Roman Iron Works, Inc.

ROMAN IRON WORKS Roman Ir on Works, Inc. and - Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO. Cases 29-CA-11792 and 29- CA-11860 14 January 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, STEPHENS, AND CRACRAFT On 12 June 1986 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent 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 excep Lions and brief and has decided to affirm the judge's rulings, findings, I and conclusions2 only to the extent consistent with this Decision and Order.3 This case evolves from "a history of litigation, the scope of which can rarely be matched in labor law history."4 The Respondent was last a party to a collective-bargaining agreement with the Union in 1975. The Respondent, then a member of a mul- tiemployer bargaining association, began negotiat- ing with the Union through the association shortly before the contract expired in 1975. The parties failed to reach agreement on a successor contract I We correct the following errors in the judge's decision. In the first paragraph of his decision, the judge inadvertently stated that the consolidated complaint in this proceeding issued 28 June 1982. The correct year is 1985. In sec. II,A, par. 1, the judge stated that the United States Court of Appeals for the Second Circuit ordered the Respondent to bargain indi- vidually with the Union 6 June 1983 The correct date is 7 June 1982. In sec. II,D, par. 9, the judge stated that the Respondent offered to provide a holiday on either election day or on a personal day. The Re- spondent's offer was in fact to provide "[e]lection day as an additional paid holiday and, effective January 1, 1985, one paid personal day per year." 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(5) and (1) by changing employees' wage rates unilaterally, we em- phasize that, contrary to the Respondent's contention, the Board's Order in Roman Iron Works, 275 NLRB 449 (1985), did not invite the Respond- ent to increase wages unilaterally at times other than during negotiations While the Older in that case specifically prohibited the Respondent only from unilaterally granting wage increases "during the course of collective bargaining negotiations," the Order was carefully tailored to the violation found-umlateral wage increases granted during the course of collective bargaining The Board neither stated nor implied that the Respondent was free to grant unilateral wage increases at any other time. a We shall amend Conclusion of Law 4 to conform to our findings and conclusions. We shall also amend Conclusion of Law 4 to delete, its refer- ence to changes in hours and working conditions. There is no contention, and no evidence, that the Respondent changed anything other than the employees' wages. We shall issue a new Order and notice to conform to the amended Conclusion of Law. ' 4 Roman Iron Works, supra, 275 NLRB at 449-450 The administrative law judge in the cited case more completely reviews the litigation histo- ry. 725 and, in July 1975, the Union struck. Following ex- tensive litigation involving the Board, the Re- spondent, and the Union, the United States Court of Appeals for the Second Circuit on 7 June 19825 ordered the Respondent to bargain individually, with the Union.6 That effort engendered, further unfair labor practice proceedings and, on 20 May 1985, the Board in Roman Iron Works, 275 NLRB 449, found that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing certain wage increases, but had not unlawfully engaged in surface bargaining as alleged. The parties' bargain- ing shortly before the Board's decision in that case issued prompted the unfair labor practice charges litigated in this proceeding. This case has issued simultaneously with Koenig Iron Works, 282 NLRB 717, because the Respond- ents' agents in both cases are the same and the par- ties bargained simultaneously regarding similar bar- gaining proposals. At the General Counsel's re- quest, and with the Respondents' consent, the judge consolidated the hearings in both cases, except that he reopened the hearing for additional evidence pertaining only to the Koenig case pursu- ant to additional charges filed only in that case. We agree ' with the judge that the Respondent violated Section 8(a)(5) and (1) by changing em- ployees' wage rates without affording the Union an opportunity to bargain about the changes; by im- plementing wage increases in excess of the amounts offered to the Union; and by withdrawing recogni- tion of, and refusing to bargain with, the Union as the exclusive representative of the Respondent's employees. We disagree, however, that the Re- spondent violated Section 8(a)(5) and (1) by "refus- ing . . . to recognize that a collective bargaining agreement had been arrived at" and "by refusing to execute a collective bargaining contract, embodying the terms of the agreement reached between Re- spondent and the Union." The negotiations that led to the most recent Board decision in this case, Roman' Iron Works, supra, 275 NLRB 449, began 18 August 1982 and ceased 5 January 1984. The Respondent made its last offer to the Union 28 July 1983 and finalized the offer 31- October 1983. That offer was, as the Board found in the earlier case, 7 complete save for a mechanism for determining cost-of-living wage adjustments. The final offer provided that the con- tract would terminate December 1987. Shortly before the Board's decision issued in the most recent case,, the parties reinstituted the negoti-, B As indicated, the judge, at sec II,A, par. I, of the attached decision, inadvertently stated it was 6 June 1983. 6 NLRB v. Koenig -Iron Works, 681 F 2d 130 (2d Cir. 1982). 7 Roman Iron Works, supra, 275 NLRB at 453 282 NLRB No. 101 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ations and met three times in 1985 in an attempt to reach agreement. According to Respondent Counsel Stanley Isra- el's uncontradicted testimony, Israel told Union President William Colavito in their first negotiating session, held 8 February 1985, that "under no cir- cumstances would the companies consider the prior expiration date." He further told Colavito, "If we were to use the old expiration dates we would have short term contracts." He said, "That's out of the question, and we're going to negotiate new term contracts from [this] point going forward."8 At the parties' next meeting, held 14 March 1985, Colavito "went over every point" with Israel in the Respondent's outstanding offer and present- ed a union counteroffer, which called for the con- tract to expire 30 June 1986. Colavito could not recall, however, whether he reviewed at that meet- ing the proposed contractual termination dates of the Respondent's 1983 offer. The judge found he had not. Israel opened the parties' final meeting, held 29 March 1985, by announcing that he no longer be- lieved the Respondent had a duty to bargain with the Union. Colavito initially protested, and then left the room to confer in private with Union Counsel Belle Harper. Harper wrote out a letter to Israel for the Respondent and Koenig which Cola- vito signed and handed to Israel. The letter stated: This is to advise you that Shopmen's Local Union #455 IABSOIW AFL-CIO, hereby ac- cepts the last contractual offer made by each of the above named employers [Roman and Koenig]. Accordingly, we now have a collective bar- gaining agreement. There is no dispute that the Respondent refused to enter into a contract with the Union and the record shows that the Respondent explicitly re- fused to do so by letter dated 29 March. A 'collective-bargaining agreement arises only after a meeting of the minds on all material terms.9 Both the Respondent and the Union in this case re- garded the duration of any new agreement as a ma- terial term. Thus, both the Respondent's finalized offer and the Union's counteroffer contained a pro- posed termination date. The Respondent, however, clearly withdrew that aspect of its offer when 8 The judge found that Israel: informed Colavito that his clients were dissatisfied with the prospect of short-term contracts resulting from the lapse of time since they had last negotiated, and that therefore new contract terms would have to be negotiated 9 Luther Manor Nursing Home, 270 NLRB 949 fn. 1 (1984), affd sub nom. Food & Commercial Workers Local 304A v. NLRB, 772 F 2d 421 (8th Cir 1985) Israel stated in the first negotiating session that "under no circumstances would the companies con- sider the prior expiration date." 1 ° The Respondent did not thereafter propose a specific termination date in lieu of the dates it rejected. Accordingly, when Colavito accepted the Respondent's offer on 29 March 1985, the offer lacked a material term, and his acceptance did not create a collective-bar- gaining agreement. The Respondent thus did not violate Section 8(a)(5) and (1) by refusing to recog- nize that an agreement had been reached and by refusing to execute a written document embodying its terms. I' AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4. "4. The Respondent violated Section 8(a)(5) and (1) of the Act by "(a) Changing its employees' wage rates without affording the Union an opportunity to bargain about the changes as the exclusive representative of the Respondent's employees. "(b) Implementing wage increases in excess of the amounts offered to the Union in collective bar- gaining. "(c) Withdrawing recognition of, and refusing to bargain with, the Union as the exclusive represent- ative of the Respondent's employees." REMEDY Having found that the Respondent has engaged in certain unfair labor ' practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to bargain with the Union on request and, if a complete under- standing is reached, embody the understanding in a signed agreement. Our Order should not be construed as requiring the Respondent to cancel any wage increase or other improvements in benefits without a request from the Union. See Elias Mallouk Realty Corp., 265 NLRB 1225 fn. 3 (1982). 10 We agree with the judge that the Respondent had not otherwise withdrawn its final offer . In adopting the judge's conclusion, however, we find it unnecessary to rely on his finding in sec II,D, par 5, of his decision, that the fact that Respondent Counsel Israel stated he would be the Respondent's only negotiating representative demonstrated that the offer had been withdrawn We rely instead on the other reasons the judge gave 11 Ridge Citrus Concentrate, 133 NLRB 1178, 1178-1179 (1961); Merce- des-Benz, 258 NLRB 803 (1981), Interprint Co., 273 NLRB 1863 (1985); see Trustees of Boston University, 228 NLRB 1008, 1010 (1977), enfd. 575 F 2d 301 (1st Cir. 1978), see generally H. K. Porter Ca v. NLRB, 397 U S. 99 (1970) ROMAN IRON WORKS 727 ORDER The National Labor Relations Board orders that the Respondent, Roman Iron Works, Inc., Green- vale, New York, its officers, agents, successors, and assigns, shall 1. Cease! and desist from (a) Changing its employees' wage rates without affording the Union an opportunity to bargain about the changes as the exclusive representative of the employees in the bargaining unit set out below in paragraph 2(a). (b), Implementing wage increases in excess of the amounts offered to the Union in collective bargain- ing. (c) Withdrawing recognition of, and refusing to bargain with, the Union as the exclusive represent- ati've of the Respondent's employees in the bargain- ing unit set out below in paragraph 2(a). (d) 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) On request, bargain with the Union as the ex- clusive' representative of the employees in the fol- lowing appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees of the Respondent, including plant clerical em- ployees employed at its plant, exclusive of office clerical employees, guards and supervi- sors as defined in the Act. (b) On request by the Union, cancel the unilater- al changes in employee terms and conditions of employment found unlawful herein. (c) Post at its Greenvale, New York facilities copies of the attached notice marked "Appen- dix." 12 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d),''Notify the Regional Director, in writing within 20 days from the date of this' Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT change your wage rates without affording the Union an opportunity to bargain about the changes as the exclusive representative of those of you in the bargaining unit set out below. WE WILL NOT implement, wage increases in excess of the amounts offered to the Union in col- lective bargaining. WE WILL NOT withdraw recognition of, and refuse to bargain with, the Union as the exclusive representative of those of you in the bargaining unit set out below. 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, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All of our production and maintenance em- ployees, including plant clerical employees em- ployed at our plant, exclusive of office clerical employees, guards and supervisors as defined in the, Act. WE WILL, on request by the Union, cancel the unilateral changes we made in your terms and con- ditions of employment that the Board found to be unlawful. ROMAN IRON WORKS, INC. Beatrice Kornbluh, Esq., for the General Counsel. Stanley ' Israel, Esq., and Diane Weinstein, Esq., of New York, New York, for the Respondent. William Colavito, Esq., of New York, New York, for the Charging Party. DECISION 12 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." STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This consolidated case was heard by me at Brooklyn, New York, on 12 November 1985. The consolidated 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, issued on 28 June 1982, is based on charges filed on 9 April and 22 May 1985 by Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (the Union). The Respondent, Roman Iron Works, Inc., is al- leged to have violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act (the Act) by unilaterally changing existing wage rates and conditions of employ- ment; granting wage increases in excess of increases of- fered by Respondent to the Union during collective bar- gaining; subsequently, after an agreement had been reached, refusing to execute a written contract; and withdrawing recognition of the Union. The Respondent interposed an answer denying the material allegations of the consolidated complaint. The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have been filed by the General Counsel and the Respondent. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION There is, no issue about jurisdiction, the Respondent having admitted the material facts alleged with respect thereto. At the pertinent times, Respondent, a New York corporation, maintained its principal place of business in Greenvale, New York, and engaged in the manufacture and distribution of metal products. During the year pre- ceding the issuance of the complaint, alleged as typical, it purchased and had delivered to it at Greenvale, from points outside New York, goods and materials valued in excess of $50,000. It is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent has admitted and I find that the Union is, and has been at all times material in this case, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background' The bargaining unit is composed of all production and maintenance employees of the Respondent, including plant clerical employees employed at its plant, exclusive of office clerical employees, guards, and supervisors as defined in Section 2(11) of the Act. Prior to, 1975, Roman had had a series of successive collective-bargain- ing agreements with the Union. For a while, Roman had joined with other companies in a multiemployer associa- tion for the purpose of bargaining with the Union, but it i The matters narrated without evidentiary comment are those facts found by me on the basis of admissions in the answer , data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony, and, in instances when conflicts in the testi- mony did not warrant discussion, the testimony which I have credited; and administrative notice which I have taken of the findings of an admin- istrative law judge, affirmed by the Board, which are referred to herein. has not entered into any agreement with the Union since 1975. In that year a strike took place. The Respondent replaced its unionized work force with new employees, ceased giving effect to the terms and conditions of the previous collective-bargaining agreement, and "in sum, basically operated as if it was a nonunionized company." Roman Iron Works, 275 NLRB 449, 450 (1985). On 6 June 1983, an order was made by the Court of Appeals for the Second Circuit directing Respondent to bargain on an individual basis with the Union. Negotiations were thereafter conducted for Respond- ent by its counsel, Stanley Israel, who also represented several other former members of the two trade associa- tions which formerly had handled negotiations with the Union., The Union was represented by its president, Wil- liam Colavito. Their meetings generally dealt with con- tracts for a number of the independent companies. Israel and Colavito met a number of times during the latter half of 1982 and throughout 1983 without reaching an agreement with respect to Roman. During the period from May through July 1983, without notice to the Union, Roman gave wage increases to its employees. By doing so, it violated an express commitment which Israel had given to Colavito on 18 August 1982, that no changes in wages or working conditions would be made without advance notice to the Union. Colavito filed unfair labor practice charges on 8 July 1983, on which hearings before an administrative law judge were con- cluded in May 1984. The decision, issued on 3 January 1985 and affirmed by the Board on 20 May 1985, held that Respondent had violated Section'8(a)(1) and (5) of the Act by unilaterally granting the increases without notice to and an opportunity for the Union to bargain with respect to them. Respondent was ordered to cease and desist from uni- laterally granting wage increases to employees during the course of collective-bargaining negotiations without notice to and consultation with the Union and, in the event negotiations resumed, to notify the Union of any proposed increases and that Respondent would withhold implementation pending impasse in negotiations or Union consent. Roman Iron Works, supra.2 For most of the period in which the case was pending, the negotiations between the parties were held in abeyance. B. The 1985 Negotiations 1. Reinstitution of the talks On 20 November 1984 Colavito wrote to Israel re- questing a meeting and suggesting 25, 26, and 27 Novem- ber as suitable meeting dates. On 26 November Israel re- sponded with the suggestion that they meet during the week of 24 December and requested that "[I]f, in fact, meetings are set up for that week, may we please have revised proposals (if any) in advance of the meetings." On 28 November Colavito wrote back suggesting a meeting earlier in December and declining to present proposals, stating, "We feel it is unnecessary to send re- 2 The administrative law judge dismissed an additional charge by the union to the effect that Respondent had not bargained in good faith since at least 8 February 1983. ROMAN IRON WORKS vised demands in advance of meeting; We are flexible on virtually all items and look for a reasonable discussion." He suggested that Israel call to set -an appointment by telephone. Instead, Israel again wrote, suggesting that Colavito send revised demands, if any, and suggesting a January date. On 4 December Colavito suggested 27 De- cember and, on 18 January 1985 , again proposed setting a date by telephone and suggesting 23 January . In addi- tion, in this letter Colavito requested information regard- ing the names, addresses, classifications, and rates of pay of any ` new employees who might have been hired and asked for a list of any increases or changes in benefits given to any employees on the payroll at the time infor- mation had last been furnished to the Union . On 22 Janu- ary Israel suggested 8 February . That is when they final- ly met. Colavito confirmed the date on 24 January. They held meetings on 8 February, 14 March, and 29 March 1985. The last offer which Respondent had made to the Union before the hiatus in negotiations was at the very end of 1983. On 28 July Respondent had sent the Union an update of its economic aspects. It offered a 5-year contract effective 1 January 1983; across-the-board cost- of-living increases on 1 June of each year of at least 60 cents per hour less any intermediate increases which might have been given; effective ' ,1 January 1984, 3 weeks' vacation after 10 years of service ; election day as an additional paid holiday and, effective 1 January 1985, one paid personal day per year; and one pair of work- shoes to be furnished per year . All other existing eco- nomic items were to remain unchanged. 2. Meeting of 8 February 1985 Only Colavito and Israel were present at the meeting on 8 February 1985 . Colavito noted the absence of prin- cipals, whose presence he had requested in one of his let- ters. He testified that he had wanted them there because the discussion frequently centered about individual work- ers and (according to him) the companies for whom Israel was negotiating had a practice of giving different increases to different employees. He wanted to ascertain the rationale for the different treatment . However, Israel announced that he, alone, would be conducting the nego- tiations on behalf of the companies. Israel also informed Colavito that his clients were dis- satisfied with the prospect of short-term contracts result- ing from the lapse of time since they had last negotiated, and that therefore new contract terms would have to be negotiated. Initially, Roman had wanted a 4- or 5-year contract term. Colavito professed to be unable to see any need to go into the matter, but raised the question of whether the resultant underpayments (his characteriza- tion) resulting from the lack of a contract during the time lapse would be made up by Respondent . Israel in- sisted on negotiating new commencement dates for the contracts with comparably long terms, and on bargaining forward from the date of the meeting. As Colavito had not received data requested in his let- ters and Israel wanted information about a union trust fund, they agreed to exchange the information a week before their next meeting. As matters actually worked out, data was exchanged on 26 February by hand-deliv- 729 cry -to -their respective offices when a meeting scheduled for that date was canceled. 3. Meeting of 14 March 1985 Colavito testified that he told Israel that he had a counteroffer but first wanted to review the Company's last offer point by point . He testified: I'd have to refer to my notes exacting point by point, but I went over every point and in each point he agreed that this was the last company's position on each point. Then I started to enumerate the last union offer and he said, look you don't have to go through your last offer . I just want to know and note your changes that you're -making on your last offer, so I didn't go through all that. I went through the counter offer we were presenting at this meeting. Israel testified that Roman 's last offer, finalized on 31 October 1983, consisted of terms which he had set forth in an "update" letter sent to Colavito on 28 July 1983. The proposals consisted of a major medical plan pro- posed by Respondent on 11 August 1983 ; a change of the proposed contract termination date to 30 December 1987; a change in the benefits payable under the major medical plan, to be effective in June 1984; and changes made in the meeting held on 31 October 1983, when a principal of the Respondent was present. The changes consisted of withdrawal of the offer of the additional paid holiday and personal day and substitution in their place of additional sick days, effective in January 1984; increase of the ,minimum amount of any hourly increases that might be granted from 60 cents to 65 cents; indica- tions of Respondent's willingness to consider entering the Union's welfare program if the costs of its own program could be maintained; and indications of willingness to employ the form of the Local 455 standard contract modified to meet Respondent's previous requests (in lieu of Teamsters Local 810 format previously favored by Respondent). The Union's counterproposal dealt with wages, wel- fare, sick leave, vacation, holidays, workshoes, training fund, severance pay, seniority, subcontracting, the mini- mum pay for various classifications, and the annuity fund, an item respecting which the Union adhered to its earlier demands. The Union dropped its pension fund demand, and demanded an expiration date of 30 June 1986. Israel explicitly rejected a number of these demands. He promised to get some information which Colavito said he needed but had not received. They agreed to meet again on 29 March, which was the earliest date Israel was available. 4. Meeting of 29 March 1985 Israel opened the meeting ' of 29 March with the an- nouncement that it would be short because he did not feel that Respondent was obligated to bargain with the Union further. Colavito pointed out that Israel had promised to get back to him on certain proposals which 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not been completely rejected at the previous meet- ing, but Israel simply repeated that he did not feel Re- spondent had an obligation to bargain. At that point or shortly thereafter, they were joined by Belle Harper, counsel for the Union . Colavito ap- prised her, in a private conference, of what had tran- spired. She wrote out a letter to Israel, in longhand, which Colavito signed and handed to Israel when he re- turned to the room. Dated 29 March 1985, the letter is referenced to Roman Iron Works and Koenig Iron Works, and reads as follows: This is to advise you that Shopmen's Local Union #455 IABSOIW AFL-CIO, hereby accepts the last contractual offer made by each of the above named employers. Accordingly, we now have a collective bargain- ing agreement. Very truly yours, William Colavito-Pres. Local 455 Ironworkers Union 10:40 A.M. 3/29/85 Colavito had still not received all the information he had requested respecting classifications of employees and had received no information regarding bonuses, but he testified that he did not feel that the lack of that informa- tion stood in the way of his accepting the Respondent's last offer.3 It is not altogether clear what Israel said when the letter of acceptance was handed to him. Both Colavito and Harper initially testified that Israel said only that he would answer it in writing; on cross-examination, Cola- vito testified that Israel also said that he, disagreed that there was a contract. Israel testified that he could not recall his exact remarks, but he thought that he respond- ed that from his point of view "obviously we don't have a contract. You can't accept something which doesn't exist." Whatever was said, however, it is clear from the testimony that prior to the time the letter was prepared by,Harper, Israel had made no explicit statement to the effect that Respondent's last offer, communicated on 31 October 1983, was no longer on the table , and that noth- ing was ever said: by Colavito indicating his intention to accept that offer until after Israel had declared that Re- spondent no longer had an obligation to bargain with the Union. 5. Economic data furnished Respondent's actions with respect to employees' wages and terms of employment are summarized in two pieces of correspondence, dated 15 February and 4 March 1985, as follows: a In his posthearmg brief, Respondent's counsel notes that, according to Harper's own testimony, she did not know the terms of the offer being accepted at the time she drew up the letter accepting it I attach no sig- nificance to, that fact. The letter of acceptance was signed by Colavito, for whom she acted as counsel and draftsman . Colavito was responsible for the negotiations, and he accepted the offer on behalf of the Union. When he did so, he had a thorough familiarity with the contents of the offer being accepted' No bonuses were given in 1984. Current medical coverage premiums per employee amounted to $101 .60 (family) and $38.05 (individual). Pension benefits of an employee named Rufus Zeigler amounted to $6,200 as of the end of 1983. Since 1 January 1984 no additional benefits had been granted. Wage increases given since 1 January 1984 to employ- ees currently on the payroll were as follows: Karl Sik Hired 5/15/84 at $10.00 Increased: 6/14/84-$ 10.50 7/25/84-11.00 11/8/84-12.00 Antonio Longobucco Hired 3/12/84 at $8.50 Increased : 11/8/84-$9.00 Vincent Mutarelli Increased : 2/16/84-$7.25 7/11/84-8.00 Rufus Zeigler Increased: 10/18/84-$11.50 Frank Cantelmi Increased: 7/12/84-8.50 E. Alleged Unilateral Changes in Wage Rates and Other Terms and Conditions of Employment and Changes Made in Excess of Those Offered the Union Data furnished by Respondent, which has just been summarized, shows that wage increases were given 'to several employees during 1984 in ascertainable amounts. Two employees, Zeigler and Cantelmi, are shown to have received increases in amounts which are not dis- closed. Increases given to Sik and Zeigler were given within the period of 6 months prior to filing of charges. None of the increases were granted after the Union wrote its letter requesting resumption of negotiations. The Respondent concedes that unilateral wage in- creases were granted . It concedes that some of them may have exceeded its'wage offers' to the Union. It neverthe- less presents several arguments to show that the in- creases were lawful. The first of these is that, though Roman previously of- fered a variety of increased benefits to Local 455, it only implemented a single wage increase , and the value of the increase was less than the overall value of the benefit package which it had offered the Union . I find this argu- ment untenable. No evidence has been furnished which establishes the value of the benefit package; no calcula- tion of the value of the benefits included in the package was even hinted at. The logic of the argument is faulty because the evidence clearly establishes an increase having been granted which exceeded that offered the Union. There is nothing to indicate that negotiations were proceeding in any fashion other than consideration of the various terms and conditions of employment singly, individually, or one by one. It is therefore only on such a basis that comparison can be drawn between the actions taken by Respondent and its offers to the Union with respect to any particular demand or offer. Respondent's major argument, however, is based on the Board's direction to it to cease and desist from [U]nilaterally granting wage increases to employees, during the course of collective bargaining negotia- ROMAN IRON WORKS 731 tions, without prior notice to and consultation with the Union... Respondent argues that at the time the wage increases were given, no negotiations were in progress , and that it was therefore free to grant the increases unilaterally and without notice to the Union, and did not thereby violate the Board Order. But, is it true that no negotiations were in progress? Respondent's counsel discusses this point in his posthear- ing primarily on the basis of the requirements of the Order. He asserts that the increases were given at a time when a total impasse had been reached in negotiations and neither negotiations nor communications were in progress, the Union having opl.ed for litigation. He also characterizes the "litigation," which consisted of pros- ecution of unfair labor practice charges before the Board, as "unsuccessful." He then notes that the Order was carefully drawn to allow for wage increases during the "impasse-litigation period, but prohibited the same as, if and when negotiations resumed." The trouble with this argument is that no one at the hearing attempted to prove the reason why there were no meetings in 1984. It is not even clear that it was the Union which impeded further negotiations, as contended in Respondent's posthearing brief. There is no evidence of a total impasse, or that negotiations were "terminat- ed." The burden of establishing that an impasse existed or that Respondent had a good-faith belief that an im- passe existed during the period when it was granting uni- lateral wage increases is on the Respondent. Merely breaking off negotiations does not prove impasse. See Cheney California Lumber Co. v. NLRB, 319 F.2d 375, 380 (9th Cir. 1963). The Respondent must have been warranted in assuming the futility of further good-faith bargaining. See Alsey Refractories Co., 215 ' NLRB 785, 787 (1974). The proof required to establish that parties have reached an impasse in negotiations has been described as follows: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement , the contemporaneous understanding of the parties as to the ' state of nego- tiations,- are all relevant factors to be considered in deciding whether an impasse in bargaining existed. Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. sub nom. AFTRA Kansas City Local v. NLRB, 395 1~.2d 622 (D.C. Cir. 1968). Many of the factors mentioned are hinted at in the tes- timony or other evidence in this case, but there is no clear picture of the circumstances which existed when Respondent made its final offer in October 1983 because there is no evidence at all in the record with respect to "the contemporaneous understanding of the parties as to the state of negotiations." I am left with the impression that though the Union was not accepting Respondent's offers, it did not indicate its position on any of them to be final and seemed merely intent on ' wringing further concessions. The difference is important. See Supak & Sons Mfg. Corp., 192 NLRB 1228, 1243 (1971). The cor- respondence a year later which set the,date for a further meeting contains no mention of impasse , of the unlikeli- hood of reaching an agreement or of any problem other than that of setting a meeting date . There is no evidence that on 31 October 1983 the negotiations had been dead- locked; the testimony is only that parts of Respondent's offer were rejected by the Union. That did not necessari- ly mean that negotiation on other open issues would have proved fruitless. There was, therefore, no deadlock and no impasse, for negotiations could have continued. See Chambers Mfg. Co., 124 NLRB 721, 725-726 (1959), enfd. 278 F.2d 715 (5th Cir. 1960). All that has been established in this case is that the parties negotiated until 31 October 1983; an agreement was not reached; thereafter unfair labor practice charges were litigated; and negotiations resumed when the Union wrote on 20 November 1984 requesting a further meet- ing. There cannot, in any event, be a finding of "impasse" in the instant situation because Respondent has been found guilty of committing a serious unfair labor prac- tice. Contrary to Respondent's contention,' the Union was successful to a substantial extent in its proceedings before the Board. The Respondent was found to have committed unfair labor practices by granting unilateral wage increases during the period from May through July 1983. Respondent's repetition of this very same offense in 1984 while the Union was prosecuting the unfair labor practice charges arising from Respondent's misconduct in 1983 cannot now be condoned because negotiations were interrupted. The interruption was not termination and was not impasse. What we are left with is the fact that the hiatus in ne- gotiations was concurrent with the pendency of the pro- ceedings before the Board; that the Union took the nec- essary steps to get the negotiations going again after ap- proximately a year; and that the Respondent exerted no effort in that direction . The hiatus was caused by the ne- cessity for the Union to prosecute unfair labor practice charges against the Respondent, and Respondent was found guilty of having committed some of the unfair labor practices charged. While the prosecution was pending, Respondent repeated the offense by granting wage increases to' employees . No claim, is made that they were granted pursuant to any plan of automatic increase or past practice. They were entirely discretionary with Respondent. The idea that the time taken out by the Union to prosecute the charges constituted an "impasse" during which Respondent could repeat the very offense charged is unthinkable. I conclude, on the basis of the foregoing, that negotia- tions were pending and were "in progress" throughout the period from 31 October 1983 through 20 November 1984, notwithstanding the failure of the patties to meet and agree on terms, and that Respondent was therefore not free, during that period, to grant unilateral wage in- creases. It did so, and it granted at least one increase that was in excess of the wage ' increase offered the 'Union. On 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both counts, Respondent violated Section 8(a)(1) and (5) of the Act. D. Alleged Unlawful Refusal to Execute Written Contract Colavito and Harper testified that they had decided to accept the Repondent's last offer some time prior to the meeting on 14 March. While they did not explain their failure to accept it on that date, it is clear that the reason was not Respondent's failure to furnish certain informa- tion that had been requested, inasmuch as it still had not been furnished on 29 March when the offer was accept- ed. They testified that they felt that negotiations had al- ready dragged on too long and should be brought to an end, and I credit that testimony. However, the Respond- ent contends that because the Union's hastily prepared written acceptance of Respondent's "last contractual offer" pertained to an offer that was no longer outstand- ing, no contract came into existence on 29 March 1985. The Respondent has not proved any statement or action by any person which can reasonably be interpret- ed as an explicit withdrawal of the offer as it stood on 31 October 1983. In this connection, Respondent argued that a letter which its counsel sent to the Regional Director on 8 May 1985, substantially after the events at issue, either constituted or proved withdrawal of the offer. In this letter, counsel asserted that Respondent's final offer, made on 31 October 1983, had been rejected by the Union and was therefore "off the table." He went on: Both offers were thus effectively rejected and "off the table" as early as 1983. If there were any doubt about the fact that the offers were not in effect in 1985, it was cleared up on February 8, 1985 when bargaining resumed. At that time I ad- vised Mr. Colavito that if new offers were to be made by these companies, expiration dates different than those previously offered would be involved, i.e., the companies, desired contracts expiring later than 1988 in the case of Koenig and later than 1987 in the case of Roman. There was considerable dis- cussion between the two of us on this point and Mr. Colavito inquired as to whether the companies would make additional payments to the employees for the past periods. I told him I would consider the matter. When we next met on March 14, 1985, I ad- vised that there would be no retroactive payments for the past years. Thus, at that point, the previous- ly rejected offers, calling for changes in 1983 and 1984 were impossible of performance and were no longer being discussed. This self-serving document is inconsistent with testi- mony which counsel gave during the hearing to the effect that new contractual termination dates were dis- cussed between Colavito and himself; he did not make any claim during the course of that testimony that he had insisted that new dates had to be agreed on as a con- dition to making of new offers by the Respondent. The letter shows, if anything, that the offer was not dead, for it contemplates the possibility of an affirmative as well as a negative response to the suggestion, of new contract termination dates, even in the face of a refusal of retroac- tivity. The very question of retroactivity could not have existed if only a negative response was possible. There could not have been good-faith bargaining without the possibility of two outcomes. If, in Respondent's contem- plation, the offer of 31 October 1983 was really dead, it could not have been resuscitated simply by changing the contractual expiration date, and there would have been nothing to discuss. Furthermore, counsel's assertion in the, letter that rejection of retroactivity made perform- ance impossible is not correct because partial perform- ance was still possible, as I have indicated elsewhere in this decision. It cannot be overlooked that the position taken in this letter is nowhere reflected in the extensive correspond- ence between Israel and Colavito in late 1984 and early 1985 regarding a date for a negotiating session. That cor- respondence contains not the slightest hint that the par- ties are doing anything other than picking up precisely where they left off on 31 October 1983. The basis on which talks were to be resumed is not even mentioned, undoubtedly because there was no need to talk about it; both parties obviously assumed the last offer was still on the table. The assumption is also implicit in Respondent's request for a statement of the Union's revised demands, if any, and the Union's decision not to furnish it. In re- sponse to Israel's request of 26 November 1984, Colavito responded, on 28 November: "We are flexible on virtual- ly all items and look for a reasonable discussion." The references to items and to reasonable discussion had to relate to the offer on the table. Israel's assertion in the letter of 29 November that he would. be the only repre- sentative of Respondent at the resumed negotiation also shows that both Colavito and he were speaking to each other with reference to the terms of the last offer by Re- spondent and that nothing startlingly new was expected to be advanced by either party. Respondent points to circumstantial factors which it claims demonstrate that the offer was withdrawn or could not,reasonably have been believed by the Union to be still outstanding. However, the circumstances on which Respondent relies are few and are all accompa- nied by countervailing circumstances. Respondent first points to the period of time ' which elapsed between the finalization of its offer, 31 October 1983, and its acceptance by the Union 29 March 1985. Respondent asserts that the hiatus was, so lengthy that the Union could not reasonably have believed the offer was still open. However, the hiatus, which I think must be deemed to have ended with the Union's letter of 20 November 1984 requesting a meeting, was taken up with litigation between the parties before the Board which ought properly to have been resolved before the talks continued, and the delay in getting started again until 8 February was due primarily to difficulties which Re- spondent's counsel had in setting a date. In fact, the, Union requested resumption of the negotiations while the unfair labor practices proceeding was still undecided. The parties went through a detailed, point, by' point, review of Respondent's offer on 14 March 1985. Not a ROMAN IRON WORKS 733 word ^ was said by Israel at that tithe' which suggested that anyone acting on behalf of Respondent thought the offer was withdrawn. If it had been withdrawn, their de- tailed review of it would certainly have been a pointless exercise. Except for the fact that the argument has been made by Respondent in this proceeding, it would seem almost unnecessary to add that on 14 March, while re- viewing Respondent's offer, neither Israel nor Colavito referred to the intervening interlude in terms of impasse. In the light of all the surrounding circumstances, I do not find that the evidence establishes the existence of a situation in which a union has failed to accept an offer within a reasonable time so as to justify the belief on the part of the employer that it was no longer under consid- eration by the Union. No "unconscionable" delay is in- volved here. See Worrell Newspapers, 232 NLRB 402, 407 (1977); Crown Cork & Seal Co., 268 NLRB 1089, 1090 (1984), remanded '756 F.2d 659 (8th Cir. 1985). Respondent also emphasizes the fact that by the time negotiations were resumed the effective dates of com- mencement of many of the benefits provisions had al- ready passed. Examples of the items involved were paid sick days, which were to become a benefit effective Jan- uary 1984; major medical coverage, due to begin in June 1984; a'3-week vacation to accrue after 10 years of em- ployment; and the offer of a holiday, which would be either election day or a personal day, to become effec- tive in 1983: Quite ^ obviously a portion of these benefits had been lost to the employees and the Union, perhaps irretrieva- bly if no agreement for retroactive payment could be worked out. A provision, for example, for furnishing a pair of shoes a year might be considered to have been lost completely for each year that had expired. Accrual of vacation after 10 years would similarly be set back. The Respondent views these as insurmountable prob- lems, at least in this proceeding, but Colavito testified that he did not. Important as these provisions are, the fact that some portion of their proposed effective periods had elapsed without the- contract being ' entered into cannot reason- ably be held to make the contract impossible of perform- ance. Patently, a partial peformance was possible as of 29 March 1985; it is even possible as of the- date of this deci- sion, for the original contract expiration date has not yet been reached. Colavito testified, credibly, that in accept- ing the offer he had in mind primarily the major parts of the contract. On cross-examination, Colavito conceded the obvious point that the dates had passed for some per- formances or the implementation of new programs, and that those provisions could only be effective for the re- duced period of the remainder of the contract period. He conceded that he had not considered the consequences of the abbreviated contract period for some of these items or the question of retroactivity -for the major medical program. His basic concept was that in an on-going rela- tionship difficulties caused by delay in implementation of these provisions would be minor and easily capable of resolution. He felt justified in this belief by the history of his dealings with Israel respecting another of the compa- nies for whom Israel negotiated, Koenig Iron Works, Inc. He testified without being controverted that in those negotiations, Koenig had offered an annuity program in 1983, and the contract provision was for pension contri- butions to begin 6 October 1983, but that Koenig's repre- sentative had said that it would become effective when the agreement was- signed. Though there was nothing in writing, it was agreed across the table that contributions would commence on execution of the agreement. Cola- vito also cited statements by .Respondent's counsel that Respondent would carry the medical coverage for the employees for 3 months, another provision which was not in writing. He contended that there was ample reason, therefore, to believe that once agreement had been reached on major items, details such as these could be worked out. Colavito was uncertain, in his testimony on cross-ex- amination, as to whether, during the review of Respond- ent's offer at the session of 14 March 1985, he had read off the effective dates of the proposals. I would conclude that he had not. It is a point which I regard of little sig- nificance, accepting, as I do, his testimony respecting his approach to the negotiations. Furthermore, some prob- lems were more apparent than real. Colavito believed that increases granted unilaterally during negotations had exceeded Respondent's offers to the Union, thus eliminat- ing any problem of retroactivity. No problem really arose with regard to an offer by Respondent to furnish one pair of workshoes per year; the effective date had not been discussed, and,Colavito was not sure that the item had even been agreed on. I find Colavito's testimony consistent with the practi- calities of the bargaining situation as it existed at the time. Furthermore, ' the mere fact that an offer contains proposed effective dates, as would be expected, does not make time of the essence in the contract negotiations. I credit Colavito's testimony that he viewed such matters as items which could be adjusted by ancillary agreements modifying the contract as broadly conceived and that the contract in this instance was, in all its major features, a viable contract insofar as he was concerned. I regard it as significant that Israel, having on 14 March 1985 agreed to a further negotiating session on 29 March 1985, based his refusal at the outset of the meet- ing to proceed with negotiations entirely on the asserted lack of any obligation on the part of Respondent to bar- gain with the Union. He never said that there was no proposal on the table for discussion. , .Accordingly, I find that the conduct and statements of the negotiators, in and, out of'the meetings; the conduct of negotiations by, Respondent's counsel in the absence of Respondent's principal or other representative; and the detailed, point-by-point review and recapitulation on 14 March 1985 of the offer made by Respondent as of 31 October 1983, all establish that that offer was still on the table and capable of acceptance by the Union. The Union's acceptance of 'it brought a contract into being. Of course, it was obvious from Israel's statements and conduct that Respondent would not sign such an agree- ment, which excused the Union from the necessity of ac- tually putting it in written form and presenting it' for sig- nature. Respondent having withdrawn= recognition, the Union was not required to perform a futile act. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Israel's assertion that no contract existed meant that none would be signed by Respondent . In refusing to exe- cute any contract embodying the terms of the collective- bargaining agreement, which had been arrived at, Re- spondent violated Section 8(a)(1) and (5) of the Act. E. Alleged Unlawful Withdrawal of Recognition The Respondent contends that it declined to bargain further with the Union because the Union no longer rep- resented a majority of the employees in the unit. Such concern by an employer to protect the rights of its em- ployees under the Act is frequently viewed with suspi- cion. See Brooks v. NLRB, 348 U.S. 96, 103 (1954). In justification of its action, which occurred on 29 March 1985, Respondent points to circumstances which it as- serts created doubt as to the Union's status as the repre- sentative of its production and maintenance employees. It cites the fact that in all the negotiations between it and the Union, no employees' committee ever sat in on a bar- gaining session; there were no strikes or job actions; and there was an apparent lack of communication or contact between the Union and the employees, judging from the Union's requests for information. These are not, however, the kind of objective facts which prove that the Union had ceased to represent a majority of the employees in the unit or which justify a reasonable and bona fide belief on the part of an employ- er that the Union had lost its majority. In this case, the evidence points in the opposite direction. Colavito testi- fied that he received reports from employees when a wage increase went into effect, though he did not have all the details regarding all the employees . If the matter seems obscure, it is because there is little evidence in the record on the point. But what there is, indicates that the Union continued to represent the majority. Notwithstanding its present stance, the Respondent seems to have thought so also, and at all the times that counted. The Board directed the Respondent to bargain with the Union as the representative of the employees in the unit. The Respondent did so, right up to and includ- ing 29 March 1985 . Negotiations that had lain dormant during 1984, pending the decision in proceedings brought before the Board regarding the Respondent and other companies whom Israel represented in negotiations with the Union, were resumed and proposals and counterpro- posals were discussed . In two of the three meetings held in 1985, Respondent negotiated with the Union without raising any question about the Union's right to represent the unit. Respondent furnished information in response to written requests from the Union dated 18 January and 24 January 1985 in the form of a copy of data furnished to Israel by Respondent by letter dated 15 February 1985 and by a letter from Israel to the Union dated 4 March 1985. In his posthearing brief, Respondent's counsel sets forth a tortured argument to the effect that the obliga- tion to bargain arose, not from a factual finding by the Board that there was a continuing relationship between the Union and the employees, but "purely from the need to fashion a remedial order rectifying violations of, the Act, committed a number of years ago." Even if that were true, and forgetting for the moment that if Re- spondent committed violations years ago it must assume all the consequences of its violations ,,however long they may reverberate, the fact remains that there is no evi- dence that circumstances have changed or that any valid reason exists to revoke the remedy. Compliance with a bargaining order is not in the discretion of the employer who has committed wrongdoing. Moreover, I am not at all certain that the finding of a continuing relationship arose "purely" from the necessity to fashion a remedy at a point in the remote past. The last decision rendered by an administrative law judge , which is pertinent, was issued as recently as 3 January 1985 and was affirmed by the Board on 20 May 1985 . It directed Respondent to cease and desist from refusing to bargain collectively with the Union by unilaterally granting wage increases to employees during the course of collective -bargaining negotiations and Respondent was directed to notify the Union of any proposed wage increases. The uncontroverted evidence in the record is that the parties resumed negotiations in February, after an ex- change of correspondence in which no question of rec- ognition was raised at all; this by itself suffices to prove that Respondent recognized the Union as the representa- tive of the employees in the unit. Thus, the Respondent negotiated with the Union on the basis of its recognition of the Union as the collective- bargaining representative of the employees in the unit and furnished information in response to written requests from the Union as late as 4 March 1985. Thereafter, Re- spondent promised to furnish still more information. Harper testified that on 14 March 1985, the discussion re- specting Respondent ended with Israel's agreement to get back to Colavito on some of the union counterpro- posals which he had not rejected completely. Therefore, whatever happened to change the Respondent's ideas about the Union's right to bargain for the unit had to have occurred between the end of the meeting on 14 March 1985 and the beginning of the meeting on 29 March. That is the period of time as of which Respond- ent's good faith in asserting doubts regarding the Union's right to represent the employees must be determined. NLRB v. Windham Community Memorial Hospital, 577 F.2d 805, 811 (2d Cir. 1978), enfg. 230 NLRB 1070 (1977); NLRB v. Washington Manor, 519 F.2d 750, 753 (6th Cir. 1975). The Respondent offered no evidence to show that a change had truly occurred. On the contrary, Israel testi- fied that he made telephone calls from the meeting to obtain information that Colavito wanted about a Roman employee named Rufus Ziegler , and testified that he may have made telephone calls to get information on 29 March. He was not sure whether it was the meeting of 14 or 29 March. That would mean that the right of the Union to information, and Respondent's obligation to furnish it, was still recognized as late , possibly, as 29 March, a, position altogether inconsistent with the Re- spondent's present contention that there was no obliga- tion to bargain. Respondent seemed to base its attempted justification for withdrawing recognition on supposed facts which are not in evidence or upon facts in evidence which do not ROMAN IRON WORKS support its position. Israel testified 'that he told Colavito on 29 March that after reviewing the decision of the ad- ministrative law judge, which had been issued on 3 Janu- ary 1985 "and based on what I had observed now for a couple of years and in these negotiations, we had no fur- ther obligation to bargain." He never spelled out What he had observed over the course of the preceding 2 years or in the current negotiations which purportedly discharged the obligation to bargain; why such observa- tions had not been pressed on the Board, or, if they had been, why the Board had not been impressed; or why, in view of that background, he had entered into negotia- tions at all in 1985. Certainly, the administrative law judge's decision provides no justification for discontinu- ing negotiations and is not even cited in Respondent's posthearing brief as justification for the withdrawal of recognition. It is asserted in Respondent's posthearing brief that both sides sat down on 29 March with the understanding that there was no obligation on the part of either to bar- gain. However, Respondent's counsel had testified that when he expressed his view in that regard, Colavito pro- tested vehemently: Bill said why didn't you tell me this? Why didn't you tell me this back in November and I said A) in November we had no decisions. I said to him quite frankly we the companies and I have been mulling this thing over, what are our rights and this is the conclusion we finally come to. Respondent's counsel testified that he also pointed out to Colavito that "we have no evidence whatsoever at this point in time that 455 actually represents the em- ployees." He cited the absence of employees from any of the bargaining sessions, the absence of strikes or job ac- tions, and made reference to the asserted fact that, "There's all sorts of petitions to decertify and to go to other unions." But the burden at that point in time was not on Cola- vito, who in any event responded promptly that he did represent the employees and was not obligated to bring them to the bargaining sessions. The burden was on the Respondent to show justification for its withdrawal of recognition, either by evidence that the majority had in fact evaporated or that Respondent had a good-faith doubt of the continuance of the Union's majority, based on objective considerations. The Union enjoys a rebutta- ble presumption that the majority continued. Stratford Visiting Nurses Assn., 264 NLRB 1026 (1982). The failure of any of the decertification petitions to become effective would seem to be the kind of circumstance that would suggest to an employer that they did not have wide- spread support and that the Union still represented a ma- jority of the employees in the unit. The mere fact that a decertification petition is filed is insufficient to afford reasonable doubt of the continuance of the Union's ma- jority; proof is needed that the petition was favored by a majority of the employees. Dresser Industries, 264 NLRB 1088 (1982). 735 CONCLUSIONS OF LAW 1. The Respondent, Roman Iron Works, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union, Shopmen's Local Union No. 455, Inter- national Association of Bridge, Structural and Ornamen- tal Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is the collective bargaining representa- tive of the following appropriate unit within the meaning of the Act: All production and maintenance employees of the Respondent, including plant clerical employees em- ployed at its plant, exclusive of office clerical em- ployees, guards and supervisors as defined in Sec- tion 2(11) of the Act. 4. The Respondent violated Section 8(a)(1) and (5) of the Act: (a) By refusing, on 29 March 1985, to recognize that a collective-bargaining agreement had been arrived at by reason of the Union's acceptance of the Respondent's comprehensive contractual offer of 31 October 1983 and by refusing to execute a collective bargaining contract embodying the terms of the agreement reached between Respondent and the Union. (b) By implementing changes in wages, hours, and working conditions of employees in the unit, without af- fording the Union an opportunity to negotiate and bar- gain as the exclusive representative of the Respondent's employees with respect to such changes. (c) By implementing wage increases in excess of the amounts of increases offered by Respondent to the Union during collective bargaining. (d) By withdrawing recognition of and refusing to bar- gain with, the Union as the exclusive collective-bargain- ing representative of the unit. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(1) and (5) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that Respondent be directed to execute, on request by the Union,' a collective-bargaining contract reflecting the agreement arrived at when the Union ac- cepted the Respondent's contract offer of 31 October 1983. Because of the nature of the Respondent's other violations of the Act, whereby it changed existing wage rates and, in at least one instance , granted a wage in- crease to excess of the amount of increase offered to the Union during negotiations, I shall recommend that in any job category where Respondent is currently paying more than the wage rate offered to the Union and agreed to in the contract, the offer and the contract shall be deemed modified to reflect the higher wage rate. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A special provision must also be made with respect to the duration of the contract. Had the contract been drawn up and executed within a reasonable period of time after 29 March 1985, when the Union accepted Re- spondent's outstanding contract offer, the contract would have had an expiration date of 31 December 1987 and would have had a total duration of 2 years and 9 months. The time which has elapsed during the pendency of the instant proceedings should not be lost to the parties. Ac- cordingly, I will recommend that the contract, when signed, have a fixed duration of 2 years and 9 months from the date on which it is executed. [Recommended Order omitted from publication.]