Curtain Matheson Scientific, Inc.

350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Curtin Matheson Scientific, Inc. and General Driv- ers, Warehousemen and Helpers, Local 968, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 23-CA- 7620 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 20 November 1980 Administrative Law Judge Martin S. Bennett issued the attached deci- sion. The General Counsel filed exceptions and a supporting -brief, and the Respondent filed a brief opposing the General Counsel's exceptions. 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 exceptions2 and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The complaint in this proceeding alleges that the Respondent committed three violations of Section 8(a)(5) and (1); an unlawful withdrawal of recogni- tion of the Union as the collective-bargaining rep= resentative of the Respondent's unit employees; an unlawful failure to furnish relevant and necessary information requested by the Union; and an unlaw- ful refusal to execute a written contract embodying the collective-bargaining agreement reached by the parties. The judge dismissed the entire complaint based on his finding that the Respondent had a rea- sonably based, good-faith doubt of the Union's ma- jority status at the time it withdrew recognition. We disagree, finding that the evidence supporting the Respondent's asserted good-faith doubt is insuf- ficient to rebut the presumption of the Union's con- tinuing majority status. Further, we conclude that the Respondent violated Section 8(a)(5) and (1) as alleged in the complaint. 1.' Withdrawal of recognition A 3-year collective-bargaining agreement be- tween the parties expired on 21 May 1979.3 On 25 May, during the negotiations for a new contract, the Respondent made its last offer to the Union, the parties stipulating that the proposal was for a complete collective-bargaining agreement. On 29 May the Union rejected the Respondent's 25 May offer. About 4 June the Respondent instituted a lockout of all 27 bargaining unit employees. On 12 June the Respondent terminated the lockout and renewed its offer of 25 May.4 On the same day the Union again rejected the 25 May offer.5 On 13 June the Union commenced an economic strike that lasted until about 16 July. Of the 27 bargaining unit employees who had previously been locked out, 22 initially took part in the strike, and 5 crossed the picket line to return to work. The record contains no evidence of any picket-line or other strike-related violence or threats during the course of the strike. Elizabeth Price, the Respondent's director of em- ployee relations, testified- that about the time the strike began, she had two discussions with employ- ee Tony Lopez, one of the five who had crossed the picket line. Lopez told Price in these conversa- tions that the Union had done nothing for the em- ployees, and that the Union's business representa- tive was not doing his job. Lopez, not a union member, further stated that he had not paid union dues in the past and would not pay them because he would not support the Union in any way. Also about this time, Price testified that she had a con- versation with employee Bill Lee, another of the five who had crossed the picket line at the begin- ning of the strike. Lee, also not a union member, told Price that he was not paying union dues and did not intend to because he did not support the Union and believed that the Union had not done anything for the employees. Price further testified that later, on 19 June, em- ployee and Chief Shop Steward Shady Goodson crossed the picket line to speak with her and Jim Crocker, another management official. Goodson said that he felt he was in the middle of an uncom- fortable situation because only the Union itself, and not the employees, wanted the strike. He also stated that he was having difficulties convincing the striking employees to man the picket line and that the Union was not providing enough assistance in maintaining the . picket line. He also said that ' On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 8 The General Counsel excepted to the judge's denial of a motion to amend the complaint filed by the General Counsel after the hearing in this matter We affirm the judge's disposition of the motion for the rea- sons stated in In I of his decision 9 All dates are in 1979 unless otherwise indicated The Union was cer- tified by the Board on 15 April 1970 as the exclusive representative of a unit of the Respondent's production and maintenance employees, and the parties stipulated that this was the unit covered by the agreement that expired 21 May 1979 " The parties stipulated at the hearing that the legality of the lockout was not at issue, and thus it is not before us The dates for the beginning and end of the lockout are taken from the record, and we correct the judge's errors in this regard 5 Subsequently, on 17 June, the Respondent implemented the wage aspect of its 25 May proposal based on its perception of an impasse in negotiations This conduct was not alleged as an unfair labor practice 287 NLRB No. 35 CURTIN MATHESON SCIENTIFIC 351 some other striking employees felt the same way that he did.6 Subsequently, Goodson requested re- instatement, and still later, on 19 July, he resigned from the Respondent's employ. On 27 June, according to Price's testimony, em- ployee and former shop steward J . R. Blackshire crossed the picket line to request reinstatement. He spoke with Price and Tim Martin, another manage- ment official . He expressed anger with the Union because, initially, the Union did not pay him to walk the picket line, and then, when it did, it de- ducted union dues from the payment. After this discussion, Blackshire went into the Respondent's warehouse to talk to friends who were working there. After a few minutes, he called Price over. He stated that there was no union anymore, that people were not supporting it. He also said that there were other striking employees who wanted to return to work. Price also testified that in early July, employee Clint Waller crossed the picket line to speak with her and Crocker . Waller said that he had not been manning the picket line and would not do it be- cause he was upset with the Union. He stated that he felt that the Union was not representing the em- ployees. He said that he would like "this thing," apparently the strike, to be over with, and he wanted Price and Crocker to know that. He also indicated that he intended to withdraw from mem- bership in the Union and he wanted to know how that would affect his unemployment benefits. Price further testified that subsequently, at some point prior to 20 July, Waller notified the Respondent by telephone that he had resigned from the Union.7 On 12 July, according to Price, employee Ray- mond Brunner crossed the picket line to talk with her and Martin. He stated that he had decided to retire because he did not want to have anything to do with the Union again; he repeated several times during the conversation that he did not want to have to work with the Union any more.8 On 16 July the Union, on behalf of the striking employees, made an unconditional offer to return to work, thereby ending the strike. Later on the same day, the Union notified the Respondent that the bargaining unit employees had accepted the Respondent's 25 May collective-bargaining propos- 6 It is apparent from the record that Goodson was a member of the Union's negotiating committee as well as a chief shop steward . However, according to the uncontradicted testimony of Crocker, which generally corroborated Price's version of the 19 June meeting, Goodson opened the conversation by stating that he was there on his own and not as a repre- sentative of union employees or the Union itself. 7 On 23 July the Respondent received a letter from Waller , dated 19 July, confirming his earlier telephone message that he had resigned from the Union. s The record is not clear whether or when Brunner actually retired from the Respondent's employ. al. On 19 July the Union requested that the Re- spondent provide notification of its availability to execute the collective-bargaining agreement reached between the parties. A few weeks earlier, on 25 June, the Respondent had hired 29 new employees as permanent replace- ments for the 22 unit employees on strike .9 There is no evidence that the Union attempted to contact any of the replacements during the strike. Price tes- tified that, beginning around mid-July, she had in- dividual discussions with 12 or 13 of the replace- ment employees. On 19 July she spoke with re- placement employee David Schneider. Schneider told her that he had worked in situations where he had been a union member and he had worked in nonunion situations and, from what he could see, he did not think that this Union represented the employees, and it just was not needed at the Com- pany. On 20 July the Respondent, in reply to the Union's 16 July statement of acceptance of the Re- spondent's last bargaining proposal, notified the Union that that proposal, which the Union had pre- viously rejected, was no longer available. In the same communication, the Respondent stated that it doubted that the Union had the support of a major- ity of the bargaining unit employees , and on that basis it declined to recognize or bargain with the Union as the employees' representative. Also on 20 July, Robbie Madison, a bargaining unit member when the strike began, resigned from the Respond- ent's employ. The record does not indicate wheth- er the Respondent knew about or relied on Madi- son's resignation at the time it withdrew recogni- tion of the Union. In addition, according to the complaint allega- tions, about 20 July, the Union requested that the Respondent furnish information regarding the total number of bargaining unit employees then on its payroll and the job classification and seniority date of each such employee . In its answer to the com- plaint, the Respondent stated that it had received the Union's information request and that thereafter it had refused to provide the information. In its posthearing brief to the judge and in its brief to the Board opposing the General Counsel 's exceptions, the Respondent stated that its refusal was based on its doubt of the Union's majority support. s Price testified that 29 replacements were hired although only 22 jobs had been opened up by the strike because the Respondent anticipated that some of the hirces would not cross the picket line, that there would be some turnover within a group of new employees that large, and that additional workmen would be needed during the initial training period. The record indicates that several replacements were terminated within a few weeks. 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As of 20 July, the date of, the Respondent's with- drawal of recognition, the record indicates that 25 strike replacements and the 5 employees who had initially crossed the picket line were working for the Respondent in the bargaining unit. There were also approximately 20 unit employees who had for- merly been strikers and who had requested rein- statement, thus making a total of approximately 50 employees in the unit. 10 The judge, crediting Price's testimony generally, dismissed the complaint in its entirety on his find- ing that the Respondent had acquired a reasonable, good-faith doubt of the Union's majority status by 20 July and had accordingly made a valid with- drawal of recognition. In reaching his conclusion, the judge relied on certain of the circumstances re- lated above, and especially the individual state- ments the employees made to Price. Contrary to the judge, we find the record evidence on which the Respondent depended to support its doubt of the Union's majority status insufficient to justify its withdrawal of recognition. In Station KKHI, 284 NLRB 1339, 1340 (1987), we had occasion to reaffirm the essential principles controlling this area of the law: Absent unusual circumstances, there is an ir- rebuttable presumption that a union-enjoys ma- jority status during the first year following its certification. On expiration of the certification year, the presumption of majority status con- tinues but may be rebutted. An employer who wishes to withdraw recognition after a year may do so in one of two ways: (1) by showing that on the date recognition was withdrawn the union did not in fact enjoy majority status, or (2) by presenting evidence of a sufficient objective basis for a reasonable doubt of the union's majority status at the time the employ- er refused to bargain. As previously indicated, the Respondent's defense of its withdrawal of recognition is based on the second method above. The objective, evidentiary factors presented by the Respondent to support its reasonable doubt of the Union's majority status are: the fact that 5 of the original 27 bargaining unit employees crossed the picket line at the beginning of the strike; the resignations from its employment of employees Goodson and Madison; the hiring of 29 strike replacements; and the statements made to Price by employees Goodson, Lopez, Lee, Black- shire, Brunner, Waller, and Schneider, which asser- 10 In the evaluation of, a union's continuing majority status, striking employees, even if permanently replaced, and their replacements are in- cluded in the bargaining unit See, e g , Whisper Soft Mills Y NLRB, 754 F 2d 1381 fn 8 (9th Cir 1985) tedly demonstrate repudiations of the Union as the employees' collective-bargaining representative. We note at the outset that the fact that 5 of the 27 unit employees crossed the picket line does not in itself support an inference that the 5 repudiated the Union as the collective-bargaining representa- tive. The failure of employees to join an economic strike may indicate their economic concerns rather than a lack of support for the union. See, e.g., NLRB v. Pennco, 684 F.2d 340, 342 (6th Cir., 1982), cert. denied 459 U.S. 994 (1982); Station KKHI, above. Further, Shady Goodson's statements to Price on 19 June, whether speaking for himself or for others, conveyed only a disapproval of the Union's conduct of the strike; he made no broader expression which could be reasonably interpreted as a repudiation of the Union as the employees' representative. See, e.g., NLRB v. Windham Memo- rial Hospital, 577 F.2d 805, 814 (2d Cir. 1978). In addition, Goodson's resignation from employment, as well as Robbie Madison's (assuming the Re- spondent was aware of it when it withdrew recog- nition), operated only to reduce by two the size of the bargaining unit as of the date of withdrawal of recognition. With respect to the Respondent's reliance on the hiring of 29 strike replacements, we note first that there were 25, and not 29, still working when rec- ognition was withdrawn. Concerning the effect of the employment of strike replacements on the over- all presumption of the Union's continuing majority status, we stated in Station KKHI, above, that we will not use any presumptions with respect to their union sentiments; instead, we will take a case-by- case approach, and we will require additional evi- dence of a lack of union support on the• replace- ments' part in evaluating the significance of this factor in the employer's showing of good-faith doubt. Id. In this case, the apparently peaceful picket line the replacements crossed and the Union's apparent failure to contact them during the strike do not provide a basis for inferring their union sentiments, as these matters are "common to the hiring of replacements." Ibid. The only affirma- tive evidence the Respondent produced regarding any replacement employee's views of the Union is the conversation between Price and replacement employee Schneider. We treat the content of Schneider's remarks below, but we note at this point that Schneider was one replacement employ- ee, speaking for himself, of a total of 25. Thus, we have no showing with respect to the views of other replacements and no evidentiary basis for CURTIN MATHESON SCIENTIFIC 353 reasonably inferring the union sentiments of the re- placement employees as a group. I I It is apparent that the essence of the Respond- ent's good-faith doubt defense is the effect of the statements made to Price by employees Blackshire, Lopez, Lee, Brunner, Waller, and Schneider con- cerning their views of the Union. It may be that some of these statements constituted rejections of the Union as bargaining representative; the import of others, however, appears ambiguous at best. In any event, we see no need to determine whether these statements in fact constitute individual repu- diations of the Union as the collective-bargaining representative. Even attributing to them the mean- ing most favorable to the Respondent, it would merely signify that 6 employees of a total bargain- ing unit of approximately 50 did not desire to keep the Union as the collective-bargaining representa- tive.12 Taking into account all the factors relied on by the Respondent to support its asserted reasonable doubt of the Union's majority status, i.e., the five employees who initially crossed the picket line, the resignations of two employees, the employment of strike replacements, and the individual employee statements concerning the Union, we conclude that the evidence is insufficient to rebut the presump- tion of the Union's continuing majority status. Ac- cordingly, the Respondent's withdrawal of recogni- tion of the Union on 20 July violated Section 8(a)(5) and (1). See, e.g., Bickerstaff Clay Products, 286 NLRB 295 (1987); Station KKHI, supra. 11 In NLRB v. Randle-Eastern Ambulance Service, 584 F.2d 720 (5th Cir. 1978), the court determined that the employment of strike replace- ments ' as well as the fact that a number of employees renounced the strike and crossed the picket line, contributed to a finding that the com- pany had presented sufficient evidence of its good -faith doubt to make a valid withdrawal of recognition of the union . The Respondent relies on this decision in making its own good-faith doubt contentions. The court in Randle-Eastern inferred that the employees did not support the union in light of, inter alia, violence directed against those who crossed the picket line and the union's negotiating position that the strike replace- ments would have to be discharged to make room for striking employees when the strike was over . Id. at 728. We note that these two circum- stances in particular, as well as others the court relied on, are not present in the instant case. 12 With respect to former shop steward Blackshire , to the extent that his remarks to Price on 27 June purported to represent the views of em- ployees other than himself, we assign very little weight to them, because his statement that "people" were not supporting the Union any more was vague, and, more importantly, if we found otherwise, "a few antiunion employees could provide the basis for a withdrawal of recognition when in fact there is actually an insufficient basis for doubting the Union's con- tinued majority." Golden State Habilitation Convalescent Center, 224 NLRB 1618, 1619-1620 (1976), enf denied on other grounds sub nom Dalewood Rehabilitation Hospital v. NLRB, 566 F 2d 77 (9th Cir 1977); see also Louisiana-Pacific Corp, 283 NLRB 1079 fn 6 (1987) (Chairman Dotson, in dissent, would have dismissed the complaint on the basis of the totality of the evidence), Silver Spur Casino, 270 NLRB 1067, 1074- 1075 (1984). In addition, Blackshire's tenure as a shop steward, having expired prior to the events in this case, provides no basis for imputing to him special knowledge of employees' current union sentiments . See Lou- isiana-Pacific Corp , supra. 2. Refusal to supply information Concerning the Respondent's alleged refusal to comply with the Union's 20 July information re- quest, it is clear from the Respondent's admissions in both its answer to the complaint and its briefs that its conduct in this regard was based on its as- serted doubt of the Union's status as the employees' representative. In light of our finding above that the Respondent's withdrawal of recognition of the Union violated the Act, its subsequent refusal to supply the requested information cannot stand. An employer is obligated to provide the employees' bargaining representative with information that is necessary and relevant to fulfill its statutory collec- tive-bargaining function. See generally NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). A union's information request bearing on the terms and con- ditions of employment of bargaining unit employ- ees is presumptively relevant. See, e.g., Fairfield Daily Republic, 275 NLRB 7 (1985); Pfizer, Inc., 268 NLRB 916 (1984), enfd. 763 F.2d 887 (7th Cir. 1985). Here, the Union specifically requested that the Respondent provide information with respect to the total number of bargaining unit employees on its payroll and each such employee's job classifi- cation and seniority date. This information is pre- sumptively relevant and the Respondent's refusal to furnish it to the Union violated Section 8(a)(5) and (1). See, e.g., Bickerstaff Clay Products Co., supra. 3. Refusal to execute the agreement Regarding the Respondent's alleged refusal to execute a written collective-bargaining agreement, the record is clear that the Respondent proposed a complete collective-bargaining agreement on 25 May. The Union rejected this offer on 29 May and again on 12 June after the Respondent renewed its offer. On 16 July, following an economic strike and the Union's unconditional offer to return to work, the Union stated its acceptance of the 25 May pro- posal; and on 19 July, the Union requested that the Respondent execute a written contract embodying the agreement reached on the basis of the 25 May proposal. On 20 July, the Respondent informed the Union that the 25 May proposal which the Union had rejected was no longer available for accept- ance. The record also clearly indicates that the Re- spondent never expressly withdrew the 25 May offer prior to the Union's acceptance on 16 July. The Respondent defends its conduct on grounds of "basic contract law," i.e., the proposition that a contractual offer is terminated on rejection and is not subsequently available to the rejecting party for acceptance. Alternatively, the Respondent asserts that the failure of the strike constituted a change of 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining circumstances which operated as a with- drawal of the 25 May proposal. The principles of law in this matter are well es- tablished. Technical rules of contract law do not necessarily control regarding the making of collec- tive-bargaining agreements. Generally, a complete collective-bargaining proposal remains viable, even if previously rejected, and, on acceptance, must be executed in accordance with Section 8(d), unless, prior to acceptance, the offer is expressly with- drawn or a change in circumstances leads to a rea- sonable conclusion that the offer has been with- drawn. Ben Franklin National Bank, 278 NLRB 986 (1986), and cases there cited. Here, the 25 May offer, although twice rejected, was never expressly withdrawn and remained open for acceptance as of 16 July. On that date the Union did accept the 25 May offer, the parties thereby reaching agreement on a complete collective-bargaining contract. The apparent failure of the strike did not amount to a change in negotiating circumstances, sufficient for the parties reasonably to view the proposal as ef- fectively withdrawn. See, e.g., Pepsi Cola Bottling Co. v. NLRB, 659 F.2d 87, 90 (8th Cir. 1981); Ben Franklin National Bank, supra.13 On 19 July the Union requested execution of a written contract in- corporating the agreement reached, thus activating the Respondent's 8(d) duty to do so. By refusing to execute a written contract the Respondent violated Section 8(a)(5) and (1). Bickerstaff Clay Products Co., supra; Ben Franklin National Bank, supra. CONCLUSIONS OF LAW 1. Respondent Curtin Matheson Scientific, Inc. is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Warehousemen and Helpers, Local 968, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. On 15 April 1970 the Union was certified by the Board as the exclusive collective-bargaining representative of the employees employed in the following described unit appropriate for the pur- poses of collective bargaining: All production and maintenance employees, including truck drivers and city sales em- ployed at 4220 Jefferson, Houston, Texas. Ex- cluded are all other employees, including 13 Cf NLRB v Randle-Eastern Ambulance Service, above, relied on by the Respondent, in which the court , rejecting a bad-faith bargaining office clerical employees, service repairmen, telephone sales, outside salesmen, guards, watchmen, laboratory personnel, and supervi- sors as defined in the Act. 4. By withdrawing recognition of the Union as the representative of the employees in the unit de- scribed above on 20 July 1979, the Respondent vio- lated Section 8(a)(5) and (1) of the Act. 5. By failing and refusing to furnish the Union with the information requested by it on or about 20 July, the Respondent violated Section 8(a)(5) and (1) of the Act. 6. By failing and refusing to execute a written contract embodying the collective-bargaining agreement reached by the parties on 16 July 1979, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. The unfair labor practices above constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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. To remedy the Respondent's unlawful withdraw- al of recognition of the Union, we shall order the Respondent to recognize and, on request, bargain with the Union concerning the terms and condi- tions of employment of the bargaining unit employ- ees. To remedy the Respondent's unlawful refusal to provide the information requested by the Union, we shall order the Respondent to provide the spe- cific information sought by the Union on or about 20 July 1979, if the Union so requests. With respect to the Respondent's unlawful refus- al to execute the agreement reached on 16 July 1979, it is apparent that that agreement will have expired prior to the issuance of this decision. Ac- cordingly, to remedy • effectively the unfair labor practices found herein, we shall order the Re- spondent to execute that agreement, if the Union so requests, and give retroactive effect to its terms and conditions, and make the bargaining unit em- ployees whole for losses, if any, they may have suf- fered as a result of its refusal to sign such agree- ment,14 backpay for employees to be computed in accordance with the method stated in Ogle Protec- tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest to be computed in theory, found that the company had not violated the Act by expressly 14 We note here, for its possible effect on our make-whole remedy, the withdrawing its previous proposals in light of a change in relative bargain- Respondent's implementation of the wage aspect of its final offer on 17 ing strengths in the context of a strike June 1979. CURTIN MATHESON SCIENTIFIC 355 the manner prescribed in New Horizons for the Re- tarded.15 We shall further order that if the Union does not request that the Respondent execute the agreement reached on 16 July 1979, the Respond- ent shall, on request, bargain in good faith with the Union concerning the terms and conditions of an agreement, and, if an agreement is reached, execute a written contract incorporating such agreement. See, e.g., Parkview Furniture Mfg. Co., 284 NLRB 947 (1987); Worrell Newspapers, 232 NLRB 402 (1977). ORDER The National Labor Relations Board orders that the Respondent, Curtin Matheson Scientific, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain by withdrawing recogni- tion of the Union as the exclusive bargaining repre- sentative of the Respondent's employees in the fol- lowing unit: All production and maintenance employees, including truck drivers and city sales em- ployed at 4220 Jefferson, Houston, Texas. Ex- cluded are all other employees, including office clerical employees , service repairmen, telephone sales, outside salesmen, guards, watchmen, laboratory personnel, and supervi- sors as defined in the Act. (b) Refusing to bargain by refusing to furnish the information requested by the Union about 20 July 1979 concerning the total number of bargaining unit employees on its payroll and the job classifica- tion and seniority date of each such employee. (c) Refusing to bargain by refusing to execute a written contract embodying the collective-bargain- ing agreement reached between the parties on 16 July 1979. (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) Recognize the Union as the exclusive collec- tive-bargaining representative of the employees in the unit set out above and bargain in good faith 15 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I 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 U .S.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). with the Union at its request concerning the unit employees' terms and conditions of employment. (b) Furnish the Union on request the information it sought on or about 20 July 1979. (c) On request, sign a collective-bargaining agreement containing the terms and conditions of employment agreed to between the Respondent and the Union on 16 July 1979 and give retroactive effect to its terms and conditions , and make its em- ployees whole, with interest, for losses, if any, they may have suffered as a result of its refusal to sign such agreement. (d) If no such request is made , bargain collec- tively in good faith with the Union, at its request, over the terms and conditions of a new collective- bargaining agreement and, if an agreement is reached, sign a written contract embodying such agreement. (e) 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. (f) Post at its Houston, Texas facility copies of the attached notice marked "Appendix." 16 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT withdraw recognition of General Drivers, Warehousemen and Helpers, Local 968, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive collective-bar- gaining representative of our employees in the fol- lowing unit: All production and maintenance employees, including truck drivers and city sales em- ployed at 4220 Jefferson, Houston, Texas. Ex- cluded are all other employees, including office clerical employees, service repairmen, telephone sales, outside salesmen, guards, watchmen, laboratory personnel, and supervi- sors as defined in the Act. WE WILL NOT refuse to furnish the information requested by the Union about 20 July 1979 con- cerning the total number of bargaining unit em- ployees on the payroll and the job classification and seniority date of each such employee. WE WILL NOT refuse to execute a written con- tract embodying the collective-bargaining agree- ment reached between ourselves and the Union on 16 July 1979. 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 recognize the Union as the exclusive collective-bargaining representative of the employ- ees in the unit set out above and WE WILL bargain in good faith with the Union on request concerning the unit employees' terms and conditions of em- ployment. WE WILL furnish the Union on request the infor- mation it requested on or about 20 July 1979. WE WILL, on request, sign a collective-bargain- ing agreement containing the terms and conditions of employment agreed to between ourselves and the Union on 16 July 1979, WE WILL give retroac- tive effect to its terms and conditions, and WE WILL make the unit employees whole, with inter- est, for losses, if any, they may have suffered as a result of our refusal to sign such agreement. WE WILL, if no such request is made, bargain collectively in good faith with the Union, on its re- quest, over the terms and conditions of a new col- lective-bargaining agreement and, if an agreement is reached, WE WILL sign a written contract em- bodying such agreement. Clinton S. Morse and Donald Horton (Andrews, Kurth, Campbell & Jones), of Houston, Texas, for the Re- spondent. Howard Reed, of Houston, Texas, for the Union DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge This matter was heard at Houston, Texas, on June 10, 1980. The complaint, issued September 7 and based on a charge filed July 30, 1979, by General Drivers, Ware- housemen and Helpers, Local 968, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO (the Union), alleges that Respondent Curtin Matheson Scien- tific, Inc. has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Able briefs have been submitted by the General Counsel and Re- spondent. I On the entire record in the case, and from my observa- tion of the witnesses, including their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Curtin Matheson Scientific, Inc. is a Delaware corpo- ration with its principal office and place of business lo- cated in Houston, Texas, where it is engaged in the busi- ness of buying and selling laboratory instruments and supplies. It annually purchases and receives goods and materials valued in excess of $50,000, which are shipped to its facilities in Texas directly from points located out- side that State. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Warehousemen and Helpers, Local 968, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Attacked herein is the fact that, after rejecting an offer of a contract by Respondent, the Union thereafter changed its mind, and decided to accept the contract. Further attacked is the fact that Respondent next refused to execute such a written contract, withdrew recognition from the Union, and attacked its representative status on the basis that it had a good-faith doubt of its majority representation Accompanying the foregoing is the fact CURTIN MATHESON SCIENTIFIC, INC. Bernard L. Middleton and Ernest Duran, for the General Counsel. ' A motion by the General Counsel to amend the complaint, initially raised in her brief, without any advance notice of any nature, is denied because, as later urged by Respondent, I deem this to constitute a lack of due process CURTIN MATHESON SCIENTIFIC that Respondent thereafter refused to submit certain in- formation to the Union with respect to the total number of bargaining unit employees, their classifications, and their seniority dates. In essence, this comes down to whether, on the dates crucial, Respondent entertained a good-faith doubt about the representative status of the Union among its employees.2 A strike commenced on June 13, 1979,3 and the parties on the record stipulated that on June 14 there was a legal lockout of the strikers by Respondent that is not in issue.4 The parties met again on June 12, Respondent re- newed its last contract offer of May 25 and also notified the Union that the lockout was threatened as of that date. This led to the strike of June 13. On July 16 the Union notified Respondent that the em- ployees had voted to accept Respondent's offer of May 25. The parties agreed that although the Union was still the exclusive bargaining representative as of June 12 and that as of July 19 the Union requested Respondent to execute the contract embracing its last rejected offer; Re- spondent has refused to do so since July 20. There is substantial evidence , which I credit, that five of the bargaining unit employees crossed the picket line and attempted to return to work. Early in the strike, Elizabeth Price, director of em- ployee relations, in my observation a most forthright and credible witness, commenced receiving reports about em- ployee dissatisfaction with the Union and, moreover, a desire not to be represented by the labor organization. Price testified that Tony Lopez, who crossed the picket line, had volunteered that the Union was doing nothing for the employees and that Business Agent Reed was not representing the employees adequately. Several days later Lopez expressed an opinion about Reed's lack of ability in regulating the employees. Employee Bill Lee crossed the picket line and volun- teered to Price his dissatisfaction with the Union and its representation of the employees ; Price so testified and I credit her testimony. Lee further testified that Chief Shop Steward Goodson requested a meeting with Jim Crocker of Respondent's International division . Goodson crossed the picket line and met with Price and Crocker in the office of the latter. He expressed himself to the effect that Business Agent Reed wanted to strike and that the Union had difficulty manning the picket line. Price, as the record reflects, and I so find, made immedi- ate notes of this meeting. On June 25 Respondent hired 29 new employees re- placing all the 22 or 23 strikers who had totaled some 27 in the bargaining unit. Respondent understandably antici- pated some termination in the replacements. On June 27 former Shop Steward J. R. Blackshire re- quested a meeting with Price. He duly met with her and 2 The unit involved includes all production and maintenance employ- ees, including truck drivers and city sales employees at Houston, but ex- cludes all other employees including office clericals , service repairmen, telephone sales personnel , outside salesmen , guards, watchmen , laborato- ry personnel , and supervisors. The appropriatesness of this unit within the meaning of Section 9(b) of the Act is not denied and I so find 8 All dates are in 1979 unless otherwise indicated 4 Tr 28. 357 Tim Martin. He expressed concern over the fact that he had been on vacation when the lockout commenced and expressed dissatisfaction with the fact that the Union was not paying people to picket. He stated further that the Union was doing nothing for the employees and that he could not "support" such a labor organization. Indeed, at the end of the meeting he requested reinstatement. I hardly deem this to constitute evidence of his support of this labor organization and so find. B. Discussion The issue in this case is whether Respondent had a good-faith doubt of the Union's majority status at the time Respondent withdrew recognition of the Union. The current thinking of the courts, and to some extent the Board, honors the good-faith doubt defense to an 8(a)(5) unfair labor practice charge. In view of the pleth- ora of cases where various circuit courts have found that defense applicable,5 I am constrained to accept Respond- ent's defense. It is well established that the majority status of a union is conclusively presumed to continue for 1 year after the union is certified. After the certification year has ended a union enjoys a rebuttable presumption that its majority status continues and this presumption applies after the ex- piration of the collective-bargaining agreement. In refus- ing to bargain with a union after the expiration of the first year following certification, an employer violates Section 8(a)(5) unless it can overcome the presumption of majority support by affirmatively establishing that either ( 1) at the time of the withdrawal of recognition the union had lost its majority status, or (2) the employer had, in good faith, a reasonably based belief that the union had lost its majority status, and that such belief was based on objective considerations and was raised in a context free of employer unfair labor practices.6 The Union was certified as the exclusive collective- bargaining representative of Respondent's production and maintenance employees on April 15, 1970. The last collective-bargaining agreement between the Union and Respondent expired on May 21, 1979. Therefore the Union enjoyed a rebuttable, as opposed to an irrebutta- ble, presumption of majority status. Respondent does not claim to rebut the presumption by the first method stated above (i.e., that the Union had, in fact, lost its majority status), but instead relies on the second method of rebut- tal-that it had a reasonably based, good-faith doubt of the Union's majority status. 5 See, e.g, Peoples Gas System Y. NLRB, 629 F 2d 35 (D C Cir. 1980), NLRB Y. Randle-Eastern Ambulance Service, 584 F 2d 720 (5th Cir. 1978), Bellwood General Hospital Y. NLRB, 627 F 2d 98 (7th Cir. 1980), and NLRB v Key Motors Corp, 579 F.2d 1388 (7th Cir 1978); National Car Rental Systems v NLRB, 594 F 2d 1203 (8th Cir 1979); Golden State Ha- bilitation Center v. NLRB, 556 F.2d 77 (9th Cir. 1977); Burns Security Services Y NLRB, 567 F 2d 945 ( 10th Cir 1977). The Board also recognized the defense . See, e.g., Upper Mississippi Towing Corp , 246 NLRB 262 (1979), Cadillac Mfg. Corp., 232 NLRB 586 (1977), and Arkay Packaging Corp., 227 NLRB 397 (1976). 6 Brooks Y. NLRB, 348 U S. 96 (1954); NLRB v. Randle-Eastern Ambu- lance Service, supra; Burns Security Services Y. NLRB, supra, and Celanese Corp , 95 NLRB 664, 673 (1951) 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends that Respondent did not have a reasonably based, good-faith doubt of the Union's majority status. There is no assertion that the de- fense was raised in a context of employer unfair labor practices; in fact, there is no allegation that Respondent committed any independent unfair labor practices. I conclude that events both prior and subsequent to the Union's July 16 attempt to accept Respondent's May 25 proposals rebut the presumption of majority status. I find that these events were sufficient to establish a rea- sonably based, good-faith doubt of the Union's majority status.7 By June ' 27 Respondent based its doubt on several facts. On June 13, 58 of the 27 old bargaining unit em- ployees crossed the picket line, 2 of those 5 expressed nonsupport for the Unions Shady Goodson i ° reported to Respondent that the employees did not support the strike, that they felt the strike was based on the hostility of the Union's business agent , Howard Reed, and that the Union had difficulty manning the picket line. On June 27 former Shop Steward J. R. Blackshire met with Price at Respondent's offices and stated that he did not support the Union, that the Union had lost the support of the employees in the unit, and that he and many others wanted to return to work. i i On June 28 Goodson made an unconditional request for reinstatement. In the early part of July two other employees ex- pressed strong dissatisfaction with the Union On July 11 Raymond Brunner met with Price and Respondent's rep- resentative Tim Martin. Brunner stated that he wanted to 7 Much of the evidence on this subject is based on the testimony or notes of Elizabeth Price Price impressed me as a forthright and credible witness and I credit her testimony 8 The five were Bill Lee, Tony Lopez, Gilbert Ozuniga, Sandra Hutto, and Alvin Harper 8 They were Bill Lee and Tony Lopez 10 Goodson was the chief shop steward and a member of the Union's negotiating committee i i Blackshire made several statements to the effect that "there wasn't a Union anymore" and that the Union "had lost all their support from the employees in the unit " (Tr 40) return because he did not want to work with the Union again. Also in the first part of July Clint Walker met with Price and Jim Crocker , operations manager of the International division, at which he also expressed strong dissatisfaction with the Union and stated his desire to withdraw from membership. On July 19 Waller sent a confirming letter to Price's office that confirmed his lack of support for the Union. The letter included a copy of a letter addressed to the Union , dated July 19, which stated in part, "I wish not to be a member of the Team- sters no longer at Curtin Matherson Scientific , Inc. or anywhere else." 12 Three other events occurred after the Union attempted acceptance , of Respondent's May 25 proposals, and before Respondent withdrew recognition on July 20. Goodson resigned on July 19. Also on July 19, striker re- placement David Schneider told Price that the Union did not support the employees. On July 20, Robbie Madison resigned. Based on the foregoing findings of fact, I conclude that Respondent had a reasonably based , good-faith doubt of the Union's majority status. I therefore recom- mend dismissal of the complaint. CONCLUSIONS OF LAW 1. Curtin Matheson Scientific, Inc. is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Warehousemen and Helpers, Local 968, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. [Recommended Order for dismissal omitted from pub- lication ] 12 R Exh 10(b)