Area Transportation Co., Inc.

AREA TRANSPORTATION CO 751 Roll & Hold Division, Area Transportation Co., Inc. and United Steelworkers of America, AFL- CIO, CLC. Case 13-CA-28292 September 20, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On September 28, 1989, Administrative Law Judge Lowell Goerhch issued the attached deci- sion The General Counsel and the Respondent each filed exceptions and a supporting brief, and the General Counsel and the Respondent each filed a responding brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's findmgs,2 and conclusions 3 and to adopt the recommended Order as modified 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Roll & Hold Division, Area Transporta- tion Co Inc. Gary, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified I Insert the followmg as paragraph 1(e) and re- letter the subsequent paragraph "(e) Withdrawing recognition and refusing to bargain with the Union dunng the term of the col- lective-bargaining agreement" The Respondent asserts in Its exceptions that the judge's rulings, find- ings, and conclusions demonstrate bias and prejudice On careful exami- nation of the judge's decision and the entire record, we are satisfied that these contentions are without merit 2 In the third paragraph of sec III,A, of his decision, the judge inad- vertently referred to the date of Koflun's June 10, 1988 letter as January 10, 1988 Because a finding of surface or bad-faith bargaining would not affect the remedy in this case, we find it unnecessary to pass on the judge's fail- ure to decide that Issue Contrary to the Respondent's contentions, we find that the record does not demonstrate that there were any conditions precedent to contract for- mation We therefore find, as the judge found, that the Respondent and the Union reached a full and final collective-bargaining agreement on Oc- tober 14, 1988 Because a union enjoys an irrebuttable presumption of majority status during the term of a collective-bargaining agreement, the Respondent was precluded from polling its employees concenung their support for the Union at any time between October 14, 1988, and the contract's expiration s At Conclusion of Law 6, the judge Inadvertently failed to state that the Respondent's conduct violated Sec 8(a)(S) and (1) 4 We shall modify the judge's remedy and recommended Order to re- quire that backpay be computed as prescnbed in Ogle Protection Service, 183 NLRB 682 (1970) 2 Substitute the following for paragraph 2(b) "(b) On the execution of the above agreement, give retroactive effect to the provisions, and make whole its employees for any losses they may have suffered by reason of the Respondent's failure to sign the agreement, in the manner set forth m the remedy section, continue in effect, subject to bar- gaining with the Union on request, any and all ben- efits that it has given employees since October 14, 1988, and otherwise comply with the remedy" 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT fail or refuse to execute the col- lective-bargaining agreement agreed to by us and the United Steelworkers of America, AFL-CIO, CLC WE WILL NOT change the terms and conditions of employment set forth in the agreement during the term of the agreement without the consent of the Union WE WILL NOT unilaterally and without notice to the Union change terms and conditions of employ- ment of our employees WE WILL NOT unlawfully poll our employees whether they want to continue to be represented by the Steelworkers Union or whether they want to agree to the collective-bargaining agreement ne- gotiated between us and the Union during the period the contract is binding on the parties WE WILL NOT unlawfully withdraw recognition and refuse to bargain with the Union during the period that the above collective-bargaining agree- ment is bmdmg on the parties WE WILL NOT in any like or related manner mterfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL forthwith sign the collective-bargain- ing agreement referred to above and recognize and bargain collectively with the Union during the term of the contract WE WILL give retroactive effect to the provi- sions of the agreement and make whole our em- ployees for any losses they may have suffered by 299 NLRB No 114 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reason of our failure to sign the agreement, with in- terest WE WILL continue in effect, subject to bargain- ing with the Union on request, any and all benefits that we have given our employees since October 14, 1988 ROLL & HOLD DIVISION, AREA TRANSPORTATION Co, INC Emilie Fall, Esq , for the General Counsel Leonard Kean, Esq , of Chicago, Illinois, for the Re- spondent David L Gore, Esq , of Chicago, Illinois, for the Charg- ing Party DECISION STATEMENT OF THE CASE LOWELL GEORLICH, Administrative Law Judge The ongmal charge in this case, filed by United Steelworkers of America, AFL-CIO, CLC (the Union) on January 10, 1989, was served on Roll & Hold Division, Area Trans- portation Co, Inc (the Respondent) by certified mail on January 12, 1989 The first amended charge filed by the Umon on February 15, 1989, was served by certified mail on the Respondent on February 16, 1989 A second amended complaint and notice of hearing was issued May 2, 1989 The second amended complaint, among other things, alleges that the Respondent had refused to execute a labor agreement that the Union and the Respondent had agreed on, in violation of Section 8(a)(1) and (5) and Section 8(d) of the National Labor Relations Act (the Act) The Respondent filed a timely answer denying that it had engaged in the unfair labor practices alleged The matter was heard on June 6, 7, and 8, 1989, at Chicago, Illinois Each party was afforded a full oppor- tunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit pro- posed findings of fact and conclusions, and to file briefs All briefs have been carefully considered On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENT At all times material, Respondent, a corporation with an office and place of business in Gary, Indiana (the Re- spondent's facility), has been engaged in the business of receipt, warehousing, and shipping of metal products During the past calendar year, the Respondent, in the course and conduct of business operations described above, derived gross revenues in excess of $50,000 from the transportation of freight and commodities from the State of Indiana directly to points outside the State of In- diana The Respondent is not, and has been at all times mate- rial, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES INVOLVED A The Facts The pertinent facts are as follows The Union was certified as the collective-bargaining agent for the Respondent's employees on November 30, 1987 Bargaining sessions commenced on March 10, 1988, and concluded with what is referred to as a "hand- shake" agreement on October 14, 1988 Luther Jenkins, staff representative for the Union, was chief negotiator for the Union, Attorney Leonard Koflun was the chief negotiator for the Respondent Other umon negotiators were Randy Eubanks, Warren E Fryer, and Terry Edwards, other Respondent negotiators were Glen Becker, warehouse superintendent, and Bill Zucher, safety department supervisor During the negotiations, which had lasted for around 16 sessions, the parties had agreed to dispose of the non- economic issues first By June 10, 1988, the parties had come to "complete accord" regarding intent and pur- pose, management, working conditions, lunch period, scheduling of overtime, semonty and job openings, tem- porary vacancies, reporting pay and callout pay, late- shows, warehouse person, job description, crane opera- tor, and track mobile operator job description These subjects were reduced to contract language and submit- ted to the Umon as "complete accord" 2 subjects along with Koflm's letter of January 10, 1988 Thereafter the parties turned to economic matters After several negoti- ating sessions a mediator joined the negotiations The Respondent remained firm in its position that it would not grant a wage increase and purposed a 3-year wage freeze At the second negotiating session with the media- tor, and at the last negotiating session on October 14, 1988, the Respondent's position remained unchanged The union representatives considered the matter among themselves and decided to accept the Respondent's pro- posal They returned to the Respondent's representatives and related that the Union would accept the Respond- ent's proposal All shook hands and thus the "hand-shake agreement came into being Committeeman Fryer expressed in these words why the Union capitulated And we knew that we had to get the union in at any cost And if it meant no wage increase for three ' Koflun's choice of words in his letter to the Union dated June 10, 1988 2 "[P]arties negotiatmg for a contract always have the ability to make any provisions final and binding along the way, thus precluding any fur- ther negotiations on those issues" Stroehmann Bakeries, 289 NLRB 1523 (1988) AREA TRANSPORTATION CO 753 years, and having to eat dirt on some subjects we were willing to do that for three years to get it in So when we shook hands across the table with you gentlemen, and Mr Madden, and everybody the contract was in as far as I am concerned as it stood at the point Becker testified that he was "shocked" that "the union accepted no wage increase instead of pursuing a wage in- crease" William Kent Robins, vice president and general manager of the Respondent, testified, "I was surprised that the union agreed to the terms that they agreed to" Jenkins submitted the "hand-shake" agreement to the union membership at a union meeting several days after Octoer 14, 1988 "About 14 of the men" were present 3 After the "hand-shake" agreement was explained by Jen- kins, a secret ballot vote taken unanimously, favored the acceptance of the "hand-shake" contract On October 17, 1988, the Respondent distributed the following statement to its employees We are informed that our Warehouse Employees unanimously accepted the Steel Workers' Union Contract Accordingly, so there will be no misun- derstanding about what the Union agreed to, please note the following, The Union and the Union Negotiationg Com- mittee agreed that there will be no wage increase here for three years and no merit increases The Union and the Union Negotiating Com- mittee agreed that you will no longer have profit shanng plan and you cannot participate in the Company's savings and pensions (401-K) Plan The Union and the Union Negotiating Com- nuttee agreed there will be no increase in Holi- day vacations, or overtime pay, and no shift dif- ferentials for three years The Umon also insisted that all of you must join the Union and pay dues which it wants taken out of your paychecks as soon as possible We are obligated by law to put the agreements into a written contract and will do so, but we just don't want any misunderstanding with our employ- ees concerning what the Union agreed to and ac- cepted for you Apparently the Respondent had received information that some of its employees wee discontented with the contract, for it distributed the following statement to its employees on October 20, 1988 We are receiving numerous questions about the Steelworkers' Union and its recent negotiations and we want to tell you or your rights 1 The Law gives you the right to join a Union or not to join a Union 2 The Law protects you against threats and intimidation concerning your desire to join or not to join a Union 3 About 20 employees were in the bargaining umt 3 You cannot be discharged for refusing to go along with anyone's Union activities 4 You have the right to accept or reject the Union's terms 5 You have the right to revoke Union Author- ization cards if you want to 6 If, as we are told, the Umon Contract terms were not ratified by a majority, it is up to you to Petition the Steelworkers' Union and inform them if you don't agree with what they have done If anyone threatens you or your property with harm because you exercise your rights, notify the Supervisors We will not tolerate anyone threatening our employees for any reason Anyone who does will be disciplined up to and including discharging no matter who it is In the meantime, Jenkins had contacted Koflun and in- formed him that the "contract was accepted unanimously with the people present" at the union meeting On October 19, 1988, Jenkins addressed the following letter to Koflcm Dear Atty Koncm In regard to our conversation Sunday, October 16, 1988 I notified you to the fact that the Contract Agreement was ratified unanimously by the em- ployees of Roll and Hold that were in attendance I also notified the Federal mediator, Mr Mike Madden that was present when we reached the Contract Agreement between Roll and Hold Divi- sion and the United Steelworkers of America Please be advised it would be appreciated if you ready the contract for signatures immediately Kofiun replied by a letter dated October 31, 1988 Dear Mr Jenkins Thank you for your recent letter Unfortunately, I have been away from the City for most of the time since it was received I am beginning the prep- aration of the draft of the Agreement and expect to have it in your hands early next week On November 9, 1988, Koflun addressed the following letter to Jenkins Enclosed please find two copies of the Agree- ment incorporating all of the terms agreed upon during negotiations I have tried to be sure that everthmg has been included but, as you recall, things moved quickly towards the end, and I may have overlooked something Accordmly, I ask that you carefully check the contents of the enclosed and discuss with me any inadvertent omissions If the Agreement is otherwise in order, please ar- range to have it signed I have provided the ten sig- nature lines which you requested When the Union has obtained all the requisite signatures, please return both of the Agreements to me I will then re- 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quest that the Company representative sign the Agreement 4 According to Jenkins, this agreement (the draft agree- ment) was an exact composition of the "hand-shake" agreement, except that there was no specific mention of the medical plan or health benefits plan that the Re- spondent was using for its employees Jenkins, who had been on vacation, called Koflun in early December and brought to his attention the fact the medical or health plan had not been specifically mentioned in the contract Kofkm responded that he would send it to him and it could be incorporated before the signature sheet "It would be in letter form "5 During the period that parties were negotiating, the Respondent had in effect a health plan for its employees that is marked General Counsel's Exhibit 22, "Health Benefits Plan for Employees of Area Transportation Company," dated February 1, 1988 The following provision appeared m the draft agree- ment LOCAL WORKING CONDITIONS Except as they conflict with the express terms of this Agreement, all understanding with the Union or practices established by negotiations with the local Union officers and all practices or customers relating to wages, hours or working conditions, which are presently in effect (except the Company's 401 (k), pension, retirement or profit sharing plans) shall continue in effect for the life of this Agree- ment, unless the Company and the Union agree as to the discontinuance or modification of such local understanding, practice or custom All local agree- ments shall be in writing It is expressly agreed that the Company plans described above shall not apply to employees covered by this Agreement This identical provision appears in the contract lan- guage submitted by Koflun to the Union on June 10, 1988, language with which the parties were in "complete accord" While the parties agreed that the Respondent's 401(K) pension, retirement, or profit-sharing plan would not be included in the contract, the credited evidence is that the health benefits plan as not to be excluded, but would be included under the contract The Respondent's claim that that the parties did not have a meeting of the minds to the effect that the health benefits plan was to be included under the contract at this stage is an after- thought and tantamount to raising a red herring More- over, Koflun agreed that the health benefits plan was to have been included in the contract Furthermore, when the Respondent wrote the employees on October 17, 1988, pointing out to them what was not included m the contract and what they were losing, such as the profit- 4 Regarding the sigmng of the agreement, Jenkins testified that he told Kofkm that, "we would have to sit down together and we would sign the documents together The negotiating committee from the com- pany and the negotiating committee from the umon I made It clear My signature was the contract The contract is in effect as long as it has my signature on it" 5 In this regard Jenkins' testimony was not contradicted sharing plan, it did not make claim that the health bene- fits plan was not included in the agreement Some time later, in late December or early January, Jenkins phoned Koflan and informed him that he was ex- pecting the attatchment to the agreement Koflun re- sponded that the "company decided they are not going to sign" the agreement "[T]hey don't think that you still work [sic] as represent the majority of the employees because the company didn't feel the United Steel- workers represented a majority of the employees" On December 14, 1988, the Respondent's employees were presented with a ballot as follows SECRET BALLOT [ ] THE UNION DOES NOT REPRESENT ME AND I DO NOT WANT THE COMPANY TO AGREE TO THE TERMS OF THE THREE- YEAR CONTRACT [ ] I WANT THE UNION AND THE DEAL IT NEGOTIATED Robbins testified that the poll was conducted because he was getting "signals that something just wasn't quite right compared with all of the outcry° from the people that they were allegedly trying to represent" Pnor to the employees' voting Robbins read To all Roll & Hold warehouse employees A year ago, the steel workers union came m to Roll & Hold and we began the process of negotiat- ing a union contract Last month, the steelworkers union agreed that Roll 8c Hold employees would re- ceive no wage increases for three years and that a number of benefit plans, including incentive raises, bonuses [sic], savings plans, and profit sharing, would not apply to warehouse employees for the three year period There would be no increases in vacations, holidays or other benefits You would, however, have to join the union and pay dues When the terms of the union contract became known to our employees, there were many expres- sions of dissatisfaction and concern Now Roll & Hold is being asked to sign an agreement with the union and we are not sure that the union deal is what the employees really want We doubt that the union even represents a majority or our employees in view of the complaints about the unions negotia- tions that have been directed at us As a result, we decided to conduct a secret ballot poll of our employees to determine the truth as to whether the union represents a majority of you If it does not, then the law does not require us to agree to the terms of the union contract and the three year freeze [Emphasis added ] ° "Outcry" referred to information received that employees were dis- satisfied with the contract that Union had negotiated Robbms testified There was a handshake agreement and the reports I got were ac- cording to the union, it was ratified by the people On the other hand from the people we were heanng all lands of charges about it, It was a kangaroo court, we didn't know what we were voting on, and no where near the total employ was even at the union hall AREA TRANSPORTATION CO 755 You are free to vote as you wish Neither the company nor the Union can harm you in any way based on your vote Therefore, please take the ballot on the next page Mark the ballot for what you want and place it in the ballot box When all the votes are in, we will count them and let you know the results Of the 20 persons who voted, 16 marked their ballots for, "THE UNION DOES NOT REPRESENT ME AND I DO NOT WANT THE COMPANY TO AGREE TO THE TERMS OF THE THREE YEAR CONTRACT", 4 marked their ballots, "I WANT THE UNION AND THE DEAL IT NEGOTIATED" Robbins testified The purpose of the poll was to determine for me if our work force, which had drastically changed in character, if they wanted the union to represent them On December 15, 1988, the day following, the Re- spondent distributed the following memorandum to em- ployees TO ALL ROLL & HOLD WAREHOUSE EM- PLOYEES BASED ON THE RESULTS OF THE POLL HELD YESTERDAY, IT IS VERY CLEAR, BY A VOTE OF 16 TO 4, THAT THE MAJORITY DOES NOT WANT THE STEELWORKER'S UNION THEREFOR, THE COMPANY WILL NOW BEGIN THE PROCESS OF REINSTI- TUTING THE BENEFITS PREVIOUSLY EN- JOYED BY OUR PEOPLE, INCLUDING MERIT REVIEWS AND MERIT INCREASES Merit reviews and merit increases were reinstituted after December 15, 1988 Employees also received a De- cember 16, 1988 bonus based on profits A similar bonus had been granted previously About the third week in January 1989, Supervisor Joe Meldonato called the day shift together and said that Robbins wanted to form "some sort of committee with one man from each shift" that would function as follows Joe Meldonato said that what we are going to have here is a little deal where if you have a problem you can come to someone on your shift If you are on days, or afternoons, or midnights, or whatever You can talk to that person on your shift And if you have a problem you can work it out with him and he will come to me, or whatever If you are still not satisfied you can go over my head however high as you want to go Lorenzo Shark was chosen for the first shift B Conclusions and Reasons Therefor The Respondent's claim that there was no meeting of the minds or an agreement reached between the Re- spondent and the Union is at odds with the credited evi- dence in this case, as well as with the Respondent's own representation to its employees "We are Informed that our warehouse employees unanimously accepted the Steel Workers' Union Contract We are obliged by law to put the agreements into a written contract and will do so" I find that the Respondent's offer of the "hand-shake" agreement, which the parties understood to be composed of the draft agreement (G C Exh 31), and the health benefits plan (G C Exh 22), became a le- gally binding agreement when accepted by the Union Accordingly, the Respondent violated Section 8(a)(1) and (5) and Section 8(d) of the Act by repudiating the agreement and refusing and failing to execute it on the Union's request Since the Respondent was legally required to continue its recognition of the Union during the existence of the agreement, its withdrawal of recogmtion of the Union was in violation of Section 8(a)(5) of the Act In Hajoca Corp, 291 NLRB 104, 105 (1988), it was said (refemng to the trrebuttable presumption following a certification) There is a similarly irrebuttable presumption of the union's majority status during the term of a collec- tive-bargaining agreement See also Hexton Furniture Go, 111 NLRB 342 (1955) In the case of Standard Roofing Go, 290 NLRB 193 (1988), the Board recently opined Under Section 8(d) of the Act, an employer and a union must "meet at reasonable times and confer in good faith with respect to wages, hours, and terms and conditions of employment but such obligation does not compel either party to agree to a proposal or require the making of a concession" NLRB v Reed & Pnnce Mfg Go, 305 F 2d 131, 134 (1st Cir 1953), cert denied 346 U S 887 (1953) In the course of bargaimng "[a] party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree" Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) In assessing the lawfulness of a party's con- duct m bargaining, the Board's inquiry is whether, based on the context of the party's total conduct, it was seeking to frustrate agreement to a contract or lawfully engaging in hard bargaining to negotiate a contract that it considers desirable The Board additionally has written, Hotel Roanoke, 293 NLRB 182, 185 (1989) Nor does the fact that the parties eventually reached an agreement persuade us that the Re- spondent was bargaining in good faith See also Commercial Candy Vending Division, 294 NLRB 908 (1989) The credited evidence m this case discloses that the Respondent, prior to the "hand-shake" agreement, hewed to the line even though it stood on a 3-year wage freeze Whether the Respondent's intransigence in this respect constituted hard bargaining or an attempt to frus- 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trate agreement was never focused on or tested by the Union since the Union accepted the Respondent's last offer, which included the 3-year wage freeze Indeed, the Respondent's representatives were shocked at the Union's action, which suggests that the Respondent was not ready at that time to finalize the agreement Whether such circumstance also meant that the Employer was raismg the wage-freeze Issue as a means of prolonging negotiations beyond the certification year or was follow- ing its pnor announced bargammg strategy, i e, Let me tell you what would really happen if the Union got here 1 We will negotiate long and hard Don't be fooled into believing negotiations would be over quickly We will bargain in good faith but we will be tough negotiators' We will bargain over every word and sentence proposed by the Union We have had to bargain with a Union twice before at two other of our companies In both cases, no contract was reached and the union walked away remains conjectural However, it is certain that after the acceptance of the Respondent's 3-year wage freeze, the Respondent commenced laying groundwork to support a refusal to execute the agreement Although the Respond- ent admitted it was obligated to sign the agreement, the Respondent, nevertheless, immediately advised its em- ployees of the reasons why they ought to have rejected the agreement, such as, what the Union was losing if the agreement went into effect, i e, the Company's savings and pension plan and the profit-sharing plan, and what the Union did not obtain for the employees, i e, no wage mcrease for 3 years and no increase in holidays, vaca- tions, overtime pay, or shift differentials for 3 years Although in its October 17, 1988 letter the Respondent wrote employees, "The Union also msisted that all of you must jom the Union and pay dues," it wrote em- ployees 3 days later, on October 20, 1988, "The law gives you the right to jom a Union or not to jom a Umon " The Respondent also advised its employees at the same time that they had "the nght to accept or reject the Union's terms,"7 and "to revoke Union Authoriza- tion cards" Additionally, the Respondent suggested that the employees "Petition the Steelworkers' Union" if they did not agree with the Union's contract Thus, while it is difficult to place a fmger on any unfair tactics used by the Respondent prior to the consummation of the "hand- shake" agreement, thereafter, the Respondent embarked, as noted above, on a course to justify its withdrawal of recognition of the Union and its avoidance of the execu- tion of the contract Its efforts in this regard culminated in the pollmg of its employees ostensively to test its em- ployees' union affection But it did not elicit solely whether the employees wanted to reject the Union, but polled whether they "want[ed] the company to agree to the terms of the three-year contract" Response to such a ballot possesses little validity in registering the employ- 7 This was a misleading statement since at that time there had been a meeting of the minds and the contract had become effective ees' desire for or against union representation Moreover, it is also significant that the Respondent was requestmg the employees to approve its own desire not to execute a contract with the Union As noted, it was unlawful for the Respondent to refuse to execute the agreement and it was unlawful for the Re- spondent to withdraw recognition from the Union "absent unusual circumstances" Hajoca Corp, supra at 105 In such case the Board has stated An employer's polling of its employees concern- ing their union sympathies and support is permissi- ble in certain situations See generally Struksnes Construction Co, 165 NLRB 1062 (1967) One such situation may occur when the poll is conducted to verify the minority status of an incumbent union The Board's established prerequisites for the lawful polling of employees in this situation is that the em- ployer have a reasonable doubt of the union's majority status based on objective considerations that would be sufficient for a lawful withdrawal of recognition See, e g, Thomas Industries, 255 NLRB 646, 647 (1981), Montgomery Ward di Co, 210 NLRB 717 (1974) [Emphasis added ] The Respondent's observed employee dissatisfaction with the Union's negotiated contract (which the Re- spondent encouraged) is neither an unusual circumstance nor can it be deemed an objective consideration that would allow for the Respondent's lawful withdrawal of union recogmtion during the period of a binding agree- ment 8 Thus the Respondent's polling of its employees was unlawful and in violation of Section 8(a)(1) of the Act The Respondent's admitted reinstitution of the merit wage increase system and 1988 bonuses was unlawful be- cause they were unilateral changes in working conditions and thus violated Section 8(a)(1) and (5) of the Act Likewise the Respondent's unilateral implementation of an internal grievance procedure committee to resolve problems and disputes with unit employees was in viola- tion of Section 8(a)(1) and (5) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The following unit constitutes an appropriate unit for the purpose of collective bargaining withm the mean- ing of Section 9(b) of the Act All warehouse employees, including those em- ployed by Roll & Hold Division, Area Transporta- tion Co, Inc , and Davis Co, Inc , currently locat- ed at 2nd Avenue and Mississippi, Gary, Indiana, excluding drivers, professional employees, office 8 Because of the irrebuttable presumption, I deem the defense of objec- tive considerations to be immaterial AREA TRANSPORTATION CO 757 personnel, guards and supervisors, as defined in the Act, as amended 4 The Union has been at all times material the exclu- sive representative of the employees in the aforesaid ap- propriate unit for the purposes of collective bargammg within the meaning of Section 9(a) of the Act 5 By unlawfully failing and refusing to execute a writ- ten contract embodying the terms and conditions of the agreement reached with the Union, the Respondent en- gaged in unfair labor practices in violation of Section 8(a)(1) and (5) and Section 8(d) of the Act 6 By unilaterally, and without notice to the Union, changing existing terms and conditions of employment as set forth in the agreement, Respondent violated Section 8(d) of the Act 7 By polling its employees to determine whether a majority of them wanted the Union to represent them and whether they wanted to agree to the terms of the 3- year contract negotiated by the Respondent and the Umon, the Respondent violated Section 8(a)(1) of the Act 8 By withdrawing recognition from and refusing to recognize and bargain with the Union, the Respondent violated Section 8(a)(5) and (1) of the Act 9 The above violations of the Act are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act REMEDY It is recommended that the Respondent cease and desist from its unfair labor practices and take certain af- firmative action deemed' necessary to effectuate the pur- poses of the Act It is further recommended that the Re- spondent sign the collective-bargaining agreement marked General Counsel's Exhibit 31, a part of which is General Counsel's Exhibit 22, that it give effect to such written contract retroactively to October 14, 1988, that it continue the contract in effect for its 3-year term, and that it make whole its employees for any loss of wages or other employment benefits they may have suffered as a result of the Respondent's failure to sign the contract, plus interest The loss of earnings and any interest under the recommended Order shall be computed in the manner set forth in F W Woolworth Go, 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987) Additionally the Respondent shall continue in effect any and all benefits it has given its employees since Oc- tober 14, 1988 On these fmdmgs, of fact and conclusions, of law and on the entire record, I issue the following recommend- ed9 9 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 ORDER The Respondent, Roll & Hold Division, Area Trans- portation Co, Inc , Gary, Indiana, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to execute the collective-bar- gaining agreement agreed to by the Respondent and the Union (b) Changing terms and conditions of employment set forth in the collective-bargaining agreement during the term of the agreement without the consent of the Union (c) Unilaterally, and without notice to the Union, changing terms and conditions of employment (d) Polling its employees to ascertain whether they want to continue to be represented by the Union or whether they want the Respondent to agree to the col- lective-bargaining agreement negotiated by the Respond- ent and the Union during the period that said contract is binding on the parties (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Forthwith sign the collective-bargaining agreement referred to in the remedy and recognize and bargain col- lectively with the Union during the term of the agree- ment (b) On the execution of the aforesaid agreement, give retroactive effect to the provisions, and make whole its employees for any losses they may have suffered by reason of the Respondent's failure to sign the agreement in the manner set forth in the remedy section, continue in effect any and all benefits that it has given employees since October 14, 1988, and otherwise comply with the remedy (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 Gary, Indiana establishment copies of the attached notice marked "Appendix " 1° Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material 10 If this Order is enforced by a judgment of a Umted 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 Umted States Court of Appeals Enforcing an Order of the National Labor Relations Board" 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 IT IS FURTHER RECOMMENDED that the second amend- days from the date of this Order what steps the Re- ed complaint be dismissed msofar as it alleges violations spondent has taken to comply of the Act other than those found in this decision" il I have examined the other contentions of the parties and find them to be without merit