Becker'S Glass Shop, Inc.

BECKER'S GLASS SHOP Becker's Glass Shop, Inc. and Painters, Glaziers and Allied Trades Local 260, affiliated with the International Brotherhood of Painters and Allied Trades. Case 19-CA-18693 14 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFr On 30 April 1987 Administrative Law Judge Joan Wieder issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions, a supporting brief, an answering brief, and a motion to strike. 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 and to adopt the recommended Order as modified. i The General Counsel has requested that we strike certain portions of the Respondent's exceptions 1, 3, and 4 and all of exceptions 2 and 7 be- cause they contain references to facts that were not introduced as evi- dence in this case The General Counsel correctly points out that there is no evidence in the record that the Respondent's business was closed by the Union's picketing, that PPG Industries historically sent a representa- tive to the bargaining sessions between the Union and the Billings Con- tractors' Council, that the Union reached agreement with PPG Industries on a contract (although the record does show that the Union negotiated with PPG) and withdrew its pickets from PPG, that the Union continued to strike Associated Glass and D & D Door after withdrawing its pickets from the Respondent, and that the Union and D & D Door reached agreement on a contract Therefore , we grant the General Counsel's motion to strike any references in the Respondent 's exceptions and brief to these matters However, we deny the General Counsel 's request to strike Respondent's exception 2 as there is evidence in the record sup- porting that exception (see In 2, infra). We emphasize , however, that the exhibits the Respondent cites as support for exception 2 (BE Exhs. 2 and 3) were not introduced as evidence and were not considered in reaching our decision in this case 2 The Respondent excepted to the finding at In 3 of the judge 's deci- sion that the Respondent was a member of the Billings Contractors' Council (Council) We find merit in this exception The only evidence in the record addressing this issue is the testimony of the Council's former executive director, James Lechner, stating that, as far as he knew, the Respondent abided by the terms of the collective-bargaining agreement effective 21 September 1985 to 20 September 1986, as an individual party The record also established that the other members of the Billings and Vicinity Glazing Contractors Association (Associated Glass and D & D Door) signed the 21 September 1985 to 20 September 1986 contract, but it is unclear whether they did so as individual parties or as members of the Council In any event, it is clear that the Respondent , Associated Glass, and D & D Door were members of the multiemployer bargaining unit called the Billings and Vicinity Glazing Contractors Association (As- sociation) As the evidence fails to establish that these employers were members of the Council , we do not rely on the judge's finding that they were historically represented by Lechner in collective bargaining with the Union The evidence does establish , however, that Lechner was au- thorized to represent the Association in collective bargaining 789 AMENDED REMEDY 1. Substitute the following for the third para- graph of the Remedy. "The Respondent shall make whole its employ- ees in the aforesaid bargaining unit for any loss of pay which they may have suffered by reason of the Respondent's untimely and unlawful withdrawal from the Association; repudiation of the collective- bargaining agreement in effect between the Asso- ciation and the Union, and withdrawal of recogni- tion from the Union, in a manner consistent with Board policy as set forth in Ogle Protection Service, 183 NLRB 682, 683 (1970),3 with interest as pre- scribed in New Horizons for the Retarded 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Becker's Glass Shop, Inc., Billings, Mon- tana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. Insert the following as paragraph 2(d) and relet- ter current paragraph 2(d) and all subsequent para- graphs. "(d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3 If it is determined in the backpay proceeding that the Respondent owes contributions to employee trust funds, any additional amount owed on such contributions is calculated in accordance with Merryweather Opti- cal Co, 240 NLRB 1213, 1216 fn 7 (1979) " In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987 ), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Max D. Hochanadel, Esq., for the General Counsel. Edward F. Becker, pro se, and James F Lechner, Labor Relations Consultant, for the Respondent. Robert L. Maxwell, Special Agent, for the Charging Party. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This case was tried in Billings, Montana, on 26 February 1987. On 285 NLRB No. 101 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 October 19861 Painters, Glaziers and Allied Trades Local 260 affiliated with the International Brotherhood of Painters and Allied Trades (the Union or Charging Party) filed a charge alleging that Becker's Glass Shop, Inc. (Respondent or Company) violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amend- ed. Pursuant to an investigation of the charge, Region 19 issued a complaint on 2 December. Specifically, the complaint, as amended at trial, alleges that Respondent violated Section 8(a)(5) and (1) of the Act by: sending the Union a letter, with a copy to a mul- tiemployer association of which it was a member, stating it had withdrawn from the Association; would not be a party to further negotiations or contracts; was "changing from a corporation to a sole proprietorship"; and was withdrawing recognition of the Union and becoming nonunion. These actions were taken without the consent of the Union, and at a time when the collective-bargain- ing agreement between the Association and the Union had renewed for another year. The complaint further alleges that about 14 October, Respondent, in furtherance of the unlawful withdrawal from the Association, informed its employees by letter that "if you want to work for me, you will have to `Resign' from Local #260 Union." All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Timely briefs were filed by the Company and the Gener- al Counsel. Both have been carefully considered. On the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent is a Montana corporation with an office and place of business in Billings, Montana, where it is and has been engaged in the business of installing glass. Respondent admits that it hired James F. Lechner to rep- resent and negotiate with the Union on its and two other employers' behalf. This group of three employers is known as the Billings and Vicinity Glazing Contractors Association (Association). The three members of the As- sociation met and negotiated with the Union twice. I find that at the times here pertinent, Respondent had un- equivocally indicated in intention to be bound by the Association's actions. R. J. Causey Construction Co., 238 NLRB 52 (1978). Respondent admits, and I find, that the Association members collectively, during the past 12 months, which period is representative of all times material herein, in the course and conduct of their business operations of the retail and wholesale sale and installation of glass, had gross sales and services valued in excess of $500,000. Re- spondent further admits that during the same time period the Association members, in the course and conduct of their business operations, purchased goods and caused to be transferred and delivered to their facilities within the ' All dates are in 1986 unless otherwise indicated State of Montana, goods and materials valued in excess of $50,000 directly from sources outside the State of Montana, or from suppliers within the State which, in turn, obtained such goods and materials directly from sources outside the State of Montana. Upon the pleading and the evidence , I find that, at all times material herein, Respondent was a member of the Association and authorized the Association to represent it in collective bargaining with the Union. Respondent's claim that its withdrawal from the Association warrants consideration of its revenues only is found to be without merit, for the reasons stated below. I further find that the Association and its employer-members, including Re- spondent, are, and have been at all times material herein, employers within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent admits, and I find, that the Union is now and has been at all times material herein a labor organi- zation within the meaning of Section 2(5) of the Act. During the term of the predecessor agreement, Local Union No. 167, the signatory employee representative, merged with Local No. 260. On the record, Respondent admitted that Local No. 260 and its predecessor have been the lawfully designated exclusive collective-bargain- ing representative of the appropriate employee unit and has been so recognized by the Association, including Re- spondent. There is no allegation that the merger changed the representational status or ability of the Union. The Association met with Local No. 260 after the agreement expired and clearly voluntarily recognized it as their em- ployees' collective-bargaining representative. It was not claimed that the merger in any manner relieved the As- sociation from its bargaining obligations. It is undisputed that Local 260 represents a majority of Respondent's and the Association's employees . Respondent has failed to adduce any evidence that the merger abrogated its obli- gations attendant to that voluntary recognition . Fertilizer Co. of Texas, 254 NLRB 1382 fn. 2 (1981); Moisi & Son Trucking, 197 NLRB 198 fn 2 (1972). There is no evi- dence placing Local 260 out of the ambit of the Board's decision in Montgomery Ward & Co., 137 NLRB 346 (1962), wherein the union was found to have resulted from the evolution or reorganization of the representa- tive and as such inherited the powers, assets, and mem- bership of the contracting union. There is no basis to find the Union was substantially transformed by the merger or other factors to override the Association's vol- untary recognition of Local 260 as the representative of the employees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company is a wholesale and retail installer of glass. Ed Becker Sr. is the president of the Company. He is admittedly a supervisor within the meaning of Section 2(11) of the Act and an agent within the meaning of Sec- BECKER'S GLASS SHOP 791 tion 2(13) of the Act The employees were in a unit ad- mittedly appropriate within the meaning of Section 9(b) of the Act.2 As noted above, Respondent denied the Board has ju- risdiction, claiming its withdrawal from the Association about 9 October, after it twice met with and informed the Union through its representative, Lechner, that the contract, on its terms, had been renewed, was effective to defeat the jurisdictional claim. These meetings oc- curred on 23 and 25 September, several days after the prior agreement expired on 20 September. It is not claimed that the multiemployer unit is inappropriate. The unit is similar to a predecessor organization that negotiat- ed the prior collective-bargaining agreement.3 On 28 August, Lechner sent the Union a letter stating that he represented Associated, D & D, and Respondent. He also advised the Union that he should be advised of the Union's plans for a meeting. Finally, he informed the Union that the Association considered the agreement to have been renewed by its terms since the Union failed to properly open the agreement for further negotiations.' z The unit includes All glazier ,journeymen, residential installers and apprentices, but ex- cluding all other employees, guards and supervisors as defined in the Act Three contractors, Respondent, D & D Door and Glass, and Associ- ated Glass Company, were members of the Glazing Contractors of the Billings Contractors Council (Council) The glazing contractors with- drew from the Council in early spring 1986 Lechner was the director of the Council and negotiated and represented the members of that unit About 5 to 6 weeks prior to the expiration date of the contract on 20 September, the same three employers, D & D, Associated, and Respond- ent, formed the Association and agreed to have Lechner continue his rep- resentational duties on their behalf There is no claim that this apparently coextensive unit of glaziers somehow abrogated Respondent's collective- bargaining obligations * Art XVI of the prior collective-bargaining agreement provides Duration of Agreement A This Agreement shall become effective September 21, 1985, and shall continue in full force and effect without change through September 20, 1986 This Agreement shall continue in effect after September 20, 1986, from year to year, unless sixty (60) days prior to the date of expiration either party gives notice to the other party in writing that it desires to change or terminate, if either party gives such notice timely, the other party shall then have thirty (30) days within which to give notice on its part to change or terminate this agreement Said notice shall be by Certified Mail B Answering notices must be served in writing upon the opposite party within ten (10) days from the mailing date of the original notice C The issues as framed by notice and counter-notice as above specified, shall be the only subjects open for discussion and agree- ment during any following negotiation, conciliation, arbitration and hearing D The Employer and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with re- spect to any subject or matter not specifically referred to or covered in this Agreement, even though such matters or subjects may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement Lechner, on 28 August, informed the Union that it failed to specify the proposed amendments and modifications to the agreement as required in the contract and that the only item open for consideration was the Union's change of name There is no indication the change of name was the subject of any negotiations during the two negotiating sessions It is this position by the Association that the Union used as the basis for filing charges for which the General Counsel determined did not form a basis for the issuance of a complaint The General Counsel's decision was not The Association has consistently maintained that the prior agreement, by its terms, continued for another year since the Union did not properly open negotiations. As I found above, the Association was a multiemploy- er bargaining unit for it was admittedly consensually formed and its actions constituted an unequivocal mani- festation by its members, who were present at the two meetings with the Union, that they would be bound by their representative's actions. Kroger Co., 148 NLRB 569 (1964). Another consideration is these same employers had historically been represented by Lechner for their collective bargaining with the Union. Lechner clearly in- formed the Union that he had been delegated the author- ity to represent the members of the Association. The Union was present at these meetings and did not question the appropriateness of the Association, which indicates its assent to the Association's representative status. Au- thorized Air Conditioning Co. v. NLRB, 606 F.2d 899 (9th Cir. 1979); United Steel Erectors, 283 NLRB 314 (1987). Respondent did not attempt to withdraw from the multiemployer unit until after multiemployer negotiations had commenced. After Lechner informed the union ne- gotiators that the employer unit would not bargain about terms and conditions of employment and suggested that the Union seek Board determination of the correctness of this position, the Union called a strike about 27 Septem- ber. As noted above, the Union, following this sugges- tion, filed unfair labor practice charges in Cases 19-CA- 18643 and 19-CA-18644, alleging the Association's posi- tion was violative of the Act. After investigation, the Acting Regional Director informed the Union he refused to issue a complaint. The Union appealed this decision and the appeal was denied. On 9 October, Becker wrote several letters. One of these letters was sent to the Union advising that Re- spondent was withdrawing from the Association. Re- spondent also advised the Union that he would not be a party to any collective-bargaining agreement the Asso- ciation may negotiate with the Union. The Company stated it intended to "be reorganized under `Open Shop' Glazing and Retail Sales & Service." Respondent gave as the reason for its decision "[t]he position the economy is in this area, and the competition from the dozen or more glass shops that are of 'Open Shop' type, has forced me into the open shop type of Glass Shop. Furthermore, I'm changing from a Corporation to a Sole Proprietorship rather than declare Chapter 11 of the US [sic] Bankrupt- cy Laws." On the same date, Becker wrote Lechner and advised him that he resigned from the Association. There is no indication that the Association approved this with- drawal request. Apparently, the Association has no formal rules or written bylaws. Once actual negotiations have begun, as occurred in this case on 23 and 26 September, Respondent could withdraw from the multiemployer unit only by mutual consent or under unusual circumstances. Retail Associates, 120 NLRB 388 (1958); Teamsters Local 378 (Capital Chevrolet), 243 NLRB 1086 (1979). The record is clear questioned on this record and there are no grounds presented herein to alter this finding 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and unequivocal that Respondent never sought, no less received, approval from the Union and Association to withdraw from the multiemployer bargaining unit. I fur- ther find that Respondent has failed to demonstrate that the requisite unusual circumstances prevailed to permit unilateral withdrawal from the Association . Even if the Company could withdraw from the Association, it did not establish a legal basis for withdrawing recognition from the Union. While Becker mentioned bankruptcy, he did not file for bankruptcy nor did he adduce any evidence that would indicate the Company was in dire financial straits or under other threat to its existence. Hi-Way Billboards, 206 NLRB 22, 23 (1973), enf. denied 500 F.2d 181 (5th Cir. 1974); Atlas Electrical Service, 176 NLRB 827 (1969); and Charles D. Bonanno Linen Service, 243 NLRB 1093 (1979), enfd. 630 F.2d 25 (1st Cir. 1980), affd. 454 U.S. 404 (1982). The strike by its employees did not justify the Company's withdrawal from the Association and ter- mination of its recognition of the Union as its employees' bargaining representative . State Electric Service, 198 NLRB 592 (1972), enfd. 477 F.2d 749 (5th Cir. 1973), cert. denied 414 U.S. 911 (1973); Charles D. Bonanno Linen Service, supra . Becker mentioned that there was a decline in business but, as previously found, this was not shown to have caused economic difficulties sufficient to permit unilateral withdrawal from the Association. Serv- All Co., 199 NLRB 1131 (1972), enf. denied on other grounds 491 F 2d 1273 (10th Cir. 1974). Respondent admits it has not dissolved the corporation to continue the business as a sole proprietorship as of the date of hearing herein. Respondent contends the strike constituted an impasse, which warranted its withdrawal from the Association. This position is antipodal to the successful stance taken by the Association that on 20 September the contract was, by its terms, renewed for another year . Thus, there could not be an impasse, for there could be no contem- poraneous understanding of the parties as to the state of the negotiations. Taft Broadcasting Co., 163 NLRB 475 (1967). Assuming arguendo that the parties were still bargain- ing at the time of the strike , the strike did not necessarily create an impasse . Marriott In Flite Services, 258 NLRB 755 (1981), enfd. 114 LRRM 2568 (2d Cir. 1983), cert. denied 464 U.S. 829 (1983). In this case, if there was an intransigence to bargain , it was based on the Associa- tion's good-faith belief that the collective-bargaining agreement had been renewed by operation of the con- tract's terms and that any difference in interpretation should be resolved by the Board . Since the deadlock concerns terms that do not constitute bargaining, it cannot be held to privilege Respondent 's actions. See, generally, Cauthorne Trucking, 256' NLRB 721 (1981), enfd. in part 691 F 2d 1023 (D.C. Cir. 1982); R. A. Hatch Co., 263 NLRB 1221 (1982).5 Also the existence of an s Even if impasse is found, "an employer can only make unilateral changes in working conditions consistent with its rejected offer to a union " Allen W Bird II, Receiver for Caravelle Boat Co, 227 NLRB 1355 (1977) Thus, an impasse would not give the employer an imprimatur to withdraw from the Association Triple A Maintenance Corp, 283 NLRB 44 (1987) impasse does not terminate the duty to bargain. As the Board held in Central Metallic Casket Co., 91 NLRB 572 (1950), impasse does not give the employer a warrant to take any action amounting to withdrawal of recognition of the union's representative status An impasse is insuffi- ciently destructive of multiemployer bargaining to justify the unilateral withdrawal of an employer from the unit. Hi- Way Billboards, supra. See also Charles D. Bonanno Linen Service, 229 NLRB 629 (1977), affd. by the full Board on rehearing , 243 NLRB 1093 (1979), enfd. 630 F.2d 25, affd. 454 U.S. 404 (1982). Respondent also claims that since its employees all re- signed from the Union , the Union was no longer their representative and the Company could repudiate the contract. I find this argument to be without merit. Re- spondent informed the Union on 9 October that it with- drew from the Association, and "Since my intent to go into an Open Shop Glass Shop is fully understood by this letter, there should be no need for any further corre- spondence on this matter." On the same date Respondent sent its employees the following missive: I have notified, by Certified Mail, to the two concerns listed above, Local #260 and the Billings Contractors Council (which is negotiating this Glaz- ing Contract) that I have resigned from this organi- zation, and I will not be a signature [sic] to any Glaziers Contract. Becker's Glass Shop, Inc. will be an "Open Shop" Glass & Retail Glass & Paint Sales & Service [sic]. If you want to work for me, you will have to "Resign" from Local #260 Union . Please contact me as soon as possible as to what you intend to do, so I can make future arrangements. The Company argues that the letter was written in re- sponse to several inquiries from the employees about how they could return to work after participating in the strike Becker said he was concerned that if the employ- ees crossed the picket line they could be subjected to large fines by the Union . This argument is not supported by the record . The letter does not mention union fines. Also, Becker's testimony discusses his conversations with employees, but does not mention his or the employees' concern of being fined. On the contrary , this testimony adds to the coercive nature of the letter. For example, Becker testified that, about 1 week after the picketing commenced, the employees inquired how they could return to work . Becker "told them if they want to go back to work they would have to resign or withdraw from the Union or I'd have to make different arrangements and hire some scabs or carpenters or some- thing." The employees did not return to work immedi- ately and Becker, on or about 13 October, told them when the employees again approached him "Well, you got that letter from me on the 9th that if you want to go to work you would have to resign ." The employees then informed Becker that "They would resign so they could have a job." About the same time, the Union stopped picketing. At no time did Becker testify he told the employees their resignation from the Union would be advisable to BECKER'S GLASS SLOP 793 avoid a fine for crossing the picket line. The letter and his statements to the employees made resignation from the Union a condition precedent to their going back to work and their failure to resign would result in his hiring strike replacements. There is no vestige of any eleemosy- nary motive in his comments or other evidence of record. Accordingly, based on demeanor, admitted facts, and inherent probabilities, I conclude that Respondent never indicated to the employees that they should resign from the Union prior to returning to work to prevent the Union from fining them. - B. Analysis and Conclusions The October letter to the Union clearly reflected Re- spondent's withdrawal from the Association with the Union's or Association's approval and repudiated the parties' collective-bargaining . relationship. Respondent does not refute that the prior agreement was renewed by its terms and was considered by the Association to be in full force and effect. I therefore find Respondent repudi- ated the agreement while it was still part of the multiem- ployer bargaining unit. The Association was established by the unequivocal agreement of the parties. I find that Becker did not properly withdraw from the Association nor did any of the described circumstances warrant the Company's withdrawal of recognition of the Union and repudiation of the collective-bargaining agree- ment. In this case, it is undisputed that Becker and the other members of the Association authorized the Asso- ciation to bargain on their behalf with the Union about terms and conditions of employment. It is also undis- puted that prior to commencement of negotiations about the Union's name change and the Association's successful assertion that the contract had been renewed, the Re- spondent did not make any attempt to cancel the Asso- ciation's bargaining authority or otherwise indicate an intent to abandon the unit. I,espondent has failed to adduce any evidence that the element of "mutual con- sent" was absent or "unusual circumstances" present. City Roofing Co., 222 NLRB 786 (1976). I find no merit in Respondent's argument that it did not consent to be bound by inultiemployer bargaining. Becker was present during the two negotiating sessions and exhibited a clear intent to be bound by the' delega- tion of bargaining authority to the Association. NLRB v. Dover Tavern Owners' Assn., 412 F.2d 725 (3d Cir. 1969). Becker did not disavow the Association's authority during these meetings nor did he dispute its position that the contract was renewed. There is no claim that Becker did not understand the purpose of the Association' or the meetings with the Union. It is clear that the Association was bargaining for its members as a group and Respond- ent understood and intended that it was a part of that group and he intended to be bound by the results of the group bargaining. Respondent does not claim Lechner's representations to the Union in his 28 August letter were inaccurate or incorrect. Lechner clearly states he repre- sents several companies, including Respondent, for multi- employer collective bargaining. This understanding is also clearly evidenced by his letter of 9 October wherein he tried to withdraw from the Association. There was no equivocation apparent in any of Respondent's or the As- sociation's actions to call into question either the actual or apparent authority of the Association to negotiate and execute an agreement on Respondent's behalf as part of the multiemployer unit. See American Bank Note Co.,' 281 NLRB 617, 618 (1986) and cases cited therein. Cf. United Steel Erectors, 283 NLRB 314 (1987), and Cablevi- sion Industries, 283 NLRB 22 (1987). I also find to be without merit Respondent's argument that the Union accepted Respondent's withdrawal from the Association, for it accepted the employees' with- drawal from the Union. As the Union's representative correctly testified, the Union was constrained by law to accept the employees' withdrawals. Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984). Un- timely withdrawal from the Association cannot be ren- dered permissible by the employing parties' unlawful acts of informing the employees they had to resign from the Union to return to work. The employees were unlawful- ly induced to withdraw from the Union as discussed below., To hold otherwise would not "foster and main- tain stability in bargaining relationships." Carvel Co., 226 NLRB 111, 112 (1976). The tactic of creating a claimed or inferred loss of majority of employees wishing union representation through threat of loss of employment to induce withdrawal of membership would destabilize bar- gaining relationships and encourage unlawful acts. Celan- ese Corp. of America, 95 NLRB 664, 673 (1951); Colonial Manor Convalescent Center, 188 NLRB 861 (1971). Further, the bargaining history and the delegation of authority to the Association to negotiate, establishes the following unit as appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All glazier journeymen, residential installers and ap- prentices, but excluding all other employees, guards and supervisors as defined in the Act, employed by employer-members of the Association who have au- thorized the Association to bargain with the union on their behalf. Thus, the unit in this case is not comprised of only the Respondent's employees, but includes the employees of the other employer-members of the Association. Ameri- can Bank Note Co., id. Assuming arguendo, Respondent was justified in with- drawing from the Association, or the prior contract was not, renewed, it still was obliged to recognize the Union as the collective-bargaining representative of its employ- ees. The Union enjoyed a rebuttable presumption of ma- jority representative status. This -presumption survives the expiration of a collective-bargaining agreement. Ter- rell Machine Co., 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970), cert. denied 398 U.S. 929 (1970); Fleming Industries, 282 NLRB 1030 (1987). In this case Respondent has not shown that its withdrawal of recog- nition was predicated on a reasonably good-faith doubt about the Union's continued majority status. Cf. Sofro, Inc., 268 NLRB 159 (1983). Respondent made several other allegations on brief in defense of its actions. These assertions have been consid- ered and found to be unsubstantiated on the record and 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD without merit. For example, it is claimed that the Union signed a separate agreement with D & D Door & Glass. There is no evidence regarding this contention; there was no contract between D & D Door and the Union placed in evidence. Additionally, signing interim agree- ments with one of the members of a multiemployer bar- gaining unit does not disestablish the unit or permit un- timely withdrawal. Charles D. Bonanno Linen Service, supra, 243 NLRB at 1096, wherein the Board requires that such an agreement must be shown to derogate the unit's bargaining authority or place the respondent or the company executing such an agreement outside the " as- sociation-wide contract." In sum I find Respondent's untimely withdrawal from the multiemployer association and withdrawal of recog- nition of the Union was absent any unusual circum- stances that would relieve the employer from giving timely notice or otherwise justify its repudiation of the Union's representative status. Therefore, I find that Re- spondent by its withdrawal letter repudiating the agree- ment and stating it would refuse to recognize the Union as the representative of its employees has violated Sec- tion 8(a)(5) and (1) of the Act. I further find that by making statements to employees verbally and by writing that in the 9 October letter that if the employees wanted to continue working for the Company they must resign from the Union is violative of Section 8(a)(1) of the Act. As found above, these state- ments are not couched in the aura of advice based on the belief the employees might be subject to fines by the Union for crossing a picket line. Considering the sur- rounding circumstances, including the employees' de- pendence on the Company for employment, the state- ments were clearly coercive and therefore violative of Section 8(a)(1) of the Act. Peabody Coal Co. v. NLRB, 725 F.2d 357, 363-364 (6th Cir. 1984); Schurpack, Inc., 283 NLRB 188 (1987). THE REMEDY Union, and withdrawal of recognition from the Union, in a manner consistent with Board policy as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co, 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. The Association and its employer-members, includ- ing Respondent, are engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The unit set forth herein constitutes a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act, and it has thereby en- gaged in unfair labor practices in violation of Section 8(a)(1) of the Act by coercively informing its employees that they will have to resign from the Union if they wanted to continue their employment with the Compa- ny. 5. At all material times, the Union has been and is the exclusive bargaining representative of the employees, in- cluding those of Respondent, in the appropriate unit. 6. By its withdrawal letter of 9 October 1986 and by its failure to abide by the 1986-1987 collective-bargaining agreement, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On the above findings of fact, and conclusions of law, and on the entire record in the case, I issue the following recommended6 Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent be or- dered to cease and desist from like or related unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to accept and abide by the 1986-1987 collective-bargaining agreement between the Association and the Union, I shall recommend that Re- spondent comply with the terms and conditions of the agreement, both retroactively to its effective date and for the balance of its term, including payment to any funds, as appropriate. The General Counsel requests inclusion of a visitatorial clause as part of the remedy. Under the circumstances of this case, I find it unnecessary to in- clude a visitatorial clause. I shall also recommend that Respondent make whole its employees in the aforesaid bargaining unit for any loss of pay that they may have suffered by reason of the Re- spondent's untimely and unlawful withdrawal from the Association; repudiation of the collective-bargaining agreement in effect between the Association and the ORDER The Respondent, Becker's Glass Shop, Inc., Billings, Montana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively informing our employees that they will have to resign from the Union if they want to continue their employment with our Company. (b) Refusing to recognize Painters, Glaziers and Allied Trades Local 260, affiliated with the International Broth- erhood of Painters and Allied Trades (Local 260), as the collective-bargaining representative of the employees in the unit set forth above. (c) Failing and refusing to abide by the terms of the collective-bargaining agreement between the Billings and Vicinity Glazing Contractors Association (Association) 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses BECKER'S GLASS SHOP 795 and Local 260 effective 21 September 1986 through 30 September 1987. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with the above- named labor organization as the exclusive representative of all the employees in the above appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Forthwith accept and comply with the terms and conditions of the 1986-1987 collective-bargaining agree- ment between the Association and the Union as indicated in the remedy section. (c) Make whole its employees in the bargaining unit found appropriate herein for any loss of pay they may have suffered by reason of Respondent's repudiation of the aforesaid collective-bargaining agreement in the manner and to the extent set forth in the remedy section. (d) Post at its Billings, Montana place of business copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Re- spondent'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 customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX been ordered to post this notice and to abide by its terms. Section 7 of the Act gives employees these rights. To organize To form, ,loin, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT do anything that interferes with, re- strains, or coerces you with respect to these rights. More specifically, WE WILL NOT coercively inform our employees that they will have to resign from the Union if they want to continue their employment. WE WILL NOT refuse to recognize Painters, Glaziers and Allied Trades Local 260, affiliated with the Interna- tional Brotherhood of Painters and Allied Trades (Local 260), as the collective-bargaining representative of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in their right to engage in or refrain from engaging in any or all the ac- tivities specified in Section 7 of the Act. WE WILL restore the terms and conditions of employ- ment of our employees as they existed prior to 9 October 1986, and WE WILL make whole any of our employees for any loss they suffered due to our attempted with- drawal from the Billings and Vicinity Glazing Contrac- tors Association and our repudiation of the collective- bargaining agreement effective from 21 September 1986 through 20 September 1987. WE WILL, when appropriate, recognize and, on re- quest, bargain with the above-named labor organization as the exclusive representative of all the employees in the appropriate unit described below with respect to wages, hours and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed written agreement. The appropriate unit is: NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all the parties participated, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act. We have All glazier ,journeymen, residential installers and apprentices, but excluding all other employees, guards and supervisors as defined in the Act, em- ployed by employer-members of the Billings and Vicinity Glazing Contractors Association. BECKER'S GLASS SHOP, INC.