Colonna'S Shipyard, Inc

136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Colonna's Shipyard, Inc and United Industrial Workers, Service, Transportation, Professional and Government of North America , Local 14, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO Cases 5-CA- 17937, 5-CA-17882, and 5-CA-18015 March 8, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 6, 1987, Administrative Law Judge Claude R Wolfe issued the attached decision in this proceeding The Respondent filed exceptions and a supporting brief and the General Counsel and the Charging Party each filed cross-exceptions with a supporting and answering brief On August 13, 1987, the National Labor Relations Board issued an unpublished Order, reopening the record and remanding the proceeding to the judge for fur- ther hearing, in which it ordered that the hearing be reopened to receive evidence on the Respond ent's responsibility for Supervisor Bernard Chitty's antiunion petition under the test of Montgomery Ward & Co, 115 NLRB 645 (1956) The supple- mental hearing for this limited purpose was held on December 1 and 2, 1987, and on February 24, 1988, the judge issued the attached supplemental decision The Respondent filed exceptions and a supporting brief The General Counsel filed cross exceptions and a supporting and answering brief The Charging Party filed cross-exceptions and a supporting brief, to which the Respondent filed an answering brief The Respondent filed a motion to strike the General Counsels answering brief and the General Counsel filed a response to the motion The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the record and the at- tached decisions in light of the exceptions and briefs' and has decided to affirm the judge's rul- ings, findings,2 and conclusions and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Colonna's Shipyard, Inc, Norfolk, Vir- ginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Substitute the following for paragraph 2(a) "(a) Furnish the Union, on request, the informa- tion requested in its letter of February 26, 1987 " 2 Substitute the attached notice for that of the administrative law judge We correct the following inadvertent errors in the judge s decision In par 20 of sec III he states that the collective bargaining agreement ex pired in March 1986 However earlier in his decision he correctly identi feed the date as March 1985 In par 16 of sec III the judge stated Inas much as there has been no collective bargaining agreement since March 1985 there has been no contract for stewards to monitor It is clear from other portions of the judge s decision however that he correctly stated that contractual terms and conditions of employment survive the expiration of a collective bargaining agreement The judge cited Laystrom Mfg Co 151 NLRB 1482 (1965) in finding that new employees are pre sumed to support a union in the same ratio as the employees they replace However in his supplemental decision at fn 7 he states that the Board found in Station KKHI 284 NLRB 1339 (1987) that there is no basis for such a presumption That holding however only applies to sinker re placements not a factor in this proceeding See Pennex Aluminum Corp 288 NLRB 439 (1988) We find it unnecessary to rely on the judge s discussion in sec III par 15 of his decision concerning the effect of the Unions failure to file unfair labor practice charges with respect to changes in terms and condi tions of employment made by the Respondent following the expiration of the contract but preceding the events forming the basis of the instant complaint In the absence of relevant complaint allegations we will not speculate as to the possible merits of issues not before us We find no ment in the Charging Party s exception to the judge s re fusal in his supplemental decision to grant the General Counsels request for a general bargaining order We find it inappropriate to grant his remedy given the limited scope of our remand Order and that the Gen eral Counsel and the Charging Party are now raising a matter which was not the subject of an exception filed against the judge s original decision The General Counsel has excepted to the judge s denial of her request for a visitatorial clause We agree with the judge See Cherokee Marine Terminal 287 NLRB 1080 (1988) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ' We deny the Respondents motion to strike the General Counsel s an swering brief to its exceptions to the supplemental decision 2 Though the Respondent states in its brief in support of exceptions to the judge s supplemental decision that it does not dispute any of the judges credibility resolutions we agree with the General Counsels asset tion in her response to the Respondents motion to strike her answering brief that the clear tenor of the Respondents brief indicates that it is in fact challenging some of these findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 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 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through represents tives of their own choice 293 NLRB No 15 COLONNA S SHIPYARD 137 To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain with United In- dustrial Workers, Service, Transportation, Profes- sional and Government of North America, Local 14, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO as the exclusive bargaining rep- resentative of our employees in an appropriate unit, by refusing, on request, to furnish it with informa- tion relevant and reasonably necessary to fulfilling its representative duties, nor will we deny its agents access to our premises for purposes of ad- justing grievances, consulting with unit employees, or observing that terms and conditions of a collec- tive-bargaining agreement are being observed WE WILL NOT tell unit employees that they are not represented by the Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec tion 7 of the Act WE WILL immediately furnish the Union, on re- quest, the information it requested in its letter of February 26, 1986 WE WILL notify the Union in writing that its agents may enter our premises for the purposes set forth in article XX of the collective-bargaining agreement between us which expired on March 6, 1985 find Respondent has violated the Act as alleged in the complaint On the entire record,2 and after considering the able posttnal briefs of the parties, I make the following FINDINGS AND CONCLUSIONS I BUSINESS OF EMPLOYER Colonna s Shipyard, Inc (Respondent) is a Virginia corporation with an office and place of business in Nor folk, Virginia, where it is engaged in the maintenance and repair of ships During the 12 months preceding the issuance of the complaint, a representative period, Re spondent, in the course and conduct of these business op erations, purchased and received at its Norfolk facility goods valued in excess of $50,000 directly from points located outside the State of Virginia Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION United Industrial Workers, Service, Transportation, Professional and Government of North America of the Seafarers International Union of North America, Atlan tic, Gulf Lakes and Inland Waters District, AFL-CIO (the Union), is now and has been at all times material a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Facts and Findings Respondent has recognized and negotiated with the Union as the collective bargaining representative of its employees in an appropriate unit since 1963 3 During this COLONNA'S SHIPYARD, INC Steven E Nail Esq for the General Counsel William H Andrews Esq for the Respondent Richard Gabriele Esq for the Union i DECISION STATEMENT OF THE CASE CLAUDE R WOLFE, Administrative Law Judge This proceeding was litigated before me at Norfolk Virginia on 24 and 25 September 1986 pursuant to charges timely filed and consolidated complaint issued on 11 July 1986 The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) by unilaterally denying the Union access to its facility and by refusing to furnish it with necessary and relevant information, and violated Section 8(a)(1) by telling em ployees Respondent no longer had a union Respondent admits many of the allegations of the complaint, but denies the commission of unfair labor practices On the facts and for the reasons set forth below I conclude and i Stephen Burrow Esq on brief for the Union 2 Respondent in its brief urges me to receive R Exhs 5 and 8 into evi dence These documents are respectively dismissals by the Board s Re gional Director for Region 5 and the General Counsel of union charges on grounds there was insufficient evidence to show that Respondent vio lated the Act by sponsoring Supervisor Bernard Chitty s circulation of a petition to decertify the Union These exhibits are not probative evidence that Respondent did or did not engage in unfair labor practices They are rather exercises by the General Counsel and his agent the Regional Director of the General Counsels unreviewable statutory authority to make the final decision whether a complaint shall issue The wisdom or correctness of that decision is not subject to review by me but that deci sion is neither determinative of nor admissible evidence relating to issues before me The admissions of these exhibits would I am persuaded be prejudicial error Accordingly R Exhs 5 and 8 are again rejected as they were at hearing Similarly R Exhs 22 23 and 24 concerning a decertification petition filed by one Richard E Keffer after Respondent had withdrawn recogni tion from the Union are again as they were at hearing rejected because the withdrawal of recognition in February 1986 could not have been based on this March 1986 petition and if the February 1986 conduct of Respondent violated Sec 8 (a)(5) of the Act which would rather obvious ly improperly affect the bargaining relationship itself Guerdon Indus tries 218 NLRB 658 661 (1975) the violation precludes a finding the Re spondent in good faith in an unfair labor practice free atmosphere relied on the March 1986 petition B & B Gallo Pest Control Services 265 NLRB 535 539 (1982) Moreover if the withdrawal of recognition in February 1986 be not violative of the Act then Respondent thereafter had no bar gaining obligation and the March 1986 petition is surplusage 2 The unit appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act is Continued 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining relationship the parties entered into several collective bargaining agreements, the latest one expiring 6 March 1985 Negotiations for a new contract com menced in early 1985 and continued until 8 March 1985, when Respondent made what it termed its final and best offer After securing the names and addresses from Re spondent, the Union, on 28 March 1985, mailed a sum mary of Respondents proposal to unit employees, to gether with a mail ballot they were requested to mark as either an acceptance or rejection of Respondents pro posal The employees were further instructed to seal and mail their ballots to the Union's post office box by 11 April 1985 Before the ballots were due, Bernard Chitty filed a de certification petition4 with the Board s Regional Office on 4 April 1985 Shortly thereafter, Chitty presented Thomas Godfrey Jr, director of finance and administra tion for Respondent, with employee signatures on sheets of paper bearing the following heading We the em ployees of Colonna s Shipyard, Inc wish to remove the UIW as our bargaining representative We do not need this union as we would rather deal with the company di rectly Respondent was not presented with the original docu ments bearing the employees signatures 5 Godfrey testi feed that he took no steps to verify the signatures pre sented by Chitty, is not familiar with all of them, and did not see anyone sign The signatures presented to God frey, including 6 which are illegible, number 118 The payroll for the week ending 10 April 1985, which in cludes the petition filing date and probably the date Godfrey was given the signatures by Chitty, shows 216 unit employees Eight of the petition signers do not appear on the payroll at all 6 and two others listed on the payroll, Brook Louk and R E Wallace, are shown as discharged (Louk) and laid off during a probationary period (Wallace) Neither is credited with any hours worked that week I conclude both were terminated prior to that week For purposes of this computation the six illegible signatures are counted as valid Accordingly eliminating the 10 signers not employed during the week the petition was filed and reported to the Respondent by Chitty and deducting Louk and Wallace from the pay roll, comparison of Respondent's payroll with the signa lures delivered by Chitty indicates that 108 of 214 em ployees signed the petition This figure is however also questionable because five the signers' are listed as super visors on the 2 March 1986 payroll There is no separate listing or identification of supervisors on the 10 April 1985 payroll received in evidence as Respondents Exhib All production and maintenance employees employed at Respond cuts shipyard on Indian River Road at Norfolk Virginia excluding office clerical employees office janitor porter salesmen guards watchmen professional employees foremen superintendents and all other supervisors as defined in the National Labor Relations Act as amended 4 Case 5-RD-890 6 It appears the originals were submitted to the Board s Region 5 with the decertification petition No party sought to place them in evidence 6 Bruce Bremley Johnnie Clark George Ewell Bill Garrett Edward Holmes Lewis Hutcheson Jack Phillips and Jeff Phillips ' Michael DiGiovanni Randy Haddock Kenneth Holder John Par tarn and Aubrey Williams it 21 All that can be gleaned from the record indicative of their status on 10 April 1985 other than their later listing as supervisors on 2 March 1986, is their hourly wage in April 1985 of $10 30 for two of them, $10 80 for one, $10 50 for another, and $9 80 for the fifth, all ex ceeded Bernard Chitty s wage of $9 40 Of the five, there were four earning $1140 and one at $11 55 in March 1986, as opposed to Chitty s $10 50 Respondent has proffered nothing to clarify the status of these five men I am persuaded that a tentative inference may be drawn from their greater wage than Chitty in 1985 and 1986, and their listed supervisory status in 1986, that they were also supervisors in 1985 The state of the record on the matter being what it is, and the burden of proving its good faith doubt of union majority status resting on Re spondent as it does,8 which includes, I believe, the duty to present clear, unambiguous, and persuasive evidence, I perceive no sound evidentiary basis on which to base a conclusion Respondent could fairly count these five sig natures as those of unit employees or has produced ade quate, unambiguous evidence that it had reasonable cause to believe on the basis of a comparison of Chitty's lists of signatures with its payroll of 10 April 1985 that more than 103 of the 209 unit employees on the payroll had signed Chitty's documents Respondent has simply not met its heavy burden of proving Chitty's petition, fairly considered, was unambiguous objective evidence the Union had lost its majority status A decertification peti tion supported by less than a majority of the unit em ployees does not, standing alone, provide reasonable ground to doubt a union s majority status 9 Chitty s petition was dismissed, after a hearing by the Regional Director on 24 January 1986 because Chitty was found to be a supervisor within the meaning of Sec tion 2(11) of the Act No request for review of the Re gional Director's decision was filed That decision there fore is the law of that case Chitty s status was not reliti gated before me According to Godfrey, Respondent decided to with draw recognition from the Union on 20 or 21 February 1986 and implemented that decision on 24 February when it denied the Union access to its premises If one includes the six illegible signatures on the Chitty petition, 75 of the signatories were employed in the appropriate unit on 24 February which then numbered 358 Re spondent thus had no reasonable basis at the time of its withdrawal of recognition 10 to believe the Chitty peti tion was objective evidence the Union had lost majority status Respondent had earlier questioned the Union s majon ty by letter of 18 September 1985 to Brian Doherty the Union's Atlantic region coordinator, i i but had not with drawn recognition 8 See e g Louis Pappas Restaurant 275 NLRB 1519 (1985) Celanese Corp 95 NLRB 664 (1951) Terrell Machine Co 173 NLRB 1480 (1969) e Dresser Industries 264 NLRB 1088 (1982) 10 See NLRB Y Gulfmont Hotel Co 362 F 2d 588 589 (5th Cir 1966) for the proposition that Respondent to prevail must have had a reasons ble basis for its asserted belief at the time it withdrew recognition i i The letter reads as follows Continued COLONNA S SHIPYARD 139 The complaint alleges, Respondent admits, and the evidence shows that Respondent has on and after 24 February 1986, denied the Union access to its facility Respondent's admissions and other record evidence fur ther establish that Respondent has, since 28 February 1986 refused to comply with the Unions 26 February 1986 request for a listing of all unit employees and their addresses, dates of hire, classifications, and rates of pay Similarly, Respondent admits, and I find, that on or about 25 March 1986, Respondent, atting through its su pervisor and agent Al Denson, told Respondent's pipe shop employees that Respondent no longer has a union The legality of the denial of access, refusal to furnish in formation, and Denson s statement depends on whether Respondents withdrawal of recognition was lawful Respondent urges that it had a good faith doubt of the Union s majority status because there was (1) employee dissatisfaction with the Union, (2) union inactivity, and (3) heavy employee turnover in the bargaining unit since 1985 The General Counsel and the Union argue to the contrary In addition to the Chitty petition, Respondent enumer ates the following specific factors in support of its con tention employees were dissatisfied with the Union, and furnishes the evidence discussed below in support there of (a) Employee Statements of Disaffection with the Union (b) The Lack of Attendance at Union Meetings (c) The Defection of Union Stewards and Dissen sion on the Bargaining Committee (d) Mass Defections from the Union and the UIW s Failure to Attract New Members at Colon na s since March 1985 While the litigation of Chitty s petition proceeded there were additional things happening on which Re spondent bases its contentions Between 8 February and 27 June 1985 Respondent received 11 written requests from employees to terminate payment of union dues 2 written requests to terminate dues and revoke checkoff, 1 to stop dues deductions, and 1 to revoke membership and dues checkoff Apart from the fact this only reflects requests of 15 employees in a unit of more than 200 hardly a mass defection, it is well settled that neither expressions of lack of interest in union membership nor the number on dues checkoff establish a reasonable doubt This is in reference to your letter of September 4 1985 concern mg the layoffs at Colonna s Shipyard Inc Colonna s questions whether your Union represents a majority of the employees at the shipyard and whether you or your Union is authorized to make a request on their behalf As you know there is a question concerning representation pending before the National Labor Relations Board [This refers to Chitty s petition I Notwithstanding enclosed is a list of laid off employees that you requested Please be advised that furnishing you with a copy of this list does not acknowledge that your Union properly represents Co lonna s Shipyard Inc s employees and further that the furnishing of this list does not waive the Company s right to contest your Union s majority status of a union majority, especially in a right to work state like Virginia 12 Both before and during the processing of the petition employees complained about delays and general confu sion and inefficiency in the handling of claims under the contractual health insurance plan, which was referred to by some as the Union s plan Some erroneously believed that union membership was a prerequisite to receiving benefits under the plan and that a union membership card had to be presented as a condition of claim process ing These incorrect beliefs seem to have stemmed from advice from other employees including at least one union steward Starting in 1984, Respondent issued several memos to employees advising them that they did not have to be members in order to receive the insurance benefits and, after the memos issued, took other steps to convey the proper requirements for medical coverage to employees When Respondent, after a bargaining im passe, unilaterally implemented a Blue Cross/Blue Shield plan to replace the old contractual plan, employees ex pressed their approval of the change Respondent cites Upper Mississippi Towing Co, 246 NLRB 262 (1979), for the proposition that employee expressions of dissatisfac Lion with a health insurance plan for which they held the Union responsible provide an objective basis for doubt ing the Union's majority The case does not support the argument Employee complaints about the insurance plan in Upper Mississippi were only considered a factor be cause a union official admitted to the employers attor ney that the Union could not win an election unless and until it developed and implemented a new health insur ance plan satisfactory to the employees No such admis sion is present in this case, and I conclude that expres sions of unhappiness with the plan or its administration have not been shown to be equivalent to rejections of union representation in this case According to Godfrey after Chitty s petition was dis missed, and before recognition was withdrawn, several foremen advised Godfrey that employees wanted to vote on the Union's status and resented the Union's continued claim of representation Neither the foremen nor employ ees referred to were identified by Godfrey At or about the same time, employees Keffer and Jones approached Godfrey, told him they knew of the dismissal of the peti tion, said they felt an overwhelming number of employ ees wanted to get rid of the Union, and asked what could be done Although Godfrey says this conversation was one of the reasons for withdrawing recognition, he concedes that he was not given the names of the alleged ly dissatisfied employees The absence of evidence con firming the expressions of opinion by Keffer, Jones, and the foremen leaves nothing but speculative conclusions that Respondent may not reasonably rely 13 Godfrey testified that disagreement among the mem bers of the union bargaining committee the withdrawal 12 Terrell Machine Co v NLRB 427 F 2d 1088 (4th Cir 1970) enfg 173 NLRB 1480 (1969) Pioneer Inn Associates v NLRB 578 F 2d 835 (9th Cir 1978) enfg 228 NLRB 1263 (1977) Stratford Visiting Nurses Assn 264 NLRB 1026 (1982) Odd Fellows Rebekah Home 233 NLRB 143 (1977) 13 MRA Associates 245 NLRB 676 678 (1979) 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Union s senior shop steward from the Union s ne gotiating team, and what he perceived as the inability of the bargaining committee to propound a contract propos al reasonable and logical for the employees were factors causing Respondent to have a serious question of the Union s majority status in February and March 1985 The steward in question, Ardell Wright, allegedly told Respondent's operations manager, Buck Johnson that she did not want to take any part in the negotiations Neither Wright nor Johnson testified The only evidence of her statements is hearsay related by Godfrey on the basis of what Johnson told him Neither disagreement among members of the Union s team nor Wright s deci sion not to participate further in the negotiations can be logically interpreted as evidence that employees no longer wish to be represented by the Union 14 More over, for whatever it is worth Godfrey s conclusion as to what might be a reasonable and/or logical contract proposal by the Union is entitled to no deference and proves nothing but his opinion Low attendance at a union meeting to vote on Re spondent s proposal and other meetings the Union s fail ure to attract new members since the parties reached a bargaining impasse in March 1985, the Union s failure to process grievances, file unfair labor practice charges, or request bargaining over unilateral changes made by Re spondent, the failure to appoint new union stewards to monitor the contract after March 1985 and the fact that only 70 employees took part in the ratification vote on Respondents last offer, are all offered as support for a good faith doubt of union majority status The low attendance at meetings contention is based on employee reports to Godfrey particularly that only about 30 employees were present and voted on 8 March 1985 to reject Respondents contract proposals Doherty, the Union s vice president, estimates there were closer to 50 Which is more nearly correct is of no consequence for the Board and courts have held that poor attendance at union meetings does not warrant an inference that any employees do not desire continued union representation, particularly in a right to work state, which Virginia is 16 The same reasoning applies to the matter of only 70 em ployees voting on ratification This does not mean those who did not vote thereby rejected union representation Whether the Union attracted new members is of no con sequence because it is also well settled that resignation from or failure to acquire union membership does not support an inference of rejection of union representa tion 16 As to grievances the Union had filed very few grievances over the many years that its majority status went unchallenged It filed one in 1985 prior to the expi ration of the last collective bargaining agreement This was processed by the parties, but when the Union at tempted to file a grievance over a discharge after the agreement expired the Respondent refused to process it on grounds there was no contract and the termination 14 Flex Plastics 262 NLRB 651 657 (1982) International Medication Systems 253 NLRB 863 868 (1980) 15 See e g Hutcheson Hayes International 264 NLRB 1300 1306-1307 (1982) and cases cited therein 16 Terrell Machine Co 173 NLRB 1480 1481 (1969) enfd 427 F 2d 1088 1090 (4th Cir 1970) was final Respondent cannot be permitted to rely on a failure to file grievances when it serves notice it will not accept them Moreover, it appears that the filing of only one or two grievances a year has not been an unusual occurrence over the more than 20 year period of amica ble relations between the parties The Union s conduct with regard to grievances in 1985 does not show any diminution of the Union s majority status Likewise Re spondent s reliance on the Union s failure to file charges or request bargaining over Respondents unilateral changes in wages, hours, and working conditions as reason for questioning the Union s majority is patently without merit The parties agree the changes were made by Respondent after a good faith impasse was reached in negotiations The Union took no action other than a letter of protest on the matter because it received legal advice that Respondents conduct was proper and legal action would be unsuccessful How Respondent can seek to rely on the Unions failure to demand bargaining or take legal action doomed to fail against lawful conduct as support for an asserted doubt of the Union s majority is puzzling indeed but I need not decipher this reasoning because the facts do not support the inference Respond ent draws Unlike Nu Southern Dyeing & Finishing 17 on which Respondent relies to support its argument that the Union failed to appoint stewards to monitor the contract there is no evidence here that it was practically impossible to get anyone to hold union offices in the plant' during the contract term, as was the case in Nu Southern, or at any other time All this record shows is that in 1985 one steward left Respondents employment another resigned the position and neither have been replaced Inasmuch as there has been no collective bargaining agreement since March 1985 there has been no contract for stew ards to monitor It is elementary that one cannot monitor what does not exist There is no evidence it is practical ly impossible' or even difficult for the Union to secure shop stewards if and when they are needed It might here be noted that Respondents refusal to entertain grievances since the contract expired practically elimi nates a stewards ability to represent employees in en forcing any terms or conditions of employment Accord ingly I conclude the failure to appoint new stewards does not, as Respondent contends in and of itself illus trate the difficulties of the UIW in filing union official positions and both a low level of UIW activity and little employee support of the Union' Respondents personnel manager Rick Wellons testi feed that the employee turnover percentage from 1 Janu ary 1985 to 1 January 1986 was 82 7 percent He further testified that this is a typical turnover rate, no different from previous years that the total number of employees used included all employees, not just unit employees and that he guesses two thirds to three fourths of the em ployees were in the unit, but is not sure what percentage of the turnover was in the bargaining unit Wellons states that he does not know whether his statistics include laid 17 NLRB v Nu Southern Dyeing & Finishing 444 F 2d 11 (4th Cir 1971) COLONNA S SHIPYARD off or recalled employees as opposed to termination and new hires but avers that all laid off and recalled people were treated in his figures as if they were hired There are therefore some imponderables in Wellons statistics More to the point, the Board has long held that employ ee turnover standing alone is not enough to establish a reasonable doubt of union majority status because new hires are presumed to support a union in the same ratio as those they replace Furthermore, Wellons prepared his statistical survey at the request of Respondent's counsel for trial purposes, and Respondent therefore did not have this information to consider when it engaged in the con duct alleged to be unlawful 18 On the record as a whole I conclude that when Re spondent engaged in the conduct alleged in the com plaint it did not have a reasonable doubt based on objec tive considerations that a majority of the unit employees wanted to be represented by the Union Accordingly it is appropriate to discuss the alleged violations of the Act When Union Representative Mark Evans attempted to enter Respondents premises on 24 February 1986, he was denied access by the security officer on duty at the gate Les Naghiu, Respondents security director was then paged Naghiu went to the gate met with Evans, and told him Respondent had decided to deny access to union representatives because Respondent believed the Union had lost its majority status and had no valid claim of representation Respondent admits that Respondent has on and after that date denied Union access to its fa cility Godfrey testified, and Naghiu agrees, that the policy had been to permit access to union agents, but he instructed Naghiu to exclude them from the premises be cause Respondent concluded the Union no longer repre sented the employees I have found this conclusion was not based on objective considerations The collective bargaining agreement that expired in March 1986 contained the following provision ARTICLE XX VISITATION Any official representative of the Union shall be permitted to visit the Employers premises during working hours for the purpose of adjusting griev ances, consulting with employees or observing that the terms and conditions of this Agreement are being observed, provided the same does not inter fere with work in progress The General Counsel contends the Board agrees and I find that access provisions such as the foregoing sur vive the expiration of a collective bargaining agreement Houston Coca Cola Bottling Co 265 NLRB 766 777-778 (1982) Respondent does not claim and the evidence does not show that the Union was utilizing its access rights in a manner inconsistent with article XX of the contract or past practice The Board has recently reaf firmed that denial of such access rights for invalid rea 18 Laystrom Mfg Co 151 NLRB 1482 (1965) King Radio Corp 208 NLRB 578 (1974) Odd Fellows Rebekah Home 233 NLRB 143 (1977) 141 sons violates Section 8(a)(1) of the Act Gilliam Candy Co 282 NLRB 624 (1986) The denial of access in Gil Liam was not alleged to violate Section 8(a)(5) as the complaint before me does, but it was so alleged and so found in Houston Coca Cola, supra Accordingly I find and conclude Respondent has violated Section 8(a)(5) and (1) of the Act by denying access to its premises to union agents seeking admission for purposes encom passed by the terms of the visitation clause set forth above The Union s request of 26 February 1986 for a listing of all bargaining unit employees, together with their ad dresses, dates of hire, classifications and rates of pay which Respondent admits it did not honor asks for in formation relevant and necessary to the Union in per forming its duties as the unit employees representative All items requested must be produced because they are intrinsic to the core of the employer employee relation ship, 19 and presumptively relevant to the Union s role as bargaining agent' 20 Respondents refusal to carry out its duty to furnish this mfoimation21 violated Section 8(a)(5) and (1) of the Act That Respondents supervisor and agent Al Denson told employees, as Respondent concedes he did that Re spondent no longer has a union is found to violate Sec Lion 8(a)(1) of the Act because the Board has held that such deliberate misstatements at a time when the employ er has unlawfully withdrawn recognition from a union serves to undermine employee support for the Union and violated the Act 22 CONCLUSIONS OF LAW 1 Respondent is an employer 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 By refusing on and after 26 February 1986 to fur nish the Union with the names addresses dates of hire classifications and rates of pay for all employees in the bargaining unit representated by the Union, Respondent violated Section 8(a)(5) and (1) of the Act 4 By denying access to its premises to union agents seeking admission for purposes of adjusting grievances consulting with employees or observing that the terms and conditions of collective bargaining agreement are being observed Respondent violated Section 8(a)(5) and (1) of the Act 5 By telling employees they are not represented by the Union Respondent violated Section 8(a)(1) of the Act 18 San Diego Newspaper Guild v NLRB 548 F 2d 863 867 (9th Cir 1977) Procter & Gamble Mfg Co v NLRB 603 F 2d 1310 1315 (8th Or 1979) 20 Bozzuto s Inc 275 NLRB 353 (1985) quoting Georgetown Holiday Inn 235 NLRB 485 486 (1978) 21 NLRB v Acme Industrial Co 385 U S 432 437 (1967) 22 Flex Plastics 262 NLRB 651 659 (1982) 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I issue the follow- ing recommended23 ORDER The Respondent, Colonna's Shipyard, Inc., Norfolk, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Industrial Work- ers, Service, Transportation, Professional and Govern- ment of North America, Local 14, of the Seafarers Inter- national Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO as the exclusive bargaining representative of the employees in the follow- ing bargaining unit by refusing to furnish it with infor- mation it requests that is relevant and reasonably neces- sary to fulfilling its duty to represent the employees: All production and maintenance employees em- ployed at Respondent's shipyard on Indian River Road at Norfolk, Virginia, excluding office clerical employees, office janitor-porter, salesmen, guards, watchmen, professional employees, foremen, super- intendents, and all other supervisors as defined in the National Labor Relations Act, as amended. (b) Refusing to bargain with the Union by denying its agents access to Respondent's premises for purposes of adjusting grievances, consulting with unit employees, or observing that terms and conditions of a collective-bar- gaining agreement are being observed. (c) Telling unit employees they are not represented by the Union. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act. (a) Immediately furnish the Union with the informa- tion it requested by letter of 26 February 1986. (b) Notify the Union in writing that its access to Re- spondent's premises has been restored for the purposes enumerated in article XX of the collective-bargaining agreement between the parties which expired 6 March 1985. (c) Post at its Norfolk, Virginia facility copies of the attached notice marked "Appendix."24 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- 23 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. 24 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." sonable steps shall be taken by the Respondent to insure that these 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 Re- spondent has taken to comply.25 25 The circumstances of this case do not warrant the inclusion of a vi- sitatorial clause authorizing the Board , for compliance purposes, to obtain discovery from Respondent under the Federal Rules of Civil Procedure under the supervision of any United States court of appeals enforcing this Order. SUPPLEMENTAL DECISION CLAUDE R. WOLFE, Administrative Law Judge. I issued a decision in this proceeding on 6 February 1987. By Order of 13 August 1987, the Board directed that the record be reopened for the limited purpose of inquiring into Respondent's alleged involvement with, and possible responsibility for Supervisor Bernard Chitty's solicitation of employee signatures in support of the decertification effort in Case 5-RD-890.1 Chitty was included within the bargaining unit and covered by the collective-bargaining agreement. The test for determining Respondent's responsibility for Chitty's conduct is set forth in Montgomery Ward & Co., 115 NLRB 645 (1956), in which the Board states, in relevant part: When a supervisor is included in the unit by agree- ment of the union and the Employer and is permit- ted to vote in the election, the employees obviously regard him as one of themselves. Statements made by such a supervisor are not considered by employ- ees to be the representations of management, but of a fellow employee. Thus they do not tend to intimi- date employees. For that reason, the Board has gen- erally refused to hold an employer responsible for the antiunion conduct of a supervisor included in the unit, in the absence of evidence that the em- ployer encouraged, authorized, or ratified the super- visor's activities or acted in such manner as to lead employees reasonably to believe that the supervisor was acting for and on behalf of management. How- ever, a supervisor, although mistakenly permitted to vote in the election by agreement of the parties, re- mains an arm of management. To the extent, there- fore, that an employer's accountability for the con- duct of a supervisor does not depend on employee reaction, the employer's responsibility for the super- visor's action is not affected by the fact of inclusion in the unit. Hence, an employer is chargeable with knowledge of union activities acquired by such a supervisor. And the supervisor's statements are ad- missible as evidence of his employer's motivation in discharging individuals. In neither of these situa- tions is employee reaction a condition to employer responsibility. ' As noted in my original decision, the petition in Case 5-RD-890 was dismissed because it was filed by Supervisor Chitty. COLONNA S SHIPYARD The hearing was reopened and evidence relating to the remand order was taken from the parties on 1 and 2 De cember 1987 After considering the additional evidence 2 the demeanor of the witnesses as they testified, the able posttrial briefs filed by the parties on 29 January 1988, and the applicable precedents, I make the following find ings and conclusions The decertification petition in Case 5-RD-890 was filed by Chitty on 4 April 1985 Thomas Godfrey, Re spondent s director of finance concedes that Respondent supported the employees decertification petition after it was filed and, on 10 April 1985 Respondents president, W W Colonna, Jr, addressed a letter to employees reading, in pertinent part, as follows We have been advised by the National Labor Re lations Board (Board) that the Colonna employees have filed a petition with the Board indicating that they no longer wish to be represented by the union Within the next several weeks, a hearing will be held to determine the details of the secret ballot election Remember, our federal government protects your right to vote in this secret ballot election and to get rid of the union, if that is your desire Over the next several weeks, I look forward to meeting with you personally to discuss the many advantages of a union free company In the meantime, I would be happy to personally discuss with you any questions that you may have concerning this procedure In addition to supporting the 5 April 1985 petition after it was filed, Respondent relied on the signatures solicited by Chitty prior to filing the petition as evidence in sup port of its contention it had a good faith doubt of the Union s majority status based on objective considerations when it withdrew recognition on 24 February 1986 It has been held that by expressly relying on a petition cir culated by a nonsupervisory employee3 or a supervisor in the unit4 as a ground for challenging a union s majon ty an employer condones and ratifies the conduct of that employee in securing the petition signatures There is no need however to rely on that narrow ground to find em ployer responsibility here, nor would such a finding re solve the issue of responsibility for Chitty s conduct at the time he was so engaged Significant and persuasive evidence of Colonna s responsibility is found in the testi mony of employee witnesses regarding Chitty s conduct 2 Chitty is deceased His pretrial affidavit given to a Board agent was received in evidence consistent with Fed R Evid Sec 804(b)(5) and nu merous Board decisions such as Central Freight Lines 250 NLRB 435 (1980) The Board has specifically held that although admissible such an affidavit must be evaluated with maximum caution and only be relied on if and when consistent with extraneous objective and unquestionable facts United Sanitation Services 262 NLRB 1369 1374 (1982) Industrial Waste Service 268 NLRB 1180 fn 1 (1984) A rule of cautious scrutiny also applies to the testimony of witnesses regarding conduct of the de ceased See e g Sears Roebuck & Co 224 NLRB 558 (1976) Goodwater Nursing Homes 222 NLRB 149 fn 2 (1976) Consistent with the forego mg instructions I have evaluated Chitty s affidavit his testimony in Case 5-RD-890 and testimony by others about Chitty s conduct with great caution when such evidence has been relevant to this proceeding a Primrose Super Market of Salem 171 NLRB 1028 1036 (1968) 1 Connecticut Distributors 255 NLRB 1255 1261 (1981) 143 while he was soliciting signatures prior to the filing of the petition According to Murray Cahoon formerly employed by Respondent as a machinist, he observed Chitty passing his petition to four employees while they were working in March 1985 Cahoon asked Chitty to let him see the document Chitty rejoined that he would if Cahoon would sign it Cahoon then opined that the petition was full of crap To which Chitty replied that is the way the company wants it They want the union out of the yard Chitty then walked over to the production trailer where he stopped and talked to production manager Buck Johnson, Superintendent Bruce McCricket,5 and a couple of other employees As they talked, Chitty held the petition down by his leg Cahoon did not overhear the conversation Prior to talking to Chitty that day, Cahoon had been told by his brother in law, Jimmy Bal lance, who is stipulated to be a leadman and statutory su pervisor, that Chitty was passing a petition around On another occasion, within the same week, according to Cahoon, when Chitty and Sid Johnson, foreman and stip ulated statutory supervisor and others were working to gether, he heard Sid Johnson say We have enough sig natures to get the union out of the yard On cross examination Respondents counsel elicited from Cahoon testimony that when Cahoon saw Chitty solicit the four men to sign he also heard Chitty tell one employee it could jeopardize his job if he did not sign Notwithstanding Cahoon s acknowledgement he did not examine the document Chitty had I conclude from all the circumstances and the absence of evidence that Chitty was securing signatures for another purpose that it was the petition seeking decertification of the Union Cahoon s testimony is credited I have considered that he was discharged by Respondent about 3 months before the reopened hearing for insubordination but this consid eration is outweighed by the fact he appeared to be testi fying truthfully as best he recalled and without malice or fabrication and the further fact that his testimony is un controverted Jimmy Ballance s comment to Cahoon about the existence of Chitty s petition confirms God frey s testimony that employees, foremen, and everybody were talking about Chitty s petition at the time it was being circulated There is no evidence Respondent took any steps during the solicitation by Chitty to disavow his conduct or to assure employees it was neutral with re spect to Chitty s conduct and I therefore find Respond ent took no such steps With respect to Chitty s statements testified to by Cahoon they must be evaluated in the light of Montgom ery Ward's careful instruction that a supervisor included in the unit remains an arm of management and may make statements in the nature of admissions for which his em ployer must bear the responsibility That this remains the law is clear from the Board's adoption of Administrative Law Judge Stone s explication of the applicable rule in Connecticut Distributors, supra at 1259-1261 Thus, when Chitty told Cahoon that Respondent wanted the petition ° Buck Johnson is deceased Bruce McCncket Sid Johnson and Jimmy Ballance did not testify Chitty s affidavit does not contradict Cahoon 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and wanted the Union out of the yard he was acting as Respondents agent making an admission against interest that Respondent was supporting Chitty s solicitation in an effort to rid itself of the Union Moreover, Sid John sons comment to Chitty and others that we had enough signatures to get the Union out of the yard may fairly be considered an admission by a supervisor and agent not included in the unit that Respondent supported the solicitation and would utilize its fruits as a basis for rejection of the Union William Hill was an employee when Chitty was solic iting signatures for the petition in 1985, but was later forced to resign for reasons unrelated to union or other protected activity Hill signed Chitty s petition on 29 March 1985 and relates the following sequence of events On 28 March 1985 Chitty asked him to sign the petition to do away with union representation, and stated This is for getting rid of the union The compa ny is going to offer you a lot of benefits and help you out in the long run Hill walked away without respond ing On 29 March after the whistle blew to start the workday, Chitty called Hill into his office as usual to re ceive a job assignment When Hill was receiving his as signment, Chitty said, While I have got you here go ahead and sign this," referring to the petition which lay on the desk Hill and employee Bruce Perkins signed While the signing of the petition was taking place, em ployee Jack Jones came in with another copy of the peti tion, and told Chitty he had secured a lot of signatures the night before Chitty replied that he would talk to Jones later Bruce Perkins did not testify Neither Chit ty s pretrial affidavit nor his testimony in Case 5-RD- 890 speak to Hill's testimony Hill s testimony is there fore uncontroverted Even though Hill may feel some re sentment against Respondents handling of his forced res ignation, which he denies, nothing in his demeanor his testimony or elsewhere in the record convinces me that his testimony is a fabrication or embellished for this pro ceeding Crediting Hill s testimony as I do, I conclude that Chitty s 28 March comments to Hill conveyed that Respondent would provide additional benefits and other assistance to employees if it was rid of the Union I do not find that this statement violated Section 8(a)(1) be cause it is not so alleged and for the further reason that Chitty was a unit member See Montgomery Ward, supra I do however find that Chitty s statement indicated to Hill that Respondent was supporting Chitty's decertifica tion efforts, and is in the nature of an admission by an agent of Respondent that it in fact was Hill s testimony also demonstrates that Chitty used his office for the pur pose of soliciting signatures during the workday and as a place for other participants in the decertification effort to report their progress to Chitty Dale Tiller a sometimes confused witness who was discharged in June 1986, testified that, during a conversa tion with Chitty in March 1985, Chitty advised him the insurance plan offered by Respondent in negotiations was better than that of the Union When Tiller said he would like to know more about it Chitty arranged a meeting with Thomas Godfrey for later that day Ac cording to Tiller, Chitty took him to Godfrey s office where Godfrey explained the insurance plan to him for about 2 1/2 hours Tiller claims Chitty was there the whole time and left the office with Tiller Later that day, in the storeroom, Chitty asked if Tiller was ready to sign up Tiller thinking he was being asked to subscribe for insurance, said he was Chitty gave him the petition seek ing the expulsion of the Union as employee representa tive Tiller refused to sign Chitty said this was what he wanted Tiller to sign Tiller protested he thought Chitty had asked him to sign for insurance Chitty said that was not the case and that once the Union was busted out of the yard Tiller could sign up for insurance Tiller still refused to sign Chitty said he had to sign then because Chitty was taking the petition to Richmond that night They then repaired to the office of Blackie' Black wood storeroom foreman and stipulated statutory super visor There Blackwood further explained the insurance When Tiller asked why Blackwood had not explained it earlier, Blackwood said he did not want to get involved and was a neutral party After this Tiller/Blackwood ex change, Chitty told Tiller that the Company had busted him back so that he could pass the petition around Tiller also testified that during the time period Chitty was so liciting signatures for the petition, Sid Johnson told him that they are going to get rid of the union and that I Tiller was on my way out, too Neither Blackwood nor Sid Johnson testified Chitty in his 5 June 1985 pretrial affidavit, states, in relevant part I did tell some employees that in my opinion there was a possibility that the company may put the insurance plan they proposed to the union during negotiations in effect if the union was voted out I also told some employees what I knew about the insurance plan From what I have heard about the plan it is almost the same insurance plan that I had when I worked for about 4 1/2 years at Allied I did not take any employees to see Tom God frey, the company s assistant business manager to discuss the insurance and pension plans the compa ny proposed to the union I told employees that if they wanted to know more about the plans to go and see Godfrey Its (sic) my understanding that one or two employees went and saw Godfrey, but I didn t go with them I know for sure that one em ployee went to see Godfrey after work one day I know this to be true because Bill and I were leaving work that day and he told me that he was going to see Godfrey I didn t go into the office I left the yard I never told any employees that I had been busted back from leadman so that I could pass around the petition I have never been a leadman while working for the company On 24 July 1985 Chitty testified in Case 5-RD-890 The portions of the transcript of record in that case placed in evidence by the parties reveal nothing relevant to Tiller s testimony, and affirmatively show Chitty was precluded by the hearing officer from testifying regarding his circu lation of the petition or any possible involvement of the Respondent in that circulation Tiller testified at the COLONNA S SHIPYARD 145 same representation case hearing The portions of his tes timony, on 25 July 1985, at that hearing which were placed in evidence in the case before me and his sworn statement given to the Board on 24 April 1985, are con sistent with Tiller s testimony before me in this case except for the fact that when he testified on 25 July 1985, he placed the time of Chitty s comments about being busted back as roughly around May Tiller s 24 April 1985 statement places it on 27 March 1985 In asmuch as the event thus clearly took place prior to 24 April 1985, I find 27 March 1985 is the more probable date Godfrey testifies that he had two discussions with Tiller of approximately 15 or 20 minutes each in which they discussed the insurance plan proposed by Respond ent Godfrey asserts that Chitty was not present during these discussions, but does not recall whether Tiller told him that Chitty had sent him to Godfrey to talk about insurance Godfrey explains that employees had ques tions about Respondent s insurance plan and he became the one who explained the plan to them when they in quired about it Tiller s testimony is clearly not of recent invention or significantly inconsistent with prior statements I do not however, believe it likely that Godfrey would spend 2 1/2 hours with him explaining the insurance plan It is more probable and I credit Godfrey that his meetings with Tiller were of 15 to 20 minutes in duration I fur ther credit Godfrey, who was quite certain and believ able on this point, that Chitty was not present during the Godfrey/Tiller conversations I credit Tiller that Chitty conducted him to Godfrey for the insurance explanation Tiller's uncontroverted testimony regarding Sid John son s comments is believable and credited The failure of Blackwood to testify and the absence of any other good reason not to credit Tiller regarding his talk with Black wood persuade me that Tillers recitation is truthful Treating the affidavit of Chitty and the various state ments of Tiller regarding Chitty s conduct with caution as established law requires I credit Tiller in which he and Chitty differ regarding the content of Chitty's state ments Tiller was imputing the same conduct to Chitty while Chitty was still alive, and Tiller was then still an employee not likely to falsely testify against those who controlled his employment future Federal Stainless Sink 197 NLRB 489 491 (1972) I therefore cannot conclude that Tiller s testimony is designed to take advantage of Chitty's inability to now reply nor do I conclude that Tiller s discharge prior to his current testimony but after his earlier consistent sworn statements is any reason to now disbelieve him I detected nothing in his demeanor to warrant discounting his testimony, and the mere fact I credit Godfrey over Tiller on some points does not re quire a finding of falsus in uno, falsus in omnibus NLRB v Universal Camera Corp 179 F 2d 749 754 (2d Cir 1950) Here again Chitty has made an admission that Respondent was supporting his decertification conduct and Sid Johnson admits Respondent is trying to get rid of the Union The General Counsel also presents Michael Richards testimony that in early March 1985, about 2 weeks before he saw the petition being circulated by employees Keffer and Jones he overheard employee Poindexter and Billy Colonna III Respondents special projects manag er, discussing the pension plan and how employees would benefit if the Union were not present Richards entered the conversation by asking how employees would benefit Colonna said the 60 cents devoted to the welfare plan would return to employees and the other benefits would be as good or better if the Union were out Colonna s statements are not alleged to be unlawful, and do nothing to establish any connection between Re spondent and Chitty s conduct There is sufficient evidence to conclude that Chitty, and other employees, solicited employee signatures for the decertification effort during working time The evi dence is equally as strong that various other types of so licitations, including prounion solicitation, were permit ted during working time I am persuaded that Respond ent s solicitation and distribution rules were simply not being enforced in 1985 either prior to, during, or after the March solicitation That they may have been en forced some time later in 1986 is irrelevant to the inquiry into Chitty's conduct Godfrey acknowledges that Chitty s solicitation con duct was widely discussed at Respondents facility while it was going on, and that Respondent supported the de certification effort after the 5 April 1985 petition was filed by Chitty The 10 April 1985 letter of Respondent s President W W Colonna Jr, confirms that support, and Respondent adopted the results of Chitty s efforts as a basis for withdrawing recognition Chitty as an arm of management, made statements in the nature of admis sions that he was acting on Respondents behalf" when he solicited signatures from Cahoon Hill, and Tiller Similarly Sid Johnson's comments testified to by Cahoon and Tiller imply company involvement in Chit ty s efforts The statements of Chitty and Sid, Johnson are sufficient to warrant findings that (1) Respondent's agents acted in such a manner as to lead employees rea sonably to believe Chitty was acting for and on behalf of management, and (2) Respondent encouraged and au thorized Chitty s solicitation Accordingly, I conclude and find that Respondent is responsible for Chitty s acts in circulating the decertification petition in March 1985 and may not rely on the signatures secured by Chitty as a basis for withdrawing recognition This conclusion and finding reinforces my earlier conclusion to which I now adhere 7 that Respondent has not demonstrated sufficient objective evidence to support its asserted good faith and reasonably grounded doubt of the Union s majority status when Respondent withdrew recognition from the Union in February 1986 Additional Matter Raised on Remand At the outset of the hearing on remand, counsel for the General Counsel advised he would ask as additional remedy that Respondent rescind its withdrawal of rec ognition and that a general bargaining order be granted 6 Connecticut Distributors supra at 1261 7 My original decision recited a presumption that new hires support a union in the same ratio as those they replace The Board has since found there is no basis for such a presumption Buckley Broadcasting Corp 284 NLRB 488 (1987) 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in this case " I advised the General Counsel that I was not inclined to grant these additional remedial measures In his posttrial brief on remand, counsel for General Counsel states that, ` based upon his findings that the Re spondent improperly withdrew recognition from the Union, a matter which has been fully litigated , we are re questing that the Administrative Law Judge expand the proposed remedy to recognize and bargain with the Union " The complaint does not allege nor has the General Counsel sought to amend it to allege either that Re spondent has violated the Act by refusing to meet and bargain on request or by unlawfully withdrawing recog ration from the Union Counsel for the General Counsel appearing in the original hearing in September 1986 spe cifically pointed out in his posttrial brief at page 5, foot note 9, Respondent's withdrawal of recognition was never the subject of any unfair labor practice charge filed by the Union and therefore never the subject of any unfair labor practice complaint allegation ' To the extent my earlier decision states or implies that the withdrawal of recognition was unlawful under the Act, my decision is in error because the General Counsel specifically de clined to so allege The most that I can and do find re garding the withdrawal of recognition is that it was not based on sufficient objective evidence to support a rea sonable doubt of the Union s continuing majority, and therefore is not a valid defense to a finding that Re spondent violated the Act in the ways alleged in the complaint It logically follows from the rejection of Re spondent s reasons for withdrawing recognition that Re spondent's bargaining obligation continued to exist on and after 24 February 1986, the date of the withdrawal Nevertheless, I do not believe the state of the pleadings and the General Counsels specific disavowal of any con tention the withdrawal of recognition was an unfair labor practice, notwithstanding the fact the validity, but not the legality, of the withdrawal of recognition has been litigated, will fairly permit me to grant the broad relief requested by the General Counsel The record , as supplemented on remand , requires no modification of the Conclusions of Law or recommended Order set forth in my decision of 6 February 1987, and they are accordingly reissued