Worldwide Detective Bureau

148 DECISIONS OF THE NATIONAL. LABOR RELATIONS BOARD Worldwide Detective Bureau and Allied Internation- al Union. Case 2-CA-22638 August 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On January 6, 1989, Administrative Law Judge Jesse Kleiman issued the attached decision. The Respondent filed exceptions without a supporting brief and a motion to amend its answer to the com- plaint. The General Counsel filed a motion to strike the Respondent's exceptions and to deny the Respondent's motion to amend.I 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 has decided to affirm the judge's rulings, findings, 2 and conclu- sions for the reasons set forth below , and to adopt the recommended Order. Section 102.46(b) of the Board's Rules and Regu- lations sets forth the minimum requirements with which exceptions to an administrative law judge's decision must comply in order to merit consider- ation by the Board . A party excepting to the find- ings of an administrative law judge must set forth with specificity those portions of the judge's deci- sion to which it excepts, and support the conten- tions with legal or record citations or appropriate argument. Bonanza Sirloin Pit, 275 NLRB 310 (1985). 'The Respondent's motion to amend its answer to deny that it is a cor- poration and to state that it is an individual proprietorship is denied as untimely . See Sec 102.23 of the Board's Rules and Regulations, Operating Engineers Local 948 (Oklahoma Osteopathic), 238 NLRB 1113 fn. 1 (1978), enfd . sub nom. Oklahoma Osteopathic Hospital v NLRB, 618 F 2d 633 (10th Cir 1980). 2 The judge erroneously reported the case name and citation to Michi- gan Bell Telephone Co, 182 NLRB 632 (1970) We correct the error The judge recommended that the Board take disciplinary action against counsel for the Respondent pursuant to Sec 102 21 of the Board's Rules, which states that an attorney may be subject to disciplinary action when he has willfully violated the rule that statements contained in an answer to a complaint be made in good faith and not be interposed as an attempt to delay case proceedings In so recommending , the judge, citing M. ! Santulli Mail Services, 281 NLRB 1288 fn 1 (1986), found that in the answer to the complaint, counsel for the Respondent denied the Union's labor organization status without an adequate basis to support the denial Having carefully considered the judge 's recommendation in light of the record, we agree that counsel for the Respondent acted contrary to the strictures of Sec . 102 21 of the Board's Rules Thus, as in Santulli, the Respondent's counsel at the hearing requested copies of collective-bar- gaining agreements, which could have been subpoenaed in advance of the hearing, despite the fact that the General Counsel presented evidence that clearly established the Union 's labor organization status-including a history of collective bargaining with the Respondent Under the circum- stances here, and consistent with Santulli, we express strong disapproval of such conduct and caution counsel for the Respondent against similar conduct in future appearances before the Board. In its exceptions the Respondent has listed vari- ous rulings and findings of the judge that it con- tends are in error. The Board in EDP Medical Computer Systems, 284 NLRB 1286 (1987), faced with similarly deficient exceptions , cited the fol- lowing language from Bonanza Sirloin Pit, above: The Respondent's exceptions are inadequate as they constitute virtually a wholesale listing of each and every finding, conclusion, and rec- ommendation of the judge. The Respondent failed to submit a supporting brief or any other document alleging with any degree of particu- larity what error, mistake, or oversight the judge committed or on what grounds the find- ings should be overturned. Consequently, the Respondent would have the Board engage in its own attempts to determine what if any problems, errors, or irregularities are possibly presented by the judge's decision. We have consistently refused to do this. Fiesta Printing Co., 268 NLRB 660 (1984); Ditch Witch, Inc., 248 NLRB 452 (1980); Aitoo Painting Corp., 238 NLRB 366 (1978). In accord with the above precedent, we find that the Respondent's exceptions fail to put in issue any of the findings of the judge. We therefore grant the General Counsel's motion to strike the Respond- ent's exceptions, and we adopt the judge's deci- sion. 3 See Section 102.48(a) of the Board's Rules and Regulations.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Worldwide Detective Bureau, New York, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. ' To the extent that the Respondent 's Exceptions 17, 18, and 24-re- garding, respectively, disciplinary action against counsel (see fn 2, above), revocation of the Respondent's subpoena , and rejected exhibits- arguably comply with Sec 102.46(b) of the Board's Rules, we find that these exceptions lack merit 4 Contrary to his colleagues, Member Devaney would deny the Gener- al Counsel's motion to strike the Respondent's exceptions In this regard, he notes that although the Respondent's exceptions do not fully comply with the Board's Rules, the exceptions sufficiently identify the portions of the judge's decision the Respondent claims are erroneous See Tampa Sheet Metal Co, 288 NLRB 322 fn. I and cases cited therein ( 1988). Member Devaney, however, concurs in the result reached by his col- leagues because he agrees with the judge's findings of the violations on the merits. Dean Hubbard, Esq., for the General Counsel. Peter J. Curley, Esq., of New York, New York, for the Respondent. Gerald V. Dandeneau, Esq., of Melville, New York, for the Charging Party. 296 NLRB No. 20 WORLDWIDE DETECTIVE BUREAU 149 DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. On the basis of a charge filed on January 27, 1988 , by Allied International Union (the Union), the General Counsel of the National Labor Relations Board, by the Acting Re- gional Director for Region 2, New York, New York, duly issued a complaint and notice of hearing on March 11, 1988, against Worldwide Detective Bureau (the Re- spondent), alleging that the Respondent engaged in cer- tain unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the Act). The Respondent, by counsel, denied the material allegations in the complaint by its answer filed with the Board on March 29, 1988. A hearing was held before me in New York, New York, on June 16, 1988 . All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Thereafter, the General Coun- sel and the Respondent filed briefs ." During the hearing, the Respondent made various motions,2 among which was a motion to dismiss the complaint for failure of proof. The Respondent renewed this motion in its letter- brief. For the reasons appearing hereinafter , I deny the Respondent's motion to dismiss the complaint. On the entire record and the briefs of the parties, and on my observation of the witnesses , I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT viding security guards to the public. In the course and conduct of its business operations during the proceding 12 months, these operations being representative of its operations at all times material herein , the Respondent performed services valued in excess of $50,000 for other enterprises within the State of New York, including the Barclay Bank and Tower Records, each of which meets the Board's direct standards for the assertion of jurisdic- tion. The complaint alleges, the Respondent admits, and I find that Worldwide Detective Bureau is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint also alleges, the evidence herein establishes, and I find that John Chiotis, the Re- spondent's president and director, is now, and has been, at all times material herein a supervisor of the Respond- ent within the meaning of Section 2(11) of the Act, and an agent of the Respondent acting on its behalf within the meaning of Section 2(13) of the Act.3 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, and while the Respondent denies this allegation, the record evidence establishes and I find that the Allied International Union is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act.4 III. THE APPROPRIATE BARGAINING UNIT The complaint alleges that the following employees of the Respondent constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act: At all the times material herein , Worldwide Detective Bureau, a New York corporation with its principal office and place of business in New York, New York, has been and is engaged in the nonretail service business of pro- ' By letter dated August 16, 1988, the Respondent set forth its position concerning the various issues presented in this case and requested that this letter be accepted as "a substitute for said brief" I grant the Re- spondent's request and will consider the letter as its brief herein 8 At the commencement of the hearing , the Respondent moved to stay these proceedings on the grounds , as stated by counsel for the Respond- ent, that: Judge, before we get to that My client has filed a petition in bank- ruptcy, a Chapter 13 proceeding. And this was filed on or around March 3, 1988 And my understanding is that it contains a stay of all proceedings against him Unfortunately I don't have a copy of the order It can be obtained, but it can't be obtained in the next 15 minutes But I just want to indicate on the record it's my position that a bankrupt -no proceed- ings are available against him unless the stay is lifted by the bank- ruptcy court itself The General Counsel and the Union opposed such a stay and I ordered that the hearing proceed pending production by the Respondent of the "Stay Order." A copy of the order referred to above was never pro- duced, either at the hearing or thereafter . Moreover, this issue was not raised again by the Respondent in its brief. However, a discussion thereof will follow hereinafter with regard to the effect of such petition in bank- ruptcy on the propriety of the hearing and the issues involved herein Furthermore, during the hearing the Respondent moved to dismiss the complaint on the grounds that Counsel for the General Counsel and counsel for the Union had engaged in "gross misconduct" at the hearing I denied this motion . It appears that the Respondent has renewed the motion in its letter-brief A discussion and resolution of this motion will also subsequently follow herein All guards employed by the Respondent, excluding all executives, supervisors, and professionals, confi- dential, clerical, and nonguard employees employed by the Respondent. The Respondent denies this allegation . In the 1984-1987 collective-bargaining agreement between the Respondent and the Union, the Respondent accepted this same unit as appropriate for the purposes of collective bargaining. Furthermore, in Worldwide Detective Bureau, supra at a Chtotts is the owner of the Respondent, apparently a family owned and/or closely held corporation Chiotis hires and fires employees, for- mulates and directs the Respondent's labor relations policy, and has signed on the Respondent 's behalf, collective-bargaining agreements which have bound the Respondent to comply with the terms and condi- tions of employment set forth therein * The Union has collective-bargaining agreements with other employ- ers, i.e, Georgetown University , Apex Security, IBI Security , etc., under which the Union deals with these employers as the exclusive bargaining representative of their employees in an appropriate guards unit , regarding wages, rates of pay, hours of employment and other terms and conditions of employment , and represents such employees in grievance matters with their employers. Also, in Worldwide Detective Bureau , 245 NLRB 888 (1979), the Board affirmed the finding of the administrative law judge therein that this very same Union was a labor organization within the meaning of Sec. 2(5) of the Act. Additionally, the Respondent failed to produce any evidence at the hearing contradicting such a finding or sup- porting its denial of the Union 's status as a labor organization within the meaning of the Act. See Photo Drive Up, 267 NLRB 329 (1983); Michigan Bill Co., 132 NLRB 632 (1961) Also see, M. J Santulli Mail Service, 281 NLRB 1288 ( 1986). 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 891, the Board affirmed the finding of the administrative law judge therein that a unit virtually identical to the one in the instant proceeding was appropriate for the purposes of collective bargaining under Section 9(b) of the Act. The Respondent offered no evidence to refute the appropriateness of this unit for the purposes of col- lective bargaining. Therefore, I find and conclude that: All guards employed by Worldwide Detective Bureau, excluding all executives, supervisors, and professional, confidential, clerical, and nonguard employees employed by this Employer, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges, in substance, that since in or about November 1987, the Respondent has failed to make payments to the Union's Health and Welfare Fund for its unit employees and to check off union dues from such employees as required by the 1984-1987 collective- bargaining agreement, without prior notice to the Union and without affording the Union an opportunity to nego- tiate and bargain as the exclusive representative of the Respondent's employees with respect thereto; and that on or about November 18, 1987, the Respondent with- drew its recognition of the Union and has failed and re- fused to recognize and bargain with the Union as the ex- clusive collective-bargaining representative of its unit employees, all in violation of Sections 8(a)(1) and (5) and 8(d) of the Act. The Respondent denies these allegations. Moreover, article I of the 1984-1987 collective-bar- gaining agreement between the Respondent and the Union provides: RECOGNITION A. The Employer recognizes and acknowledges the Union as the sole and exclusive agency for all of its employees within the United States and its pos- sessions with respect to wages, hours, and condi- tions of employment, excluding executive, super- visors, professional, confidential, clerical and non- guard employees and agrees to deal collectively only with this Union for and on behalf of such employees. Also, in Worldwide Detective Bureau, supra at 891, the ad- ministrative law judge therein concluded that based on "a series of contracts" under which the Respondent had recognized the Union as the collective-bargaining repre- sentative "of substantially the same unit of guard em- ployees," the Union was "the exclusive representative of the employees in the . . . appropriate bargaining unit, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act." The Board affirmed this finding.5 In view thereof, and the Respondent's failure to offer any proof to the contrary or to negate the Union's con- tinuing 9(a) status under the 1984-1987 bargaining agree- ment between the parties, I find and conclude that: At all times material herein, the Union has been and now is the exclusive representative of the Respond- ent's employees in the aforedescribed appropriate bargaining unit, for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5 1 am mindful that the respondent in Worldwide Detective Bureau, supra, was established to be an "individual proprietor" while the Re- spondent herein is a New York State corporation As regards this issue and under the circumstances present in the instant case , this would not affect my ruling thereon A. The Evidence The record evidence shows a prior collective bargain- ing relationship between the Respondent and the Union dating back more than 10 years. The most recent collec- tive-bargaining agreement had effective dates from No- vember 19, 1984, to November 18, 1987. According to the testimony of both Union President Edward Benven- uto and the Respondent's owner, John Chiotis, the par- ties met on December 30, 1986, or thereabouts to discuss changes in wage rates pursuant to the bargaining con- tract's wage reopener provisions.6 Present at the meeting were Chiotis and his attorney, Peter J. Curley, Esq., for the Respondent, and for the Union, Benvenuto and the Union's attorney, Gerald V. Dandeneau, Esq. While the avowed purpose of this meeting was to discuss a wage reopener, the parties also discussed the Respondent's contributions to the Health and Welfare Fund. However, the evidence herein indicates that this meeting did not constitute negotiations for the renewal, modification, or termination of the agreement, and neither party consid- ered it as such. No other provisions of the bargaining contract were discussed at this meeting. Chiotis testified that at the meeting he asked the Union to decrease wages7 and the health and welfare fund pay- ments, especially the latter, but the Union adamantly re- fused to do so, in fact, requesting a wage increase. How- ever, according to both Chiotis and Benvenuto, at the conclusion of this meeting the Union and the Respondent agreed in writing, that the Union could audit the books and records of the Respondent for the years 1985 and 5 Schedule A of the 1984-1987 bargaining agreement contains the fol- lowing phrase under the word "Wages" Effective November 19, 1986-Wage reopener Benvenuto testified without contradiction that the language of this agree- ment did not preclude wage reopener discussions after November 19, 1986, and it would appear that both parties accepted this interpretation thereof, since they both appeared at the December 30, 1986 meeting. While the Respondent 's counsel sought to challenge this during his ques- tioning of Benvenuto, his attempt was unsuccessful and Chiotis did not refute such an interpretation in his testimony In fact , Chiotis testified that , "Well, first it was supposed to be a wage reopener, but in the inter- im we also spoke about the Welfare Fund " I Benvenuto testified that while this meeting was called for the purpose of discussing wage levels, there was also some discussion had regarding health and welfare fund payments WORLDWIDE DETECTIVE BUREAU 1986, so that the Union could assess the credibility of the Respondent's assertion at this meeting that it could no longer afford to pay the current level of wages and health and welfare fund payments as required by the bar- gaining contract, let alone an increase in such amounts. There is some dispute between the parties herein as to whether or not the Union did conduct such an audit of the books and records of the Respondent . Chiotis testi- fied that sometime in March or April 1987 a union audi- tor, Matt Schimnenti, appeared at the Respondent's place of business and with the Respondent's full cooperation, spent 2 full days auditing the Respondent's books and records in the presence of the Respondent 's accountant, Al Cohen. Chiotis added that at the conclusion of his audit, Schimnenti told both him and Cohen that " [T]here was nothing there . In other words, everything was in order."8 However, Benvenuto testified that despite the Union's request for such an audit, the Respondent never showed its "books and records" to any union representa- tive for the purpose sought above. Concerning this, article VIII and schedule B of the 1984-1987 bargaining agreement requires the Respondent to pay the Allied Security Health and Welfare Fund (the Fund) the amount of $40 per month per full-time em- ployee and $3 per month for part-time employees. At the hearing, the parties stipulated that the Respondent had not made any health and welfare payments to the Fund, as required by the bargaining contract, since its last pay- ments for the month of September 1987.9 With respect to the Respondent 's Health and Welfare Fund obligations prior to September 1987, Benvenuto testified that in early 1987, the Fund had retained an in- dependent accountant , Matt Schimnenti , CPA, to con- duct an audit of the Respondent's books and records, pursuant to lawsuits that had been commenced against the Respondent by the Trustees of the Fund . Schimnenti conducted such an audit, as hereinbefore testified to by Chiotis, and issued a written report thereof to the Fund.' ° Additionally, Richard Janes, the Fund's data processing manager, testified that as part of his duties with the Fund, he conducts semiannual audits of the monthly dues and health and welfare and pension moneys that are due and paid by signatory employers, to determine if any amounts are owed to the Fund or the Union . The audit is based on information supplied to the Fund and the Union by the employers and if amounts are found to be owing, the Fund or the Union notifies the employer as to such arrears. Janes stated that the audit performed by him for the period January through June 1987, showed that the Respondent was $90 in arrears for dues payments, $44 for health and welfare payments, and 8 Neither Cohen or Schimnenti was called as a witness herein. 9 Moreover, the following testimony was elicited from Chiotis at the hearing Q Have you, sir, except for the stipulated period religiously paid every penny owed to this Union either by way of Welfare Fund payments or by dues checkoff? A. Absolutely- 1O A copy of this audit was not introduced into evidence at the hear- ing Richard Janes, a Fund employee, testified that at times the Union itself also engaged Schimnenti "to audit books of employers " 1 51 $35 for initiation fees for this period." By letter dated November 17, 1987, sent by certified mail, the Union at- tempted to notify the Respondent regarding the moneys alleged to be owed, but this letter was returned to the Union as "Unclaimed."' 2 However, Chiotis testified that the Respondent had made all the required dues and health and welfare and pension fund payments to the Union and the Fund through September 1987. As regards the Fund, Benvenuto testified that the Fund is a separate entity from the Union and is adminis- tered according to the terms and conditions of a Trust Document and Trust Plan; that the Fund is controlled by a board of trustees, with three trustees selected by the Union,' a and three trustees by the signatory employers; that the Union rents its office space from the Fund as tenant, at the same address; that an employee of the Fund, not of the Union, the fund manager, oversees the daily operations of the Fund; and that both the Fund and the Union each hold a separate monthly meeting. Article XXVIII of the 1984-1987 bargaining agree- ment provides that on the expiration date thereof, No- vember 18, 1987, the contract, [S]hall be automatically renewed from year to year thereafter unless modified or terminated by either party giving the other party not less than sixty (60) days written notice, by REGISTERED MAIL, prior to the next termina- tion date of its desire to modify or terminate this agreement . Should said sixty (60) days notice be given, joint conference between the parties shall commence at least thirty (30) days before the termi- nation date for negotiation purposes. On August 6, 1987, over 60 days before the expiration date of the bargaining agreement , the Union sent a letter by certified mail to the Respondent, requesting that the Respondent's owner, Chiotis, contact Union President Benvenuto, to arrange a date for the commencement of negotiations for a new collective-bargaining agreement. Benvenuto testified that this letter was sent to the Re- spondent in the normal course of the Union 's business operations. However, the envelope with its enclosed letter was sent back to the Union marked "Returned to Sender" and as "Unclaimed ."' 4 On its part, the Re- spondent denied receipt of such letter. By letter dated September 11, 1987, the Respondent notified the Union that pursuant to the provisions of the bargaining contract, "Worldwide Detective Bureau will terminate said agreement effective as of its expiration date." In response to this letter, the Union advised the 11 See G C Exh 3 Janes also testified that during this same 6-month period, the Respondent had remitted several thousands of dollars to the Fund and the Union, in payment of amounts due 12 See G C Exh 12 1' Benvenuto is one of the designated union trustees and is chairman of the Fund's board of trustees. i4 See G C Exhs. 6 and 10 Moreover, annexed to G.C Exh 6 is a green "Return Receipt" card signed by Sean Tibbets. It was disclosed at the hearing that Tibbets is an employee of the Fund Benvenuto testified that perhaps Tibbets had signed the card in order to retrieve the un- claimed letter from the post office 152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent by letter dated September 14, 1987 , sent by certified mail, that, "Allied International Union is willing to sit down with you at your earliest convenience and modify the Agreement." The Union's letter also made reference to its prior letter of August 6, 1987, stating, "Which you refused to accept . This is our second re- quest." While this letter was not returned to the Union as being "Undelivered," the Respondent denied receipt of this letter also.' a On November 2, 1987, the Union made a third request, by certified mail, that the Respond- ent contact the Union to commence negotiations for a new bargaining agreement. This letter was also returned to the Union as "Unclaimed." 16 The Respondent denied receipt of this letter as well. Chiotis testified that in early 1987, the Union em- barked on a compaign to disrupt the Respondent 's busi- ness operations . Chiotis stated that he was told by his landlord that two agents of the Union, "showed up every payday" at 260 Fifth Avenue, New York City, New York, at the building in which the Respondent's of- fices were located, and distributed employment applica- tions to the Respondent's employees in the lobby there- of." Chiotis related that on one of these occasions he had called the police who on arrival purportedly in- structed the Union's representatives to leave the build- ing.' 8 Chiotis added that the security guard industry is very unstable in that security employees do not remain with one employer for any length of time, there being an excessive amount of employee turnover, thus implying that the Union was seeking to encourage the Respond- ent's guard employees to leave the Respondent's employ and seek employment elsewhere, thereby creating a po- tential manpower shortage for the Respondent. Chiotis also testified that on another occasion he had received a telephone call from an assistant manager at a Goldome Bank Branch ' 9 who told him that two union representatives had appeared at the Bank and engaged the security guard working there in conversation, which "doesn't look right." Chiotis recounted that the assistant bank manager had requested him to call the Union and "tell them to lay off." Chiotis continued that he did not contact the Union and after a similar incident occurred at the bank, the Respondent lost its contract with Gol- dome for security guards affecting "quite a number of branches." Additionally Chiotis testified that representa- ' 5 See G.C. Exh 8 . The green "Return Receipt" card annexed to this exhibit bears the initials "WWDB" in the "Signature-Addressee's" box. As pointed out by counsel for the General Counsel in his brief, these same initials, in an appartently similar handwriting, also appears on a green "Return Receipt" card in the "Signature-Addressee's" box accom- panying the Notice Rescheduling Hearing sent by the Board to the Re- spondent in this matter See G C. Exh. 13 16 See G C. Exhs 9 and 11 Again , annexed to G.C. Exh. 9 is a green "Return Receipt" card signed by Sean Tibbets . Also see fn 14 herein 19 Chiotis, however, could not recall exactly when these incidents oc- curred. 18 While Chiotis acknowledged that he had no personal knowledge as to what had transpired during these occurrences, he did testify that he knew that the persons passing out the employment applications were from the Union because one of the Respondent's employees, who had been approached by these men , and a police officer at the scene that day, informed Chiotis that the men had identified themselves at the time as being from the Union. 19 Chiotis could not remember the name of the Bank official who had called him or the date of the telephone call tives of the Union also visited the Respondent's security guard employees at Tower Records' stores on numerous occasions and after a store manager complained to Chio- tis that, "their distracting your people from doing their jobs," the Respondent subsequently also lost the Tower Records contract to supply security guards. Chiotis added that the Respondent 's business suffered "adverse- ly" from the loss of these "clients," resulting in a reduc- tion of the Respondent's work force by as many as 20 employees. On March 3, 1988, the Respondent filed a petition in bankruptcy with the United States Bankruptcy Court for the Southern District of New York pursuant to Chapter 13 of the United States Bankruptcy Code. B. Analysis and Conclusions 1. The withdrawal of recognition and refusal to bargain The complaint herein alleges that on or about Novem- ber 18, 1987, the Respondent withdraw recognition from the Union and since that date "has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit," in viola- tion of Section 8(a)(1) and (5) of the Act. The Respond- ent denies this allegation. As the Board stated in Cartwright Hardware Co., 229 NLRB 781 (1977), enfd. as modified 600 F.2d 268 (10th Cir. 1979): It is well settled that the existence of a prior con- tract, lawful on its face, raises a dual presumption of majority-a presumption that the union was the ma- jority representative at the time the contract was executed, and a presumption that its majority con- tinued at least through the life of the contract.2 Fol- lowing the expiration of the contract, as here, the presumption continues and, though rebuttable, it is sufficient to establish , prima facie, a continuing obli- gation on the part of the employer to bargain with the Union. 3 Following expiration of a collective bargaining agreement , therefore, an employer vio- lates Section 8(a)(5) and (1) by repudiating its col- lective-bargaining relationship with the union unless it can show reasonably based doubt as to the con- tinuing majority support of its employees' represent- ative.4 z Bartenders, Hotel, Mote! and Restaurant Employers Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 , 652 (1974), citing Shamrock Dairy, Inc, 119 NLRB 998 (1957), and 124 NLRB 494 (1959), enfd 280 F.2d 665 (C A D C.), cert. denied 364 U S 892 ( 1960). a Bartenders Association of Pocatello, supra; Barrington Plaza and Tragniew. Inc, 185 NLRB 962, 963 (1970), enforcement denied on other grounds sub nom NLRB Y. Tragniew, Inc and Consolidated Hotels of California, 470 F.2d 669 (C A. 9, 1972); Terre!! Machine Company, 173 NLRB 1480, 1480-81 ( 1969), enfd. 427 F 2d 1088, 1090 (C.A 4, 1970), cert. denied 398 U S. 929 (1970). WORLDWIDE DETECTIVE BUREAU 4 United States Gypsum Company , 221 NLRB 530 ( 1975), Salina Concrete Products, Inc, 218 NLRB 496 (1975 ), Cantor Bros.. Inc., 203 NLRB 774 (1973) 20 Moreover, such "good faith doubt" must be based on ob- jective considerations and not advanced for the purpose of gaining time in which to undermine the union.21 There is no evidence in the record which clearly and convincingly, or in truth at all, establishes that in fact the Union had lost its majority status or that the Respond- ent's refusal to bargain and its withdrawal of recognition of the Union was predicated upon a good-faith doubt of the Union's majority status based on objective consider- ations, nor does the Respondent contend this . 22 Instead, the Respondent raises various defenses in justification of its actions against the Union which will be discussed hereinafter. 2. Unilateral changes in terms and conditions of employment The complaint herein alleges, in substance , that the Respondent unilaterally ceased making union dues23 to the Union and health and welfare payments24 to the Fund as required by the 1984-1987 collective-bargaining agreement in violation of Sections 8(a)(1) and (5) and 8(d) of the Act. The Respondent denies this allegation. As stated by the Board in SAC Construction Co., 235 NLRB 1211, 1218 (1978):25 20 Park view Furniture Mfg Co, 284 NLRB 947 fn 20 (1987), M. J Santulli Mail Services, 281 NLRB 1288 (1986), Crest Floors & Plastics, 274 NLRB 1230 ( 1985) The Board has also long held that an employer is also free to withdraw recognition and repudiate its collective-bargaining relationship with a union , rebutting the presumption of majority status by demonstrating that the union in fact no longer represents a majority of the employer's employees in an appropriate unit Parkview Furniture Mfg Co, supra, American Mirror Co, 277 NLRB 1626 (1986); Terrell Machine C0, supra. Si Wells Fargo Armored Service Corp., 290 NLRB 872 (1988), Reis Vending Services, 272 NLRB 1336 ( 1984), Bennington Iron Works, 267 NLRB 1285 (1983); Terrell Machine Co., supra 22 Wells Fargo Armored Service Corp., 290 NLRB 881 (1988), Alexander Linn Hospital, 288 NLRB 103 ( 1988). a3 The complaint alleges that , "From on or about November 1, 1987, until on or about November 18, 1987 , Respondent, by Chiotis, failed to check off union dues from employees in accordance with the collective- bargaining agreement 24 The complaint alleges that , "Since on or about November 1, 1987, the Respondent has failed to make payments to the Health and Welfare Fund in the manner required by the collective bargaining agreement " At the hearing the parties stipulated that the Respondent has made no pay- ments to the Fund, "since the payment for the month of September, 1987 " In his brief counsel for the General Counsel moved to "amend the pleadings to conform to the proof adduced herein ." In light of the parties stipulation regarding Fund payments and on the record as a whole, I grant the General Counsel 's motion thereby correcting the date alleged in the complaint regarding such payments . There can be no valid contention raised that the Respondent will suffer any prejudice therefrom in view of its admission that in effect October I , 1987, is the date upon which it ceased health and welfare payments to the Fund rather than November 1, 1987, as alleged in the complaint Moreover, the issue regarding which this date is relevant was fully litigated at the hearing See La Famosa Foods, Inc, 282 NLRB 316 (1986), American Stores Packing Co, 277 NLRB 1656 ( 1986), Bell Halter, Inc, 276 NLRB 1208 (1985). Additional- ly, in view of Chiotis' testimony that the Respondent had made union dues payments to the Union up to the "stipulation period," the above would be true as to the dates specified in the complaint concerning this issue as well. 25 Enf. denied 603 F 2d 1155 (5th Cir 1979) on the issue of the union's majority status 153 The law is well established that unilateral changes of "wages, hours and terms and conditions of employment" by an employer obligated to bar- gain with the representative of its employees in an appropriate unit violates Section 8 (a)(5) of the Act. Master Slack and/or Master Trousers, Corp. et al., 230 NLRB 1054 (1977). Benefits, such as payments into health, welfare, and pension funds on behalf of employees, constitute an aspect of their wages and a term and condition of employment which, along with wage rates, survive the expiration of a collec- tive-bargaining agreement and cannot be altered without bargaining. Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (C.A. 8, 1970).26 Furthermore, it is well settled that upon the expiration of a collective-bargaining agreement the law imposes a con- tinuing duty on both parties to attempt in good faith to reach a new agreement and therefore an employer may not unilaterally alter the terms and conditions of employ- ment set forth therein, as relates to mandatory subjects of bargaining in the absence of an impasse in negotiations,27 the Union's loss of majority status'28 or a waiver by the Union thereof.29 Therefore, absent bargaining to impasse with the Union, or the Union's loss of its majority status, or waiver by the Union of the Respondent's obligation to bargain with it regarding such terms and conditions of employment, the Respondent may not unilaterally dis- continue contractually mandated payments to the Union and the Fund without notice to the Union, whether before or after the bargaining agreement has expired, and if the Respondent does so, it violates Sections 8(a)(1) and (5) and 8(d) of the Act.30 As mentioned previously, the Respondent raised various defenses to justify its with- drawal of recognition and failure to bargain with the Union. The Respondent also asserts these defenses in connection with its unilateral discontinuance of health and welfare payments to the Fund and its failure to check off union dues and remit these monies to the Union, and such defenses will now be considered in the context of the issues presented herein. 3. The Respondent's defenses a. The Union's demand for bargaining The Respondent asserts in its letter-brief- It is axiomatic that a finding of refusal to bargain cannot be made in the absence of proof that a 26 NLRB v Katz, 369 U S 736 ( 1962). 27 Tauraus Waste Disposal, 263 NLRB 309 (1982); S. Freedman Electric, supra 28 SAC Construction Co, supra; Associated General Contractors of Texas, 190 NLRB 383 fn. 5 (1971) 29 Cauthorne Trucking, 256 NLRB 271 ( 1981), American Distributing Co. v. NLRB, 715 F 2d 446 (9th Cir 1983) 30 Parkview Furniture Mfg Co , supra, M .J Santulli Mail Services, supra, KBMS. Inc., 278 NLRB 826 (1986); Excelsior Pet Products, 276 NLRB 759 (1985), Crest Floors & Plastics, supra, S/S Research & Develop- ment Corp , 272 NLRB No 151 (1984) (unpublished); Buck Brown Con- tracting Co, 272 NLRB 951 (1984) 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD demand for bargaining , in an appropriate unit, has been made . There is absolutely no evidence in this record to support a finding that a demand for bar- gaining in an appropriate unit was made of Re- spondent by the [Union]. I do not agree. The record herein shows that the Union sent three let- ters to the Respondent by certified mail dated August 6, 1987, September 4, 1987, and November 2, 1987, request- ing bargaining. The August 6 and November 2, 1987 let- ters were returned to the Union marked "Unclaimed." While the Respondent also denied receipt of the Septem- ber 4, 1987 letter, the evidence indicates otherwise. The return receipt for certified mail regarding the September 4, 1987 letter bears the initials "WWDB" in the space thereon reserved for the signature of the "Addressee." Significantly, these same initials "WWDB ," in apparently the same handwriting, also appear on return receipt for certified mail cards in the "Addressee" space, for service and receipt of the complaint and notice of hearing and a notice rescheduling hearing sent to the Respondent by Region 2 of the Board in the instant matter.3 t The Re- spondent did not allege any failure to receive a copy of either of these latter documents. Additionally, the Sep- tember 4, 1987 letter, unlike the others, was apparently not returned to the Union. Moreover, even assuming arguendo that the Respond- ent did not receive any of the Union 's three letters de- manding bargaining, the Respondent was clearly aware, even before its letter of September 11, 1987, that its bar- gaining agreement with the Union was soon to expire. Therefore, the Respondent's failure to accept the Union's correspondence during the time preceding the expiration of this agreement can only be viewed as an effort on its part to avoid its bargaining obligations. As the Board noted in Michigan Expediting Services, 282 NLRB 210 fn. 6 (1986), "The Respondent 's refusal or failure to claim certified mail should not serve to defeat the purposes of the Act."32 " See G C Exhs 1(d) and 13. While Chiotis also denied knowing whom the initials "WWDB" stood for, or acknowledged that such a person was employed by the Respondent, still, the Respondent did not deny receiving a copy of the complaint and notice of hearing or the notice rescheduling hearing. 32 Aslin Management Co, 291 NLRB No. 33 (1988) (unpublished), Delta Star Utility Contractors, 288 NLRB No 63, slip op. at 1, fn. 1 (1988) (unpublished), Unbelievable Fashions, 286 NLRB No 78 fn 3 ( 1987) (un- published), Sheet Metal Workers Local 49 (Driver-Miller Plumbing), 124 NLRB 888 (1959) Although the cited cases discuss the failure or refusal of respondents to accept service of the charge or complaint therein, the analogy with this case is apparent and it can be strongly argued that the purposes of the Act would also be defeated should a party be allowed to refuse or fail to accept certified mail without adequate explanation there- fore in order to avoid a bargaining obligation. Additionally, counsel for the General Counsel in his brief states, Finally, even assuming, again solely for the sake of argument, both that the Union's three bargaining demands were never received by Respondent and that Respondent's failure to accept such demands did not constitute an effort to avoid its bargaining obligation, the Union was excused from making a bargaining demand Indeed, Re- spondent's September II notice of termination and withdrawal of recognition and its virtually simultaneous unilateral cessation of Fund contributions demonstrated both Respondent 's utter lack of in- terest in collective bargaining negotiations and that any demand for Accordingly, I find and conclude that the Union did make and convey to the Respondent a valid demand for bargaining in a appropriate unit, and therefore I reject the Respondent's alleged defense regarding this. b. Bargaining to impasse During the hearing, the Respondent attempted to defend its failure and refusal to meet and negotiate with the Union for a new collective bargaining agreement in the fall of 1987 apparently on the grounds that the par- ties had met and bargained to impasse on a prior occa- sion.33 The evidence herein shows that on December 30, 1986, the parties met pursuant to the 1984-1987 bargain- ing agreement's wage reopener provision , almost 11 months prior to the expiration of the agreement. Both the principal representatives for the parties at this meet- ing, Chiotis for the Respondent and Benvenuto for the Union, testified that the purpose of the meeting was to discuss a wage reopener and that the amount of the Re- spondent's Fund contributions were also mentioned. Both agreed that this meeting did not constitute negotia- tions for the renewal, modification or termination of the bargaining agreement and that other than wages and such negotiations was clearly futile Crest Floors & Plastics Inc, supra, 274 NLRB at 1254, 1255-1256 1985 While I agree that the Respondent 's notice of termination and with- drawal of recognition dated September 11, 1987, and "its virtually simul- taneous" cessation of Fund contributions after September 1987 "demon- strated" the Respondent's complete lack of interest in collective-bargain- ing negotiations, I however do not agree that the Union was therefore excused from making a bargaining demand . As the Board noted in Crest Floors & Plastics, 274 NLRB at 1230 fn 2 We adopt the judge's finding of a violation of Sec 8 (a)(5) and (1) of the Act for the Respondent's changes in the terms and conditions of employment . . In finding the violation , the judge noted that the Respondents Crest and Buckley continued to have a statutory duty to comply with and give effect to the terms and conditions of the contract after it expired on 15 June 1981 , and their obligations could only have been rendered defeasible by proof that they had no- tified Complainant Union of their intention to modify some specific condition of employment and that the Union had either failed to re- quest bargaining or that they had bargained to impasse . The Re- spondent's except, contending that after sending a timely notice to terminate the contract, the Union refused to bargain over the matter, thereby relieving the Respondents of their obligation to comply with the contract's terms. In adopting the judge's finding of a violation, we note that the Respondents merely notified the Union of their in- tention to terminate the contract rather than giving notice of an in- tention to modify a specific term or condition of employment, and that the Respondents never offered to negotiate for a new contract and were therefore still bound to comply with the terms and condi- tions of the expired contract Bay Area Sealers, 251 NLRB 89 (1980), enfd as modified sub nom. Raynor v. NLRB, 665 F 2d 970 (9th Cir 1982) Initially it should be pointed out that the union in Crest Floors & Plas- tics, supra, had made a demand for bargaining upon the employer for a new contract Secondly it would appear that no demand by the union to bargain regarding modification or change of a term and condition of em- ployment is required where the employer fails to give notice to the Union of its intention to modify or change such specific term or condi- tion of employment The employer's notice to the union that it intends to terminate the contract at its expiration is not sufficient and the Union need not demand bargaining on such issue since the employer is still bound to comply with the terms and conditions of the expired contract as it stands. In order to find a refusal -to-bargain violation by an employer regarding the negotiation of a collective-bargaining agreement , a demand for bargaining still has to be made by the Union. as The Respondent did not again raise or discuss this defense in its letter-brief. WORLDWIDE DETECTIVE BUREAU health and welfare contributions, no other provisions of the contract were discussed . At this meeting the Re- spondent requested a reduction in the level of wages and health and welfare contributions , which request the Union rejected. According to Chiotis, after the Union called for an increase in these payments and the Re- spondent indicated, "[T]hat we just couldn't do the Wel- fare Fund because it was too much ," the Union "[F]latly said no and that was it." However, the evidence herein shows that by the conclusion of this meeting, an agree- ment was reached between the parties allowing the Union to audit the Respondent's books and records for the years 1985 and 1986, in order for the Union to evalu- ate and possibly reconsider the Respondent's request for a reduction in wages and health and welfare payments. The duty to bargain does not require a party "to engage in fruitless marathon discussions at the expense of frank statement and support of his position."94 Where there are irreconcilable differences in the parties' posi- tions after exhaustive good -faith negotiations, the law recognizes the existence of an impasse . 35 In Taft Broad- casting Co., 163 NLRB 475 (1967),36 the Board stated at 478, that impasse occurs "after good-faith negotiations have exhausted the prospects of concluding an agree- ment" and enumerated some of the considerations in making such a determination: Whether a bargaining impasse exists is a matter of judgment . The bargaining history, the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining exist- ed.37 When an impasse occurs, an employer is free to make unilateral changes in working conditions (i.e. wages, hours, health and welfare benefits, etc.) consistent with its offers which the union has rejected.38 However, the existence of an impasse does not insulate a party from the duty to bargain. When an impasse is reached, the duty to bargain is not terminated but only suspended.39 During this suspension the employer may not take action disparaging to the collective-bargaining process or amounting to a withdrawal of recognition of the union's representative status.40 34 NLRB v American National Insurance Co., 343 U.S. 395 ( 1952). aS Fetzer Television v. NLRB, 317 F 2d 420 (6th Cir 1963) 36 Affd. 395 F .2d 622 (D.C. Cir 1968) 37 Marriott In-Fhte Service, 258 NLRB 755 ( 1981), enfd 113 LRRM 3528 (2d Cir 1982), cert denied 464 U.S. 829 ( 1983); Towne Plaza Hotel, 258 NLRB 69 ( 1981), J. D. Lunsford Plumbing, 254 NLRB 1360, affd. 684 F 2d 1033 (D C Cir. 1982) 38 NLRB v. Katz, 369 U.S. 736 ( 1962), Taft Broadcasting Co., supra, Presto Casting Co., 262 NLRB 346 (1982) 39 NLRB v. Tex- Tan. Inc . 318 F.2d 472 (5th Cir 1963 ), Gulf States Mfg. Y. NLRB, 704 F.2d 1390 (5th Cir 1983): Philip Carey Mfg. Co., 140 NLRB 1103 ( 1963). 40 Plymouth Locomotive Works, 261 NLRB 595 ( 1982); Flex Plastics, 262 NLRB 651 ( 1982), enfd. 726 F.2d 272 (6th Cir. 1984). 155 Applying the above Board law to the facts in this case, and even under the most favorable construction of the Board's impasse doctrine, the Respondent's contention that the December 30, 1986 meeting resulted in an im- passe in negotiations is untenable.41 This meeting was admittedly not a negotiation session, merely one held pursuant to the wage reopener provision of the contract. Moreover, although the Union's response to the Re- spondent's request for a reduction in wage rates and health and welfare payments was initially met by the Union's demand for increases in these areas, the Union did agree to consider the Respondent's requests for re- ductions after an audit of the Respondent 's books and records to check the accuracy of the Respondent's con- tention that it could not continue to support the current level of payments and remain competitive in business. There is some controversy regarding whether or not the Union did in fact audit the books and records of the Respondent thereafter. Benvenuto testified that although the Union had requested an audit, the Respondent failed to permit it to do so. On the other hand, Chiotis testified that such an audit was in fact made by Matt Schimnenti, an accountant, on behalf of the Union and was conduct- ed in the presence of the Respondent's accountant.42 Be that as it may, no evidence was adduced at the hearing which in any way indicated that the audit sup- ported the Respondent 's claim of inability to pay. More- over, even had the evidence shown that the audit sup- 41 See for example Safelite Glass, 283 NLRB 929 (1987); Joey's Stables, 279 NLRB 728 ( 1986), Coalite, Inc, 278 NLRB 293 (1986) 42 The Union countered this with testimony by Benvenuto that Schim- nenti had made his audit on behalf of the Fund pursuant to lawsuits filed by the trustees of the Fund against the Respondent for the purpose of ascertaining the amounts allegedly due and owing to the Fund . If this is true, then this audit would be unrelated to the Union 's information re- quest The Respondent attempted to show that the Fund and the Union are the same entity because the Union leases office space from the Fund, three officers of the Union, including Benvenuto, are on the Fund's board of trustees along with three representatives of the signatory employers, and both the Union and the Fund conduct separate monthly meetings but usually on the same day However, Benvenuto testified that the Fund is a separate entity from the Union adminstered according to the terms and conditions of a trust document and a trust plan With respect to the Re- spondent's argument that the Fund and the Union are the same entity, see Raymond Prats Sheet Metal Co, 285 NLRB 194 (1982) (finding that the fund and the union were not the same entity in part because the trustees of the benefit funds included both union and employer representatives and not just union representatives). Moreover, I credit Benvenuto's testimony herein While Benvenuto did reconsider a previous answer he gave regarding whether or not the Re- spondent had agreed to allow an audit of its books and records , I found his overall testimony to be given in a forthright manner, to be generally cororborated and consistent with the testimony of the other witness for the General Counsel, Janes, and most importantly, apparently consistent with the other evidence in the record and therefore most believable While I do not discredit all the testimony of the Respondent 's witness, Chiotis, yet I found his testimony to be less believable because it consti- tuted in most part hearsay, uncorroborated by other independent evi- dence, and in other part his answers were elicited by leading questions by the Respondent's counsel Even if the Schimnenti audit had been conducted on behalf of the Union pursuant to the December 30, 1986 agreement , this fact alone would constitute no defense to the Respondent's subsequent refusal to bargain and withdrawal of recognition from the Union and its unilateral termination of health and welfare payments to the Fund since the Re- spondent failed, in fact, to provide the Union with any opportunity to bargain at all regarding these items. 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ported such a claim, no evidence was introduced show- ing that this claim alone would have supported a declara- tion of impasse and justified the Respondent's subsequent withdrawal of recognition and refusal to bargain and its unilateral cessation of health and welfare payments to the Fund and dues payments to the Union. Indeed, the evi- dence herein clearly shows that the Respondent did not bargain at all with the Union after the Schimnenti audit, let alone to impasse. The Respondent's attitude towards bargaining for a new contract after the December 30, 1986 meeting is best summed up by Chiotis' testimony regarding their discussions therein, "Well, I went there December the 30th in good faith . . . . I asked them to lower it because I could not pay it. So that's good faith. They said no. That's bad faith and that's it." The Respondent also defended its failure to pay al- leged outstanding union dues and health and welfare amounts prior to October 1987 by attacking the accuracy of the audit conducted by Fund employee Janes, and ar- guing that the Schimnenti audit cleared the Respondent of any arrearages owed to the Union and/or the Fund. Janes testified uncontradictedly that his audit was based on information supplied regularly by the Respondent itself. The Respondent presented no evidence that the in- formation it supplied was inaccurate or that the Janes audit was defective. Regarding the Schimnenti audit and its connection herewith, Chiotis testified that after Schimnenti had finished his audit, he told Chiotis and the Respondent's accountant that "there was nothing there." Whether or not there was arrearages due is an issue to be resolved at the compliance stage of this proceeding, that is, if an unfair labor practice is found against the Re- spondent, and again this would have no effect on the Re- spondent's obligation to make such payments under the bargaining contract. From all of the above, I find and conclude that the Respondent's defense regarding its claim of alleged im- passe in bargaining between it and the Union, and any defense predicated upon the Schimnenti or Janes audits to justify the Respondent's withdrawal of recognition and refusal to bargain with the Union, and its cessation of health and welfare payments and union dues to the Fund and the Union respectively, have no merit.43 c. Economic distress It is well established that an employer's claim of dete- riorating financial condition or economic distress , even if proven, "is not cognizable as a defense to the unilateral repudiation of monetary provisions in the collective-bar- gaining agreement" or the general obligation to bar- gain.44 Therefore, the Respondent's defense of this nature is rejected. 43 M.J. Santulli Mail Services, supra, KBMS, Inc, supra; Excelsior Pet Products, supra, Crest Floors & Plastics, supra; S/S Research & Develop- ment Corp , supra, Buck Brown Contracting Co., supra. 44 Triangle Appliance, 265 NLRB 1473 ( 1982) Also see Raymond Prats Sheet Metal Co, supra, International Distribution Centers, 281 NLRB 742 (1986), Hiysota Fuel Co., 280 NLRB 763 ( 1986), Excelsior Pet Products, 276 NLRB 759 (1985) d. The Respondent's bankruptcy petition In NLRB Y. Bildisco & Bildisco, 465 U.S. 513 (1984), the United States Supreme Court held that from the filing of a petition in bankruptcy until formal rejection is approved or denied by the Bankruptcy Court, a collec- tive-bargaining agreement is not an enforceable contract within the meaning of Section 8(d) of the Act. The Court thus held that a debtor in possession does not commit an unfair labor practice by unilaterally rejecting or modifying a collective -bargaining agreement after the filing of a petition but prior to court-approved rejection. Moreover, the Court in Bildisco made clear that the debtor in possession has a continuing obligation to recog- nize and bargain with the employer's collective-bargain- ing representative over the terms of a new contract pending rejection of an existing contract or following formal approval of rejection by the bankruptcy court. Subsequent to Bildisco, section 1113 was added to the Bankruptcy Code by the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, Stat 333 25 (1984), which set forth certain procedural and sub- stantive standards for the rejection of collective-bargain- ing agreements. In essence, the primary purpose of this section is to compel the trustee or debtor in possession to negotiate a modification of the bargaining contract in good faith before seeking rejection.45 Moreover, section 1113(f) of the Bankruptcy Code specifically provides that, "No provision of this title [Title 11 of the United States Code] shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collec- tive bargaining agreement prior to compliance with the provisions of this section." Subsequent to Bildisco, the Board held that an employ- er's unilateral rejection or modification of a collective- bargaining agreement after the filing of a petition in bankruptcy and before the bankruptcy court approves formal rejection was not an unfair labor practice .46 Fur- thermore, since Bildisco, the Board has held that an em- ployer's unilateral rejection or modification of a collec- tive-bargaining agreement prior to the filing of the bank- ruptcy petition may constitute unfair labor practices under circumstances consistent with Board and court law principles.47 As the Board stated in Dummyre Motor Ex- press, supra at 299: Accordingly, applying Bildisco, we must consider the portions of the complaint involving prepetition activity separate and apart from those involving ac- tivity which occurred on or after the date the bank- ruptcy petition was filed.48 However, the cited cases herein affected instances where the bankruptcy petition was filed prior to July 10, 1984, 45 This section of the Bankruptcy Code applies to reorganization cases commenced on or after July 10, 1984 46 San Juan Hotel Corp., 289 NLRB 1453 (1988) 47 Dunmyre Motor Express, 275 NLRB 299 (1985) Also see Hiysota Fuel Co, supra 48 Thus, the Board has held that Bildisco did not question or dispute its authority to adjudicate or remedy prepetition unfair labor practices See GMW. Inc, 279 NLRB 771 (1986), Lake Castings, 274 NLRB 225 ( 1985), Edward Cooper Painting, 273 NLRB 1870 (1985) WORLDWIDE DETECTIVE BUREAU 157 and were therefore controlled by the Supreme Court's decision in Bildisco, rather than the Bankruptcy Amend- ments and Federal Judgeship Act of 1984. In Barney Goldstein, Inc., 288 NLRB 92, 94 fn. 8 (1988), the Board held: Because this case arose in 1987, and the Respond- ent filed its brankruptcy petition in that year, the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, Stat 333 (1984), is con- trolling rather than NLRB v. Bildisco & Bildisco, 465 U.S. 513 ( 1984). Consequently we have not limited the Respondent 's make-whole liability for its 8(a)(5) violations to the prepetition period. Cf. Can-Do, Inc., 279 NLRB 819 fn. 3 (1986). In the instant matter similarly the case arose in 1988 and the Respondent filed its bankruptcy petition in 1988. In view of all of the foregoing, it is clear that the Re- spondent's bankruptcy defense is without merit. Under Board precedent , the Supreme Court's Bildisco decision and Section 1113 of the Bankruptcy Code, the Respond- ent was and remains obligated to meet with the Union for purposes of negotiating a collective bargaining agree- ment, and to continue to make health and welfare fund payments to the Fund and check off and remit union dues to the Union,49 subject of course to the provisions of section 1113 of the Bankruptcy Code. The failure or refusal of the Respondent to do so constitutes unfair labor practices.50 Additionally, counsel for the General Counsel asserts in his brief that, "Respondent's petition was filed pursu- ant to Chapter 13 rather than Chapter 11 of the Bank- ruptcy Code . It is therefore questionable whether the Bildisco decision has any application to the instant pro- ceeding whatsoever." This raises some interesting ques- tions. Chapter 13 of the Bankruptcy Code applies to, "in- dividuals with regular income" including a "Debtor en- gaged in business."51 Chapter 11 of the Bankruptcy Code effects corporations and partnerships, etc.52 The Bildisco case involved a debtor in possession filing under Chapter 11 of the Bankruptcy Code, as do most if not all of the Board cases cited in this section of the decision. Moreover, Section 103(a) of the Bankruptcy Code pro- vides, "Except as provided in Section 1161 of this title Chapters 1, 3 and 5 of this title apply in a case under Chapter 7, 11 or 13 of this title." Therefore, I believe that the Bildisco case ruling, the Boards subsequent deci- sions relating to Bildisco, and section 1113 of the Bank- ruptcy Code, although primarily affecting chapter 11 cases, would be equally applicable as to the above gener- al principles of law, to chapter 13 cases as well. 49 As herembefore noted , Chiotis' testimony indicates that the Re- spondent discontinued the check off and forwarding of union dues to the Union after September 1987, aside from any arrearages which may have been due prior thereto. 50 NLRB v. Bildisco & Bildisco, supra: Barney Goldstein. Inc, supra; Hiysota Fuel Co, supra, GMW. Inc, supra, Dunmyre Motor Express, supra, Lake Castings, supra, Edward Cooper Painting, supra S' 2 U S.C. § 1304. Sec 1304 defines a "Debtor engaged in business" as "A debtor that is self-employed and mcures trade credit in the produc- tion of income from such employment is engaged in business." 52 2 U.S.C. § 101. However, on another tack, the Respondent herein is admittedly a New York corporation . Any unfair labor practices found and remedies imposed would be applica- ble against the Respondent as such a business organiza- tion. The bankruptcy petition raised 25 as a defense herein was filed by, "John Chiotis d/b/a Worldwide De- tective Bureau," presumably as a "Debtor engaged in business."53 Therefore, I assume that the General Coun- sel also argues alternatively, that the parties (Respond- ent) in both proceedings, the bankruptcy proceeding and this case, are different and therefore, that Bildisco and/or section 1113 of the Bankruptcy Code has no application herein. Be that as it may, under court and Board law as applied to the facts present in the case at bar, the result would be the same as regards a finding of unfair labor practices, except that the remedy proposed therefore would be affected by the Bankruptcy Code provisions if found applicable to the Respondent herein. Regarding the Respondent 's assertion of the automatic stay provisions under the Bankruptcy Code, it is appar- ent that such provisions do not preclude the Board from hearing and deciding unfair labor practice cases per se, although such cases are subject to the provisions of the Bankruptcy Code where applicable and as defined by Board and court law as set forth hereinbefore. e. Union misconduct The Respondent also asserts as a defense that the Union engaged in a course of conduct which was de- signed to and did accomplish the destruction of the Re- spondent's business. That the Respondent is "engaged in a very competitive business which has a very high rate of employee turnover," and that the Respondent's cus- tomers can terminate its services at any time for any or no reason was not contradicted in the record. The Re- spondent in its brief states: Chiotis testified that, commencing in early 1987, the Union stationed its agents in the lobby of his build- ing on pay days at which time the union representa- tives handed employment applications to Respond- ent's employees . Further, the Union sent its agents to work locations and engaged Respondent's em- ployees in lengthy conversations during working time. Chiotis also testified that union representatives had never before engaged in such activities. The Union's conduct caused grievous financial losses to the Respondent and he was driven into bankruptcy on 30 March 3, 1988. . . . Is an employer obliged to bargain with a union while the union follows a course of conduct designed to and which eventually succeeds in destroying the employer. Union President Benvenuto specifically denied that the Union engaged in any such "campaign." 5' It should be noted that in a prior Board case, Worldwide Detective Bureau, supra, the respondent therein, is apparently the same "business organization" as the party filing the bankruptcy petition involved in the instant case, who was found to be an "individual proprietor" by the Board in that prior matter. 158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent's above allegations were supported solely by the mostly hearsay testimony of Chiotis, herein.54 Chiotis' only personal experience regarding the incidents referred to, involved his observation of "two fellows" in the lobby of the building wherein the Re- spondent maintains its offices, whom he could not per- sonally identify as union representatives but was told they were so, by an employee named Saunders and a po- liceman called to the scene, both of whom were not called as witnesses to confirm Chiotis' testimony; and a guard employee in a Goldome branch bank who gave him a card allegedly with the name of a Union official thereon. Chiotis' description of this and the other inci- dents related herein evidenced his inability to recall the names of the parties who had reported such incidents, the dates thereof, and what was said and even done, except for his own assessment of what had occurred. The Respondent has the burden of establishing the ef- ficacy of its defenses rasied to justify its actions regard- ing alleged unfair labor practices. Its failure to call wit- nesses to corroborate Chiotis' mostly hearsay testimony and my prior crediting of Benvenuto's testimony over that given by Chiotis herein, leads me to find that the Respondent has failed to sustain its burden of proof re- garding this defense . 53 Moreover, article 17 of the 1984- 1987 agreement provided that union representatives: [S]hall have access to the location being worked, during working hours, to ascertain whether the Agreement is being properly observed, providing there is a minimum interruption of the normal course of operation at the location. Even assuming that union representatives did visit the sites in question at some time material to this matter, the Respondent failed to offer any corroborative evidence to support Chiotis' mostly hearsay evaluation of what had occurred. 56 No nonhearsay evidence was presented by the Respondent to show that the Union' s presence at these sites, and what then occurred, caused anything more than "minimum" interruption of the "normal course of operations" at the Goldome Bank and Tower Records' locations. Additionally, the Respondent's claim that as a result of the Union's above alleged activity the Respondent was "caused grievous financial losses" and "was driven into bankruptcy," was not established. The only evidence 54 As the Board stated in RJR Communications, 248 NLRB 920, 921 (1980) Courts have long recognized that hearsay evidence is admissible before administrative agencies, if rationally probative in force and if corroborated by something more than the slightest amount of other evidence (authority cited) The Board jealously guards its discretion to rely on hearsay testimony in the proper circumstance. See H H Robertson Co., 263 NLRB 1344 (1982) ss From the failure of a party to produce material witnesses or rele- vant evidence obviously within its control without satisfactory explana- tion, the trier of the facts may draw an inference that such testimony or evidence would be unfavorable to that party ParAview Furniture Mfg. Co, supra; 7-Eleven Food Stores, 257 NLRB 108 (1981), and cases cited therein ss I note that the presence of police during one alleged incident was caused by the Respondent itself, with Chiotis contacting the police pre- cinct. and not by the landlord who had allegedly reported the incident to Chiotis and was allegedly distressed by it aside from Chiotis' testimony that this was so, with no other evidence being offered by the Respondent to sup- port a causal connection between the Union's above-al- leged actions and the Respondent 's filing a petition in bankruptcy, was the petition itself. Again, the Respond- ent must assume responsibility for its failure to prove and sustain its affirmative defenses. From the above, I find and conclude that the Re- spondent's defense of this nature was clearly not support- ed by the evidence and therefore the Respondent's argu- ment that the Union's alleged misconduct made it impos- sible to test the Respondent's good faith is without merit, especially in light of the Respondent's own unfair labor practices.57 f. Alleged misconduct at the hearing by counsels for the General Counsel and the Union Lastly, the Respondent asserts as a defense that: There has been an absolute absence of good faith at all stages of this proceeding on the part of the Gen- eral Counsel, the attorney for the Charging Party, the Charging Party and its International President. This conclusion is evidenced by: (a) The strange management of General Counsel's Exhibits 6, 8 and 9 and their envelopes. (b) The incredible testimony of Benvenuto. (c) The failure of General Counsel and counsel for the Charging Party to produce the audit of Re- spondent's records prepared by the Union's Certi- fied Public Accountant. This defense also relates to the Respondent's motion to dismiss the complaint made at the hearing regarding al- leged misconduct on the part of counsels for the General Counsel and the Union concerning these exhibits. The Respondent's charges constitute a serious offense, if proven and found to be true, and merits the consider- ation of severe penalties by the Board and the Courts.58 Regarding this, counsel for the General Counsel states in his brief: The revelation by counsel for the Charging Party and Mr. Benvenuto that the signature on the Return Receipt for G.C. 6 (as well as G.C. 3 and 9) was that of Sean Tibbets, an employee (as well as G.C. 3 and 9) was that of Sean Tibbets, an employee of the Fund, was a source of surprise not only to the court, but to counsel for the General Counsel. Indeed, Counsel for the General Counsel was un- aware of the employment status of the signer of the Return Receipt until so identified by Mr. Dandeau during the hearing. 51 The General Counsel's brief cites Holmes Detective Bureau, 256 NLRB 824 (1981), in support thereof. In that case the union's president had explicitly stated several times that he "would put Respondent out of business " The Board found this no defense to that respondent 's refusal to bargain The General Counsel 's brief also remarks, "Here, of course, apart from the fact that no evidence of misconduct by the Union was ad- duced during the hearing, no such statements have been attributed to the Union or its representatives." sa Multimatic Products, 288 NLRB 1279 (1988), and cases cited therein WORLDWIDE DETECTIVE BUREAU 159 Thus, the allegations of counsel for the Respond- ent that counsel for the General Counsel engaged in a "premeditated" effort to perpetrate a "fraud" upon the Court and the Respondent (T. 108, 115- 116) are not only untrue, they are improper, preju- dicial, and slanderous. First, counsel for the General Counsel was, as he stated at the hearing, initially unable to locate the Return Receipt for G.C. 6 amongst the documents in his files, and he therefore produced a photocopy of the Return Receipt. (T. 98-99) However, that copy also contained Tibbets' signature. Thus, Mr. Curley's allegation that coun- sel's initial inability to locate the receipt constituted a deliberate effort on the part of the General Coun- sel to conceal evidence is obviously simply untrue. As to the introduction of the envelops received as G.C. 10, 11 and 12, which indicated that G.C. 3, 6 and 9 had been returned unclaimed, these exhibits were introduced in an effort to clarify the record with respect the travels of G.C. 3, 6 and 9. Counsel for the General Counsel was unaware at the time he introduced G.C. 10, 11 and 12 of the either the identity fo Mr. Tibbets or the practice of the Postal Service with respect to obtaining signatures on Return Receipts for unclaimed Certified Mail, and there was absolutely no attempt to deceive on his part. Counsel for the Respondent should be cen- sured for this hasty, unwarranted and repeated alle- gations to the contrary. A careful review of the record evidence herein shows that counsel for the General Counsel, Dean Hubbard, ap- peared to be unawares and taken by surprise by the reve- lation at the hearing that Tibbets, who had signed the green return receipt cards annexed to General Counsel's Exhibits 6 and 9, was an employee of the Fund. More- over, from the remarks of Hubbard during his offer of these documents into evidence, he had received at least the return receipt card for General Counsel's Exhibit 6 that very morning of the hearing, and his proceeding as he did regarding these exhibits, it would seem under the circumstances present, as not being unreasonable or cal- culated to mislead the administrative law judge. The Union's attorney should have informed Hubbard of the identity of Tibbets when Hubbard was given the cards, but his failure to do so without more, especially in view of his apparently honest and heatfelt protestation that his actions therein were never intended to mislead, in my opinion does not warrant an affirmative finding of mis- conduct. It could also be argued that the strategy of offering the demand letters in evidence to show their content and then the envelopes to show that one was delivered and two were "unclaimed" is a reasonable alternative to plac- ing the envelopes with their respective enclosed letters into evidence as integrated exhibits. However, as I indi- cated at the hearing during this incident, and before the envelopes were placed into evidence, that I could see where the method used by Hubbard initially, regarding the letters with their attached return receipt cards, could be construed as confusing or actually misleading unless and until the explanation which followed, the identifica- tion of Tibbets, and the subsequent entry into evidence of the envelopes in which the letters were mailed, oc- curred. Be that as it may, after considering what had oc- curred and the fact that nothing untoward occurred thereafter regarding any action on the part of counsels for the General Counsel and the Union at the hearing, I do not find any acts of misconduct on their part, or any conduct engaged in by them at the hearing which would require the dismissal of the complaint herein. Nor, under the circumstances, will I recommend censure against the Respondent's attorney for his remarks regarding this in- cident, although I do believe that they were "made in haste" and were a little strong.59 As regards Benvenuto's testimony, aside from previ- ously finding it credible, the Respondent failed to show in any way how it could be construed as "incredible." Additionally, as set forth in the General Counsel's brief, it was part of counsel for the General Counsel's presen- tation of this case that the Schimnenti audit was not rele- vant to the issues herein because it was accomplished on behalf of the Fund, and therefore this audit considered different aspects of the Respondent's books and records as would have been relevant and material to a union audit to ascertain whether the Respondent's assertion of economic distress was valid and necessitated consider- ation of the Union amending its economic demands when 59 In his brief counsel for the General Counsel asserts that. The evidence adduced by General Counsel clearly establishes the Union's status as a Sec 2(5) labor organization which is the exclusive representative of a unit of employees appropriate for collective bar- gaining under Sec 9(b) of the Act. [I previously found herein that this is true.] In this regard, the Board 's decision in M. J. Santulli Mail Services, 281 NLRB No. 170 (1986), is particularly instructive in this case, the Board approved an ALJ's request that it take dis- ciplinary action against Respondent 's counsel by expressing its strong disapproval of Counsel's contesting the Union's labor organization status where Respondent could not have entertained a good faith doubt about the status of the Union , citing NLRB Rules and Regula- tions Sec 102.212. M. J Santulli Mail Services, supra, 281 NLRB No. 170, slip op at 1-2, In I There, as here, Respondent denied the Union's labor organization status in its Answer and , at the hearing, requested copies of collective bargaining agreements which could have been subpoenaed well in advance of the hearing, in spite of the fact that General Counsel adduced evidence which clearly estab- lished the Union's labor organization status, including the fact that the Union had represented a large majority of Respondent's employ- ees for several years . id. at 1-2, fn 1, and ALJ decision at 2-5. These facts are clearly analogous to the instant proceeding (T. 91- 94) While I agree somewhat with counsel for the General Counsel 's remarks, there are some differences between the Santulli case and the instant case in that the conduct of counsel for the Respondent , Curley, was not as untoward and contumacious as that of the attorney representing the re- spondent in the Santulli. For example, Curley did not elicit immaterial or unrelated testimony and did not ask purely argumentative questions re- garding these issues. Therefore I do not recommend strong disciplinary action against him. However , Sec 102 21 of the Board's Rules and Regu- lations was designed to prevent the inclusion in answers of statements knowingly made in bad faith and with the purpose of delaying the hear- ing. Thus a respondent 's counsel should not be allowed to deny allega- tions in a complaint without having an adequate basis therefore or a lack of knowledge or information upon which a reasonable assessment can be made thereof Therefore, under the circumstances in this case, and since no other instances where counsel for the Respondent has engaged in simi- larly inappropriate conduct have been brought to my attention , I recom- mend that the Board limit its disciplinary action to expressing disapproval of such conduct and cautioning counsel for the Respondent against simi- lar conduct in future appearances before the Board See M J Santulli Mail Services, supra, fn. I 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD negotiations commenced for a new agreement, or for any modification of the existing contract. If the Respondent perceived the audit as important to its defense of the al- legations in the complaint, it should have subpoenaed such audit itself, and introduced the audit as its own ex- hibit in evidence. I therefore, find that the defense raised by the Re- spondent regarding alleged misconduct at the hearing on the part of counsels for the General Counsel and the Union has no merit. From all of the foregoing, I find and conclude that by withdrawing recognition from the Union and failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of its em- ployees in an appropriate unit, and by failing to check off union dues from its employees and failing to make payments to the Union's Health and Welfare Fund from October 1987 and thereafter without prior notice to the Union, the Respondent engaged in unfair labor practices in violation of Sections 8(a)(1) and (5) and 8(d)60 of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section IV, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully with- drew recognition from the Union on or about November 18, 1987, I shall recommend that it be ordered to recog- nize the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that the Re- spondent, upon request, bargain collectively with the Union with respect to the rates of pay, wages, hours of employment and other conditions of employment of its unit employees and if an understanding is reached, embody such understanding in a signed agreement.6 t Of course any such agreement would be subject to the deci- sion of the bankruptcy court regarding the Respondent's petition filed therewith, and pursuant to the Bankruptcy Code and particularly Section 1113 thereof added by the Bankruptcy Amendments and Federal Judgeship Act of 1984, supra. 60 Parkview Furniture Mfg Co, supra, S/S Research & Development Corp, supra; Buck Brown Contracting Co., supra. Also see cases also pre- viously cited throughout the "Analysis and Conclusions " section of this decision 61 Wells Fargo Armored Service Corp., 290 NLRB 936 (1988); Parkview Furniture Mfg Co, supra; M. J. Santulli Mail Services , supra; KBMS. Inc, supra, Crest Floors & Plastics, supra, Bel-Air Bowl, 247 NLRB 6 ( 1980). Having also found that the Respondent unlawfully dis- continued contractually required contributions into the Union's health and welfare trust fund since on or about October 1, 1987, I shall recommend that the Respondent be ordered to make its employees in the appropriate unit whole by paying all health and welfare fund payments which have not been paid and which would have been paid absent the Respondent 's ulawful discointinuance of such payments. 62 I also recommend that the Respondent be ordered to reimburse these employees for any losses or expenses in- curred by them because of the Respondent's failure to remit the contractually required health and welfare trust fund payments.63 In addition, having found that the Respondent unlaw- fully failed to check off union dues and remit these pay- ments to the Union, I will recommend that the Respond- ent be ordered to make whole the Union for any loss of dues suffered as a result of its failure to comply with the dues provisions of the collective bargaining agreement and after its expiration.64 I recommend that interest be paid on any amounts found to be owing by the Respondent pursuant to the remedy section of this decision in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).65 Because of the nature of the unfair labor practices found herein and in order to make effective the interde- pendent guarantees of Section 7 of the Act, I recom- mend that the Respondent be ordered to refrain from in any like or related manner abridging any of the rights guaranteed employees by Section 7 of the Act. The Re- spondent should also be required to post the customary notice. 68 Because this case arise in 1988 , and the Respondent filed its bank- ruptcy petition in that year, the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub L 98-353, Stat 333 (1984), is controlling rather than NLRB Y, Bildisco & Bildisco, 465 U S. 513 (1984) Consequent- ly, I have not limited the Respondent's make-whole liability for its 8(a)(5) violations to the prepetition period . Cf Can-Do, Inc., 279 NLRB 819 fn 3 (1986) Because the provisions of employee benefit fund arrangements are vari- able and complex, the Board does not provide for the addition of a fixed rate of interest on unlawfully withheld fund payments at the adjudicatory stage of a proceeding The Board leaves to the compliance stage the question whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy the "make-whole " remedy. Depend- ing on the circumstances of each case , these additional amounts may be determined by reference to the provisions in the documents governing the funds at issue and, when there are no governing provisions , by evi- dence of any losses directly attributable to the unlawful withholding, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collateral losses Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979). 63 Barney Goldstein, Inc., supra. Reimbursement to be made as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd 661 F.2d 940 (1st Cir. 1981) 64 Parkview Furniture Mfg. Co., supra. 65 Interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest on amounts accrued prior to January 1, 1987, shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) WORLDWIDE DETECTIVE BUREAU 161 CONCLUSIONS OF LAW 1. The Respondent, Worldwide Detective Bureau, is now and has been at alltimes herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Allied International Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. The following constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All guards employed by Worldwide Detective Bureau, excluding all executives, supervisors, and professional, confidential, clerical, and non guard employees employed this Employer. 4. At all times material herein, the Union has been and is the exclusive bargaining representative of all the em- ployees within the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition and failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the Respondent's employees in the appropriate unit , the Respondent has violated Section 8(a)(1) and (5) of the Act. 6. By unilaterally ceasing to make contributions to the Allied Health and Welfare Fund as contractually re- quired and by failing to withhold union dues from unit employees and remitting the dues to the Union the Re- spondent has violated Sections 8(a)(1) and (5) and 8(d) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed66 (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to affectuate the policies of the Act. (a) On request, recognize and bargain collectively with the Union as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, hours of employment, and other terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement.67 (b) Make whole its employees by making all payments it has failed to pay to the Allied Health and Welfare Fund as required by the 1984-1987 collective-bargaining agreement since October 1, 1987, and by making all pay- ments due to the Union regarding its failure to check off and remit union dues from these employees , all as pro- vided in the remedy section of this decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in New York City, New York, copies of the attached notice marked "Appendix."68 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ORDER The Respondent, Worldwide Detective Bureau, New York, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Withdrawing recognition of the Union and failing and refusing to bargain collectively concerning rates of pay, wages, hours of employment and other terms and conditions of employment with the Union as the exclu- sive bargaining representative of all its employees in an appropriate unit. (b) Unilaterally ceasing to make contributions to the Allied Health and Welfare Fund and failing and refusing to withhold union dues from unit employees and to remit the dues to the Union as required by the 1984-1987 col- lective-bargaining agreement. 66 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 67 As herembefore indicated , the enforcement of such a contract would be subject to the bankruptcy court 's decision regarding the Respondent's petition filed therein and the applicable Bankruptcy Code provisions 88 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 or- dered us to post and abide by this notice. WE WILL NOT withdraw recognition and/or fail and refuse to bargain collectively with the Union concerning rates of pay, wages, hours of employment and other terms and conditions of employment, as the exclusive 162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining representative of all our employees in an ap- propriate unit. WE WILL NOT unilaterally cease making contributions to the Allied Health and Welfare Fund as required by the 1984-1987 collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain collec- tively with the Union as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment. WE WILL make whole our employees by transmitting the amounts we have failed to pay to the Allied Health and Welfare Fund for health and welfare and to the Union for union dues required by the 1984-1987 collec- tive-bargaining agreement with the Union , and by reim- bursing them for any losses attributable to our failure to make such payments, plus interest. WORLDWIDE DETECTIVE BUREAU