo, R. in 1982 (Tr. 19). All eight of the employees believed that when the contract expired 15 April 1984 President Waldo would permit them to join Local 562 and would begin operating an all-union shop, eliminating the "split" shop.) Telephoning Johnson, Flach said, "We are running out of time, we need to sit down and renegotiate a contract with Waldo." Johnson responded that he would have to get all the employees together and have a meeting and get back to him. (Tr. 20.) About 13 March Steward Johnson called a meeting of the other seven members of the bargaining unit (Tr. 8): Steve Bailey, Dallas Glass, Jerry Licklider, Kenneth Meyer, Claude Peltonen, William Schilling, and Joseph Seier. (The three nonunit employees on the payroll, James Christopher, Johnnie Gelven Sr., and Zach Pour- ney, were not invited. They were hired as part-time em- ployees on October 1983 and did not become members of the bargaining unit until June, when they joined the CIU and began receiving the contractual benefits (Tr. 206, 280, 288).) Johnson said, "We needed to officially stand on record whether we wanted to be represented by [Local 562] or the Cm" (Tr. 169). As he credibly testi- fied (Tr. 21) he asked, "Is any one individual want to re- negotiate a contract with the CIU?" They unanimously voted against the CIU representing them any longer and in favor of Local 562 (Tr. 61 ). In Johnson's words, "we couldn't understand why we would want to renegotiate a contract" with the Cm because "our understanding" was that "we was going to go with the Pipefitters Local 562 after the [Cm contract] ran out" (Tr. 21). (I was most impressed by Johnson's demeanor on the stand as an honest, forthright witness.) About 3 days later (16 March) CIU Representative Flach talked to Johnson a second time over the tele- phone and said, "We are going to have to get going on the contract." As Johnson credibly testified, he told Flach, "we are not going to ... renegotiate a contract with you," that "we had a meeting and all the members ... had taken a vote and we did not want to renogo- tiate the contract with the CIU." Flach responded, "You have to ... contract with us." Johnson insisted that "no, we don't." Flach then stated that "well, I'll just call Rus- sell [Waldo] and we'll get this straight." That was the last time Flach and Johnson talked . (Tr. 23-24.) I dis- credit Flach's denial (Tr. 357) that Johnson ever made known to him "the majority wishes of the employees." (By his demeanor on the stand, Flach impressed me as being less than candid.) Thus, as Shop Steward Johnson credibly testified, he notified Cm Representative Flach that the Company's remaining bargaining unit employees were abandoning the Cm and were refusing to participate in any further negotiations between the CIU and the Company. After Flach informed Johnson that Flach would call President Waldo and "get this straight," Waldo began interrogat- ing the employees and threatening to discharge them if they went with Local 562. C. Interrogation and Threats President Waldo's first conversation with Steward Johnson after Johnson talked the second time over the R. WALDO, INC. telephone with CIU Representative Flach was an appar- ent effort to reconcile the differences between the CIU and the employees. This was about 2 days later when Waldo went in to the shop and told Johnson that "your business agent is going to be here at 9:30 to talk to you." Johnson responded that Flach is "not my business agent I have no reason to talk with him." Flach did not appear. (Tr. 29-30.) Sometime later Waldo began interrogating and threat- ening the employees. Waldo came out, walked to the back of the shop with Steward Johnson, and asked, "Bob, what's going on.... What are you going to do?" Johnson answered, "Well, Russell if I get a chance I am going to go with Local 562, the Pipefitters." Waldo stated that "If you go with the Pipefitters you are not going to work here any longer." Johnson then informed Waldo directly that the employees had abandoned the CIU and would not negotiate another CIU contract. He told Waldo: "Well, we all took a vote and we are not going to ... renegotiate a contract with the CIU." Waldo asked, "Who is we?" and Johnson told him, "Ev- erybody that works here." Johnson said he understood "that we was all going to go Local 562 after the fif- teenth" (of April), that "this is what you said." Waldo denied saying it. (Tr. 30-31.) About the same time (in late March or early April) President Waldo asked employee Steve Bailey in the back of the shop "what are you going to do about this deal?" Bailey asked, "what deal is that?" and Waldo said, "This union deal." Bailey answered, "I am going with the union," referring to Local 562. Waldo said that "if you do you won't be working here much longer." (Tr. 65.) Later, sometime in April, Waldo asked employee Joseph Seier in the shop "what I was going to do about this union thing that was coming up." Seier answered, "Russell, I am going to go with the Pipefitters." Waldo threatened, "Well, if you do you will not be working here." (Tr. 145-146.) President Waldo denied much of this credited testimo- ny. At one point (Tr. 306) he claimed that "Bob Johnson never told me that he wanted to go 562." But he later testified (Tr. 301): Q. Did you have any conversation with Bob Johnson at all about Local Union 562? A. I asked Bob what his problem was and he told me ... I want to go with that other union. He also admitted that employee Bailey told him that Bailey was going to Local 562 (Tr. 308): Q. Do you remember having a conversation with Steve Bailey concerning his desires to go into 562? A. Yes, I do. I asked him what he intended to do and he said he was going to and that was it. But then he retracted his admission and claimed that Bailey said, "Going to quit" and that "There was noth- ing said about 562 that day whatsoever." Regarding tell- ing anyone that if they went into Local 562 they would not be his employee anymore, he answered, "Yes, I might have told one that" and added: "I do not know 1241 who it was. I recall not saying 562, they said something about it and I said you would not work here. . . . I do not deny that I said that he probably would not be working here." But he claimed, "Meaning of that is I do not have that type of work." (Tr. 308-309.) By his de- meanor on the stand, Waldo appeared willing to fabri- cate any testimony that might help the Company's cause. I discredit the denials and his fabricated explanation of his meaning. I find it clear that President Waldo's threats to dis- charge the employees if they joined Local 562 were co- ercive and violated Section 8(a)(1) of the Act. I also fmd that under all the circumstances, particularly in the con- text of the discharge threats, the interrogation of John- son, Bailey, and Seier reasonably tended to coerce the employees and further violated Section 8(a)(1). Rossmore House, 169 NLRB 1176, 1177 (1984). D. Unlawful Renewal of CIU Contract 1. No employee ratification After CIU Representative Flach reported to President Waldo his telephone conversation with Steward Johnson about the employees voting in a meeting to abandon the CIU and after Flach failed in his attempt to talk to John- son at the shop, Flach tried to contact some of the other employees by telephone. None of them returned his call. Then, as he admitted (Tr. 328): Having that in mind where I did not have any suc- cessful contact, or did not have success in contact- ing and getting the men's demands together I pro- ceeded to renegotiate the contract. Admittedly without any authority from the bargaining unit (Tr. 347) Flach proposed to Waldo over the tele- phone that the contract be extended 3 years with a 50- cent wage increase each year, and Waldo agreed (Tr. 328-329, 331). This raised the journeyman rate to $11.43 in 1984, $11.93 in 1985, and $12.43 in 1986-far below the union rate of $16.95 in the Waldo, R. agreement. President Waldo was aware that Flach's 50-cent pro- posal was not authorized by the employees, knowing that Flach "had been trying to get a hold of them and they had not called him back." Waldo was also aware that Flach had no intention of calling a meeting of the employees at the shop to ratify the renegotiated agree- ment, as was done in 1981 . (In 1981, after meeting with the employees at a tavern and conducting a vote on con- tract proposals, the CIU representative met alternately with Waldo in the office and with employees in the shop one evening until the 1981-1984 agreement was negotiat- ed and ratified by the employees (Tr. 26-27).) Waldo tes- tified that "My understanding was [that the CIU] was to send out letters and ask for a vote" and if the employees "did not return [the letters] it was a yes vote." On 26 April Flach, as the "National Vice President" of the CIU, sent each of the eight bargaining unit em- ployees a letter (G.C. Exh. 4) claiming that "During the past few weeks the Union has held contract negotiations with R. Waldo, Inc." and that "The Company's final contract proposal to the Union is as follows": setting out 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 50-cent annual wage increase effective 16 April in 1984, 1985, and 1986. The letter had a ballot to mark at the bottom, to vote yes to accept or no to strike. As found, all eight of the bargaining unit employees had already abandoned the CIU. None of them returned the ballot, as they credibly testified (Tr. 24, 51, 66, 93, 146, 171, 186, 198, and 214). (All of them appeared to be testifying truthfully.) I discredit Flach's claim that one of the eight ballots was returned with a check in the yes block. The purported yes vote (R. Exh. 2) was offered into evidence without a return envelope, and Flach had no personal knowledge that the ballot was actually re- ceived through the mail. (Tr. 331, 333-334, and 353- 354.) I find that it was not the vote of any of the bar- gaining unit employees. When called by the Company as a defense witness, ClU Representative Flach testified that the CIU consti- tution does not require membership ratification and that "Yes, we do" occasionally enter into contracts without rank-and-file ratification (Tr. 327). He claimed, however, that in this case he did require a ratification vote and that the 1984-1987 agreement (G.C. Exh. 3) was ratified. After claiming that one of the eight ballots was returned with a yes vote, he theorized a ratification as follows (Tr. 332): Q. And by not receiving them all, how did you take that? A. That would not be counted as a vote... . Q. And you got one response. A. That is correct. Q. And that was in the affirmative to accept the contract? A. Yes. Thus President Waldo understood, when he and Flach agreed that ballots would be mailed to have the 3-year renewal ratified, that a failure to vote would mean a yes vote; whereas Flach theorized that nonvotes would not count and that the one purported yes vote carried the day. It is obvious that both President Waldo and CIU Rep- resentative Flach knew that the bargaining unit employ- ees had abandoned the CIU and did not ratify the 3-year renewal of the low-wage contract. Nevertheless Waldo and Flach proceeded to sign the 1984-1987 agreement (G.C. Exh. 3), containing union-shop provisions (art. II) forcing the employees to pay the $20 CIU monthly dues as a condition of employment. President Waldo's determination to continue dealing with the CIU regardless of the wishes of the employees is demonstrated by his conversation with employee Ken- neth Meyer on 30 April (the day Waldo discharged em- ployees Johnson and Bailey, as discussed below). Waldo asked Meyer in the shop which way he was going to go and Meyer answered that he did not have any choice. Waldo responded, "Well, you goddain right, you don't." Waldo then added "that the worst thing he ever done was sign a contract with [Local] 562 [in 1982]." (Tr. 91- 92.) 2. Concurrent bargaining with Local 562 Meanwhile, President Waldo misled Local 562 Busi- ness Agent O'Mara into believing that Waldo would not sign another CIU contract. Sometime in March (about a month or so before the CIU contract expired) O'Mara talked with Waldo to confirm their oral 1982 agreement that Waldo would permit the remaining employees to join Local 562 on expiration of the CIU contract. In this March meeting, as O'Mara credibly testified, Waldo "said he did not think they were qualified to come in. He would rather keep them in the CIU." They then dis- cussed the Local's national service contract; Waldo said he was interested; O'Mara said he would consult with his superior, see about it, and get back to him; and Waldo promised that "we would not do anything until I got back to him with the answer about the service contract." Although Waldo falsely denied much of O'Mara's cred- ited testimony, he admitted that these negotiations did take place by testifying that "What Jim O'Mara said on this stand [about the national service contract] was true" (Tr. 314). I find that Waldo's claim is obviously false that he did not know the majority of the employees wanted to become Local 562 members. At one place in his testimo- ny where he claimed, "I had no knowledge of [the em- ployees wanting to become Local 562 members]," he ad- mitted "I heard talk of it." When asked what he meant, he admitted that Waldo, R. employee Glen Carter, the Local 562 shop steward, "told me one day that those employees of the Company was going to become 562 members." (Tr. 291.) 3. Employee support of Local 562 The employees, as O'Mara further testified, "wanted to know when we were going to take them into the union." But before he and Waldo resumed their negotia- tions for a Local 562 agreement, the employees "re- ceived this letter to vote on the CIU contract and they were kind of betwixt and between. (Tr. 225.) "It then became apparent" to O'Mara that Waldo "was making them join a union they did not want to belong to any- more" (Tr. 249) and O'Mara proceeded to have them sign union authorization cards for Local 562 to represent them (Tr. 231). On 2 May he met with the employees and "everybody was ... more than agreeable" to sign the cards-including Johnson and Bailey, whom Waldo had discharged on 30 April for refusing to work on an out-of-town job without expenses (Tr. 17, 60, and 225- 227). These two former employees and five of the six re- maining bargaining unit employees signed the cards (G.C. Exhs. 5-11) in the absence of the vacationing em- ployee Dallas Glass, who later signed a dated card (G.C. Exh. 12) on 9 March when the others also signed dated cards. (Because the date had been inadvertently omitted from the 2 May cards, new cards had to be signed to support Local 562's 8 May petition in Case 14-RC-9856 (G.C. Exh. 2) for an election in a unit of 20 pipefitters employed by "Waldo Construction," referring to em- ployees of both the Company and Waldo, R.) Both President Waldo and CIU Representative Flach asserted that they signed the 1984-1987 agreement on 7 R. WALDO, INC. May (the day before Local 562's petition was filed). I assume that this was the actual date, despite the conflicts in their testimony concerning the circumstances of the signing and despite the question raised at the trial wheth- er the contract was backdated to precede Local 562's representation petition. 4. Concluding findings All the Company's bargaining unit employees were ex- pecting to become Local 562 members when the sub- standard CIU agreement expired 15 April 1984. Presi- dent Waldo had been operating a "split" shop since he set up a separate corporation in 1982 and transferred eight of his employees to it, to receive full union wages and benefits under a Local 562 agreement. All his re- maining employees were aware of his promise to operate an all-union shop after the expiration of the CIU agree- ment. By 1984, however, Waldo changed his mind and de- cided to continue dealing with the CIU and paying the low CIU wages and benefits-despite the employees' preference for Local 562. Although both he and CIU Representative Flach were advised that the bargaining unit employees had abandoned the CIU, they negotiated a 50-cent wage increase over the telephone and agreed to extend the 1981-1984 CIU agreement 3 years. Then after all the employees ignored the mail ballot to ratify the 1984-1987 CIU agreement, Waldo and Flach pro- ceeded to sign the agreement about 7 May, saddling the employees with the substandard wages and benefits for another 3 years and requiring them to continue paying the $20 monthly CIU dues as a condition of employment. The Company contends in its brief that the employees' preference for Local 562 rather than the CIU "was not made known to either Waldo or the C.I.U. until after Local 562 filed its representation petition on May 8, 1984." Similarly the CIU contends in its brief that it "conducted its negotiations and signed the new contract with the belief that it had a majority of the employees." In view of the credited evidence to the contrary, I reject these and their other clearly unfounded defenses. It is well established that an employer and a union vio- late Section 8(a)(1) and (2) and Section 8(b)(1)(A) of the Act if they sign a renewal contract when the union has lost its majority and both the employer and the union are aware of the loss of majority. Campus Housekeeping, 252 1243 NLRB 485, 488 (1980). Here, all the bargaining unit em- ployees had abandoned the CIU and all except one had signed authorization cards for Local 562 before 7 May (the date on the renewal contract), and both the Compa- ny and the CIU had been notified before that date that the CIU lost its employee support. I therefore find that the Company and the CIU committed these violations. It is also well established that an employer and a union violate Section 8(a)(3) and 8(bX2) if the renewal contract contains a union-shop provision requiring union member- ship as a condition of employment. Ibid. I therefore find that the Company and the CIU committed these viola- tions as well. CONCLUSIONS OF LAW 1. By signing a renewal contract that contains union- shop provisions after the CIU lost its majority support and after the Company and the CIU became aware of the loss of majority, (a) the Company unlawfully coerced and discriminated against the employees and gave unlaw- ful support to the CIU, and (b) the CIU unlawfully co- erced the employees and caused the Company to dis- criminate against them, engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (2), and (3), Section 8(bXl)(A) and (2), and Sec- tion 2(6) and (7) of the Act. 2. By interrogating employees and threatening to dis- charge them if they changed their membership from the CIU to Local 562, the Company further violated Section 8(a)(1). REMEDY Having found that Respondent Company and Re- spondent CIU have engaged in certain unfair labor prac- tices, I find it necessary to order them to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondents having unlawfully signed the collec- tive-bargaining agreement effective 16 April 1984 through 15 April 1987 containing union-security provi- sions, they must refund all moneys deducted from the employees' earnings under these provisions since 16 April 1984, plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]