E. L. Wagner Co., Inc.

E L WAGNER CO E. L. Wagner Company, Inc. and Local Union No. 146, Laborers International Union of North America, AFL-CIO. Case 39-CA-3510 May 31, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 7, 1988, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that a collective-bargaining re- lationship pursuant to Section 9(a) of the Act exist- ed between the Respondent and the Union because the relationship predated 1959 and the enactment of Section 8(f) of the Act. On that basis the judge found that the Respondent failed to bargain in good faith in violation of Section 8(a)(5) and (1) and Section 8(d), and discouraged union member- ship in violation of Section 8(a)(1) and (3), by fail- ing, since December 8, 1986, to make contractually required contributions to the Union's fringe benefit fund on behalf of bargaining unit employees who were not members of the Union; violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and refusing to bargain regarding the changes in the terms and conditions of employ- ment; and violated Section 8(a)(5) and (1) by failing to supply the names and addresses of its employees in the unit to the Union. We reverse in part. The Respondent is engaged in the business of constructing swimming pools in the State of Con- necticut, and has had a collective-bargaining rela- tionship with the Union covering its employees since before 1959 and the enactment of Section 8(f) of the Act. Historically, the Respondent and Union have not met to negotiate contracts, but the Re- spondent has executed acceptance agreements pur- suant to which it agreed to be bound by contracts made between the Connecticut Laborers' District Council (a bargaining unit of which the Union is part) and two multiemployer bargaining associa- tions-Associated General Contractors (AGC) and Connecticut Construction Industries Association 493 (CCIA). The Respondent is not a member of either multiemployer association. In addition to executing various acceptance agreements, the Respondent signed an interim agreement in 1981 to avoid being involved in a strike against the multiemployer associations. That agreement, effective from April 1, 1981, to March 31, 1984, bound the Respondent to the subsequent final Building (AGC) and Heavy & Highway (CCIA) agreements for those years. Those agree- ments contained successor clauses by which the Respondent would be bound by subsequent AGC and CCIA agreements unless timely notice was given. No timely notice was given and the Re- spondent became bound to the 1984-1987 AGC and CCIA agreements. The CCIA agreement, under which the Respondent was making benefit fund contributions, expired May 31, 1987. December 8, 1986, the Respondent stopped making benefit fund contributions for its employees who were not union members. On January 30, 1987, it sent the Union notice of termination. The president and owner of the Respondent, John Gedney, testified that he withdrew recognition from the Union on April 30, 1987. On May 22, 1987, the Respondent filed an election petition with the Board that was later dismissed by the Regional Director because of this proceeding.' On June 5, 1987, the Union requested the names and addresses of all the Respondent's employees. The Respondent never responded to the Union's demand and, on June 8, 1987, the Union filed the unfair labor prac- tice charges in this case. In Brannan Sand & Gravel Co., 289 NLRB 977, 979 (1988), issued after the judge's decision in this case, the Board held that construction industry col- lective-bargaining relationships established before the enactment of Section 8(f) of the Act cannot be presumed to be 9(a) relationships, but that full 9(a) status in construction industry relationships will only be found if the "union has been certified fol- lowing a Board election or has been recognized on 1 On August 25, 1988, the Board in Case 39-RM-40 affirmed the Re- gional Director's dismissal of the petition, but relying on a different ra- tionale We found, as we do here, that the relationship between the par- ties was pursuant to Sec 8(t) of the Act as there was no evidence that the Union had ever achieved majority status within the meaning of Sec 9(a) of the Act Further, the evidence in that proceeding showed only that the parties were bound to the AGC agreement, which expired on April 30, 1987, and that the petition was not filed until May 22, 1987 (The CCIA agreement, which expired on May 31, 1987, was not in evi- dence in that proceeding) Applying John Deklewa & Sons, 282 NLRB 1375 (1987), sub nom Iron Workers Local 3 v. NLRB, enfd 843 F 2d 770 (3d Cir 1988), we found that after the parties' 8(f) agreement expired on April 30, the Union enjoyed no presumption of majority status and, as the Union had made no present claim of majority status, the petition was properly dismissed As the 8(f) relationship between the parties ended on May 31, 1987, and no party has requested reconsideration in Case 39- RM-40, we find no cause at this time to reinstate the petition 294 NLRB No. 38 494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the basis of an affirmative showing of majority sup- port." John Deklewa & Sons, supra, set out the princi- ples to be applied in 8(f) cases, and cases since Deklewa have clarified the means by which a party can prove 9(a) status in construction industry bar- gaining relationships. As the Board stated in Ameri- can Thoro-Clean, 283 NLRB 1107, 1108-1109 (1987), under Deklewa, the party to an 8(f) relation- ship that is asserting 9(a) status, would have the burden of affirmatively prov- ing the existence of such a relationship, through either (1) a Board-conducted repre- sentation election or (2) a union's express demand for, and an employer's voluntary grant of, recognition to the union as bargain- ing representative, based on a showing of sup- port for the union among a majority of the employees in an appropriate unit. There is no evidence here that the parties' rela- tionship is anything but an 8(f) relationship, be- cause there is no evidence of a Board-conducted election nor an express demand for and voluntary grant of recognition to the Union as a majority representative of the employees at any time during their relationship. We thus conclude that the Re- spondent's collective-bargaining relationship with the Union was an 8(f) relationship. Therefore, the obligation to bargain is deter- mined by the following principles as set out in Deklewa: (1) a collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. [282 NLRB at 1377-1378.] In applying Deklewa to this case, we uphold in part the judge's conclusion that the Respondent violated the Act. The parties' collective-bargaining agreement is enforceable under Section 8(a)(5) of the Act. However, the Union enjoyed no presump- tion of majority status following the contract's ex- piration date of May 31, 1987. The Respondent was entitled to repudiate its bargaining relationship on that date and could lawfully refuse to negotiate or adopt a successor agreement. Accordingly, we find that the Respondent violat- ed Section 8(a)(1), (3), and (5) of the Act by failing to make the contractually required benefit fund contributions for employees who were not mem- bers of the Union, under the 1984-1987 CCIA Heavy & Highway Agreement , from December 8, 1986, to May 31, 1987, and shall limit the make- whole remedy accordingly.2 We also find that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union on April 30, 1987, approximately 1 month before the 8(f) bargaining relationship expired . Further, the Re- spondent did not violate Section 8 (a)(5) and (1) by its failure to supply the Union with the names and addresses of its employees because the Union's demand, on June 5, 1987 , was after the 8(f) collec- tive-bargaining relationship had ended , and during a period of time when the Respondent no longer had any contractual obligations toward the Union. ORDER The Respondent, E. L. Wagner Company, Inc., Bridgeport, Connecticut, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition during the term of a collective-bargaining agreement from Local Union No. 146, Laborers International Union of North America, AFL-CIO as the exclusive collec- tive-bargaining representative of the Respondent's employees covered by the agreement. (b) Refusing to adhere to, until the May 31, 1987 expiration date, its 1984-1987 collective-bargaining agreement with the Union. (c) Unilaterally ceasing to make contributions to the Union's fringe benefit funds as provided in the collective-bargaining agreement that was binding on the Respondent until May 31, 1987. (d) Discouraging membership in the Union by failing and refusing to apply the terms and condi- tions of the aforesaid collective-bargaining agree- ment to all employees who were in the bargaining unit. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. 2 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of the proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments Therefore, any additional amount owed with re- spect to the health and welfare fund and pension plan shall be determined in accordance with the procedure set forth in Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) E L WAGNER CO (a) Make whole unit employees by making all fringe benefit contributions, as provided in the ap- plicable collective-bargaining agreement, which were not paid from December 8, 1986, to May 31, 1987, and which would have been paid in the ab- sence of the Respondent's unilateral discontinuance of contributions, and by reimbursing unit employ- ees for any expenses ensuing from the Respondent's failure to make those contributions. (b) 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. (c) Post at its place of business copies of the at- tached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Direc- tor for Region 34, after being signed by the Re- spondent'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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 3 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. WE WILL NOT, during the term of a collective- bargaining agreement, repudiate that agreement and withdraw recognition from Local Union No. 146, Laborers International Union of North Amer- ica, AFL-CIO as the exclusive collective-bargain- ing representative of our employees covered by the agreement. WE WILL NOT unilaterally cease making contri- butions to the Union's fringe benefit funds as pro- 495 vided in the collective-bargaining agreement that was binding on us from 1984 to May 31, 1987. WE WILL NOT discourage membership in the Union by failing and refusing to apply the terms and conditions of the collective-bargaining agree- ment to all employees who are in the bargaining unit. 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 make whole our unit employees by making all fringe benefit contributions, as provided in the applicable collective-bargaining agreement, which were not paid from December 8, 1986, to May 31, 1987, and which would have been paid absent our unilateral discontinuance of such contri- butions, and by reimbursing unit employees for any expenses ensuing from our failure to make such contributions. E. L. WAGNER COMPANY, INC. Michael A. Marciones, Esq., for the General Counsel. Robert E. Jackson, Esq., for the Respondent. Robert M. Chevrie, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me in January 1988. The charge was filed on 8 June 1987, an amended charge was filed on 22 July 1987, and a second amended charge was filed on 13 August 1987 The complaint was issued on 3 September 1987 and alleged in substance. (1) That the Union has been the collective-bargaining representative of the Employer's laborers since before 1959. (2) That since 8 December 1986 (a period within 6 months of the charge being filed), the Respondent, in violation of Section 8(a)(1), (3), and (5) of the Act has failed to make certain contractually required payments to various benefit funds on behalf of bargaining unit em- ployees who were not members of the Union. (3) That since on or about 5 June 1987, the Respond- ent, in violation of Section 8(a)(1) and (5) of the Act, has refused to furnish to the Union the names and addresses of its employees. (4) That in or about June 1987 the Respondent has withdrawn recognition from the Union A critical issue in this case is whether the Union has historically been the bargaining agent by virtue of Sec- tion 9(a) or Section 8(f) of the Act. The Employer con- tends that to the extent it recognized the Union, such recognition was pursuant to Section 8(f). The General Counsel and the Union contend that recognition was ini- tially accorded to the Union prior to 1959 and before Section 8(f) was enacted. They therefore contend that 496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such recognition was granted in accordance.with Section 9(a) of the Act. Section 8(f), inter alia, permits an employer and a union, in the construction industry, to enter into collec- tive-bargaining agreements notwithstanding that the Union does not represent a majority of the employees in the unit for which recognition has been granted. The Board's interpretation of the law governing this provi- sion of the Act is set forth in John Deklewa & Sons, 282 NLRB 1375 (1987). Based on the entire record in this case' including my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the following FINDINGS AND CONCLUSIONS A. Jurisdiction The Respondent admits and I find that it is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also conclude that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. B. Operative Facts The Employer through one of its divisions is engaged in the business of constructing swimming pools.2 It had been, for many years, located in Darien, Connecticut. However, in December 1986, it moved to Bridgeport, Connecticut. The founder of the Company was Edward P Wagner. In January 1987 the business was purchased by Wagner's son-in-law, John C. Gedney, who has been employed by the Company since 1963. Since about 1983, Gedney has been the Company's president. The building of swimming pools in Connecticut and Westchester is seasonal. In this regard, the record shows that the Company, for many years, has employed a core group of laborers who return to work each season. Addi- tional laborers are hired as needed. The season normally runs from March through November. There has existed a long-term collective-bargaining re- lationship between the Company and the Union. Gedney acknowledged that the Company has abided by the terms of various union contracts since the time he has been employed. Moreover, in his pretrial affidavit, Gedney stated that he had been informed (no doubt by his father-in-law), that a collective-bargaining relation- ship with the Union dates back to the 1930s. Similarly, Vincent Falcioni who was a vice president of the Com- pany and who was employed from 1946 to 1986, testified that for the period of his employment, the Company has employed union laborers and has been known as a "union pool builder." Richard Weiss, the executive di- rector of the Connecticut Laborers Funds, testified that the various funds which are administered by his office received moneys from employers having contracts with the Union. He produced documents showing that during ' The unopposed motion by the Respondent to correct the transcript Is granted 2 A second division of the Company services swimming pools That di- vision and its employees are not involved in this case the period from July to December 1956, the Respondent made such contributions to the various funds on behalf of persons employed by it. (These were the oldest pay- ment records of the Respondent that Weiss could find and he testified that old contribution records generally no longer exist.) Based on the above, I conclude that the evidence es- tablishes that the Company recognized the Union before 1959 in relation to its employees who were engaged in the construction of swimming pools (i.e., laborers) The evidence shows that, historically, the Company and the Union have not met face to face to negotiate contracts Rather, the practice has been for the Company to execute an "Acceptance of Agreements" pursuant to which it agrees to be bound to the contracts made be- tween the Connecticut Laborers' District Council (of which Local 146 is a part), and two multiemployer bar- gaining associations. The Associations, neither of which the Respondent is a member, are the Associated General Contractors of Connecticut Inc. (AGC), and the Con- necticut Construction Industries Association Inc. (CCIA). The agreement with the AGC covers building construction work and the CCIA agreement covers heavy, highway, and tunnel work. Although agreeing to be bound to both contracts (which are substantially simi- lar), it seems that the Respondent, throughout the years, has paid the wages and benefits set forth in the CCIA contracts. On 1 April 1981 the Respondent and Local 146 en- tered into an "Interim Agreement." In doing so the Em- ployer agreed to be bound by the contracts with the aforesaid Associations when they were executed, effec- tive from 1 April 1981 to 31 March 1984. This interim agreement was made because there was a strike in progress against the Associations, and the Respondent opted to avoid the strike by signing the interim agree- ment. Because the Respondent agreed in advance to be bound by the Associationwide contracts when made, it was not necessary for the Respondent to subsequently sign the usual "Acceptance of Agreements." Ultimately contracts were executed between the Connecticut Labor- ers' District Council and the two Associations With respect to the period 1984 to 1987, the evidence shows that the Company neither signed an interim agree- ment nor an "Acceptance of Agreements." Nevertheless, the evidence shows that there was "agreement" by the Company to be bound by the Association contracts in effect during that period of time. For one thing the 1978 Acceptance of Agreements stated that the employers agreed to be bound by "any successor agreements" unless the employer or the Union "gives timely, written notice to the other party of its intentions to change or terminate a particular collective bargaining agreement in accordance with its terms." (No notice of termination was given by the Union or the Company after the 1981 to 1984 contract expired.) Also, the evidence shows that during the 1984-to-1986 period, the Employer complied with the wage and benefit provisions of the CCIA con- tract at least insofar as those of its employees who were union members Finally, the evidence shows that the Company and the Union negotiated about several prob- E L WAGNER CO lems during this period which entailed interpretation of the contract.3 As of December 1986 and before the seasonal layoff, the Respondent as evidenced by its remittance reports, had 11 employees working in the construction division. On 30 January 1987 the Employer sent a mailgram to the Local 146's offices This read: To the extent we may be bound to collective bar- gaining agreements with your union and to the extent said agreements are scheduled to expire this year but may automatically renew absent notice to terminate or renegotiate a successful agreement, said notice is hereby given. (The word successful is obviously a typographical error and is meant to be successor.) The Union's business agent, Roy Varbero, denied that he received the mailgram described above However, he conceded that there are three other unions sharing the building and that mail for all is haphazardly handled Varbero acknowledged that because the mail distribution procedure is somewhat chaotic, even certified mail has been lost. I therefore cannot attribute the failure of the Union's officials to receive the mailgram to be the re- sponsibility of the Company On the contrary, I believe the Company took reasonable means to notify the Union and that its notice was sufficient under the terms of the Acceptance of Agreements At the end of March 1987 the Employer began rehir- ing for the new season.4 The evidence shows Whether Contribu- Time of Recall Name of Employee Member of tions Made or Hire Union to Benefit Funds I M. Cerquiera March Yes Yes 2 E Cerra March Yes Yes 3 A Colacicco March Yes Yes 4 E Texeira March Yes Yes 5' J Texeira March Yes Yes 6 M Granata March Yes Yes 7 J Biasetti March No No 8 T Underhill March No No 9 G Thomas April Yes Yes 10 D Colacicco April Yes Yes 11 D Escaleira April No No 12 A Pinto April No No 13 L Munoz April No No 14 J Portella May No No 3 One problem arose when the funds did an audit and discovered that the Company had failed to make fund contributions for some of its em- ployees in 1984, 1985, and 1986 (The employer claimed that these indi- viduals had not done bargaining unit work) Ultimately, the dispute was resolved whereby the employer paid the arrearages for some but not all the employees for whom claims were made Two employees signed affi- davits to that effect, but they were not in the unit and the funds relin- quished claims as to these two 4 In March the employer held a meeting with its union employees and told them it had given notice to the Union of its intent to terminate the contract 497 On 31 March 1987 the collective- bargaining 'agreement expired and on 20 May the Employer filed a petition for an election in Case 39-RM-40 In the affidavit filed with the RM petition, the Employer claimed that there were 16 employees in the unit of which only 7 were union members On 5 June 1987 the Union's lawyer wrote the Compa- ny as follows- . This office represents Laborers' Local 146 and the Connecticut District Council of Laborers'. I hereby request that you provide me with the names and home addresses of all employees on your pay- roll from January 1, 1987 to the present. Please for- ward the response to this request directly to this office. The Company did not respond, although at the hear- ing, it took the position that it would furnish the names and addresses of the bargaining unit employees pursuant to Excelsior Underwear, 156 NLRB 1236 (1966), if and when an election is ordered On 8 June 1987 the Union filed the instant unfair labor practice charge. Thereafter the Acting Officer in Charge of Subregion 39 held the RM petition in abeyance pend- ing investigation of the alleged unfair labor practices. The RM petition was subsequently dismissed on 28 Sep- tember 1987 (subject to reinstatement), because the Su- bregion issued this complaint which, in its opinion, made allegation which, if proven, would preclude the existence of a question concerning representation. This was ap- pealed to the Board on 5 October 1987. There is no dispute that the Company has withdrawn recognition from the Union. Nevertheless, despite taking the position that it has no further contractual obligations to the Union, the Company has continued to make con- tributions to the union funds on behalf of those of its em- ployees who are union members. Such contributions have been made, however, at the rates set forth in the expired contracts. The Company has continued to make these contributions in an effort to maintain the status quo pending the outcome of this case before the National Labor Relations Board. Analysis Regarding the withdrawal of recognition, the Employ- er contends that whatever agreements it had with the Union were pursuant to Section 8(f) of the Act and that its withdrawal , at the agreements' termination date, was therefore permissible under John Deklewa & Sons, 282 NLRB 1375 (1987). The General Counsel contends, however, that the un- derlying collective-bargaining relationship was not one pursuant to Section 8(f), but rather was made under Sec- tion 9(a) of the Act. As such, the General Counsel argues that the rules governing when a company may lawfully withdraw recognition are those applicable to the everyday types of bargaining relationships outside the construction industry. Thus, the General Counsel contends that in order to justify its withdrawal of recog- nition upon the termination of the contract, the employer must affirmatory prove that it had objective grounds for 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having a good-faith doubt as to the Union's continuing majority status See, e g., Hearst Corp., 281 NLRB 764 (1986). I think the General Counsel is correct. In my opinion the evidence establishes that the collec- tive-bargaining relationship between the Company and the Union dates from before 1959. Thus, Gedney, in an affidavit, stated that as far as he knew the collective-bar- gaining relationship dated back to the 1930s. Also, Fal- cioni, previously a vice president of the Company, testi- fied that the Company has employed union laborers during the period of his employment, which was from 1946 to 1986, and that it has been known as a "union pool builder." Other evidence, in the form of old records, shows that the Company has made contributions to union funds on behalf of its employees since at least 1956. In short, the General Counsel has adduced substan- tial evidence of a collective-bargaining history dating back before 1959 and the Company has not presented any contrary evidence. Moreover, it is plain that the bar- gaining history has entailed recognition on behalf of em- ployees working as laborers in the construction of swim- ming pools. Section 8(f) of the Act, which permits minority recog- nition of a union in the construction industry, was en- acted in 1959. Prior to that time, employers, and unions in the construction industry operated under the same rules as any other employers insofar as establishing and maintaining collective-bargaining relationships. Thus, any recognition of a union by an employer in the construc- tion industry before 1959 had to be governed by Section 9(a) and not Section 8(f) of the Act Under Section 9(a) an employer and a union can law- fully enter into a collective-bargaining relationship (via voluntary recognition), if the union in fact represents a majority of the employer's employees in an appropriate unit. If such recognition is granted at a time when the union does not represent a majority, then such recogni- tion would violate Section 8(a)(2) of the Act. Ladies Garment Workers (Bernhard-Altmann) v. NLRB, 366 U S 731 (1961). The evidence in.this case establishes not only that the initial bargaining relationship was created before 1959 (and therefore under Section 9(a)), but also that it has been unbroken, with successive agreements over the years. In view of the unbroken bargaining history since before 1959, evidence (if any existed) to show that the initial recognition was based on minority status, would not be permitted because of Section 10(b) of the Act. Morse Shoes, 231 NLRB 13 (1977), enfd. 591 F.2d 542 (9th Cir. 1979). Moreover, the Respondent has not at- tempted to produce any evidence purporting to show that recognition in this case was initially given at a time when the Union did not represent a majority of the Company's laborers In view of the above, it is evident to me that at the expiration of the 1984-1987 contract, the Union was enti- tled to a presumption of continuing majority status which the Respondent has not rebutted 5 As stated by 5 In fact, the records introduced into evidence tend to establish that as of the end of May 1987 when the RM petition was filed, a majority of the laborers in the Company's construction division were union members the Board in Stratford Visiting Nurses Assn., 264 NLRB 1026 (1982): It is well established that upon expiration of a collective-bargaining agreement a union enjoys a re- buttable presumption that its majority representative status continues. This presumption is rebutted if an employer affirmatively establishes either (1) that its refusal to bargain was predicated on a good-faith doubt, based on objective considerations, of the union's majority status, or (2) that at the time of the refusal to bargain a majority of the unit employees in fact did not wish to have the union as their col- lective-bargaining representative. The burden of re- butting the presumption rests on the employer. The Respondent points to three factors to estab- lish that the Union in fact lacked majority status: only two of the six unit employees were union members; only two of the six employees were on dues checkoff, and two, or three, of the six employ- ees testified at the hearing that they did not want the Union to represent them as of the refusal-to-bar- gain date. None of these factors establishes lack of majority support. It is well established that neither the number of employees who are union members nor the number on dues checkoff demonstrates lack of majority support. The complaint also alleges that from a period com- mencing 6 months prior to the filing of the charge (6 De- cember 1986), the Employer had not made contributions to the benefit funds, as required by contract, on behalf of those of its laborers who were not members of the Union. This is essentially conceded by the Employer. It contends, however, that under John Deklewa, supra, it was enticed to terminate the bargaining relationship on the expiration of the contract (31 March), and that having given notice in January 1987 to terminate the agreement, it therefore had no further contractual obliga- tions after 31 March 1987.6 Under this theory, the Em- ployer would contend that it had no obligation to make fund contributions on behalf of any of its employees whether or not they were members of the Union While Respondent's theory would be viable if we were considering an 8(f) bargaining relationship, it cannot be sustained if the relationship was pursuant to Section 9(a) of the Act. Thus, where a 9(a) relationship was in effect, the Employer could not withdraw recognition except in the circumstances described above As I have previously concluded that the Respondent's withdrawal of recogni- tion was unlawful, it was not free to unilaterally change the terms and conditions of the expired contract. In Buck Brown Contracting Co., 272 NLRB 951, 953 (1984), the Board held that a company violated Section 8(a)(5) by Thus, of 14 employees, 8 were union members and 6 were new hires who had not joined the Union (No evidence was presented to show that the six new hires had refused to join the Union ) 1 6 It is not entirely clear to what extent there were employees who were not union members who were employed between 8 December 1986 and 31 March 1987 As noted above, J Biasetti and T Underhill may have been hired a few days before 31 March E L WAGNER CO. ceasing to make contributions to certain benefit funds on the expiration of the contract. It stated. It is well settled that an employer violates Section 8(a)(5) and (1) when it unilaterally changes or discontin- ues existing terms and conditions of employment-in- cluding contributions to contractual fringe benefit funds-upon the expiration of a collective-bargaining agreement unless: (1) the union has waived bargaining on the issue; or (2) the parties have bargained to impasse and the unilateral change is reasonably encompassed by the employer's preimpasse proposals. It also is well set- tled that an employer acts in derogation of its bargaining obligation under Section 8(d) if it unilaterally changes or otherwise repudiates terms or conditions of employment contained in a collective-bargaining agreement during the life of that agreement.7 I therefore conclude that the employer violated Sec- tions 8(a)(1) and (5) and 8(d) of the Act when it unilater- ally changed terms and conditions of employment by failing to make contributions to benefit funds on behalf of certain employees. (Whether these "changes" were made before or after the last contract expired is not ma- terial However, Section 10(b) of the Act, would limit the amount of any money owing to a period commenc- ing 6 months prior to the filing of the charge.) Addition- ally, as the evidence shows that fund contributions were not made only as to those employees who were not members of the Union, it is concluded that this constitut- ed a violation of Section 8(a)(3) of the Act as well. F & C Transfer Co., 277 NLRB 591, 596 (1985); Prestige Bed- ding Co., 212 NLRB 690 (1974) Cf. B. G. Costich & Sons v. NLRB, 613 F.2d 450 (2d Cir. 1980). The Union claims that the Respondent not only violat- ed the Act as described above, but also asserts that the Respondent is bound to honor the new contracts execut- ed with the Employer Associations covering the period 1987 to 1991. The Union contends that any moneys owed pursuant to a remedial order should therefore be measured by the terms of the new contracts and not by the terms of the expired contracts. I do not agree. The Union's contention is based on the assertion that the Employer did not give notice as required under the Acceptance of Agreements and therefore the Employer automatically agreed to be bound by the latest Associa- tionwide contracts Even assuming the continued viabili- ty of the 1978 Acceptance of Agreements signed by the Employer, the fact remains that on 30 January it did give notice to terminate or renegotiate a successor agreement. Thus, while I have concluded that the Employer contin- ues to be bound to recognize and bargain with the Union, I cannot conclude that it has agreed to be bound to the 1987-1991 Association Agreements. Therefore, absent agreement, there is no legal basis to hold that the Employer is obligated to comply with its terms. H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970). I also conclude that the Respondent violated Section 8(a)(5) of the Act by failing to furnish the names and ad- dresses of employees. The Board has held that such in- formation is presumptively relevant when requested by See also Hen House Market No 3 v NLRB, 428 F 2d 133 (8th Cir 1970) 499 the recognized collective-bargaining representative Mon- santo Co., 268 NLRB 1381 (1984) While it is true that the Union's request may have been overbroad in that it asked for the names and ad- dresses of all the employees on the Company's payroll, I do not think that this is sufficient to defeat the 8(a)(5) claim The Union has represented the employees in the Company's construction division for many years and it has never claimed to represent any of the Company's other employees In these circumstances, it therefore should be evident to any reasonable person, that the Union's request was meant to encompass only the bar- gaining unit employees. If the Company had any ques- tion as to the cope of the Union's information request, it did not seek clarification from the Union Instead it chose to ignore the request See La Guardia Hospital, 260 NLRB 1455, 1463 (1982). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. All laborers employed by the Respondent in its con- struction division excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appro- priate for collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material, the Union has been the exclu- sive collective-bargaining representative within the meaning of Section 9(a) of the Act on behalf of the aforesaid unit of employees. 5. By withdrawing recognition from the Union and thereafter refusing to recognize and bargain with the Union regarding any changes in the terms and conditions of employment, the Respondent engaged in and is engag- ing in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act 6 By failing, since 8 December 1986, to make contri- butions to the Union's fringe benefit funds on behalf of bargaining unit employees who were not members of the Union in accordance with the collective-bargaining agreement, the Respondent has failed to bargain in good faith in violation of Section 8(a)(1) and (5) and Section 8(d) of the Act and has discouraged membership in the Union in violation of Section 8(a)(1) and (3) of the Act 7. By refusing to supply the names and addresses of its employees in the unit described above in paragraph 3, the Respondent has failed to bargain in good faith in vio- lation of Section 8(a)(1) and (5) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall order the Respondent to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act I have found that the Respondent, since 8 December 1986, has failed to make contributions on behalf of cer- tain of its unit employees to the Union's fringe benefit 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD funds. To remedy this I shall recommend , in accordance with Buck Brown Contracting Co., 272 NLRB 951, 954 (1984), that the Respondent make its unit employees whole by paying all fringe benefit contributions , as pro- vided in the applicable collective -bargaining agreements, which have not been paid since 8 December 1986 and which would have been paid absent the Respondent's un- lawful discontinuance of such contributions , and by reim- bursing unit employees for any expenses ensuing from the Respondent's failure to make such contributions.8 9 I leave to the compliance stage the question of whether the Respond- ent must pay any additional amounts into the fringe benefit funds in order to satisfy the "makewhole" remedy These additional amounts may be de- termined, depending on the circumstances of each case, by reference to the provisions in the documents governing the funds as issued and, where there are no governing provisions , to evidence of any 'loss directly attrib- I shall also order the Respondent to turn over to the Union the names and addresses of any and all bargaining unit employees , employed by the Company since 1 Janu- ary 1987. As there is no evidence that Respondent has engaged in conduct which would indicate an attempt to evade compliance with a Board order , I do not believe that the General Counsel's request for a broad visitatorial clause would be justified . See Cherokee Marine Terminals, 287 NLRB 1080 ( 1988). [Recommended Order omitted from publication.] utable to the unlawful withholding action , which might include the loss of return on investment of the portion of funds withheld , additional ad- ministrative costs, etc , but not collateral losses See Merryweather Optical Co, 240 NLRB 1213 (1979)