The Pipe Line Development Co.

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Pipe Line Development Company and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica. Cases 8-CA-15329 and 8-CA-16233 18 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 February 1984 Administrative Law Judge John H West issued the attached decision The General Counsel and the Respondent filed excep- tions and supporting briefs The Charging Party filed cross-exceptions and a supporting 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, cross-exceptions, and briefs and has decided to affirm the Judge's rul- ings, findings,' and conclusions only to the extent consistent with this Decision and Order Upon a charge filed on 6 November 1981, the General Counsel issued a complaint in Case 8-CA- 15329 on 24 December 1981 The complaint alleges that the Respondent had violated Section 8(a)(5) and (1) of the Act in various respects On 19 May 1982, a settlement agreement in that case was ap- proved by the Regional Director 2 On 3 November 1982, the Union filed charges of bad-faith bargain- ing against the Respondent in Case 8-CA-16233 Subsequently, the settlement agreement was vacat- ed, the charges in Case 8-CA-15329 were reinstat- ed, and a consolidated complaint in the two cases, described above, was issued With respect to the complaint in Case 8-CA- 16233, the judge found that the Respondent violat- ed Section 8(a)(5) and (1) when, on the resumption of negotiations in September 1982, it failed to bar- gain in good faith by reneging on proposals to which the parties had previously agreed, by an- nouncing to the Union it was free to bargain "anew," and by, on 21 October 1982, withdrawing recognition of the Union as the exclusive represent- ative of its unit employees In light of these find- ings, the judge also concluded that the settlement ' The Respondent has excepted to some of the judge s credibility find ings The Board's established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Union was certified on 12 December 1980 The settlement agree ment provided, Inter aim, that the Union s certification year be extended for a period of 5 months from 19 May 1982 the date of the settlement agreement, until 19 October 1982 agreement in Case 8-CA-15329 had been properly set aside and, accordingly, found that the Respond- ent had violated the Act as alleged in the com- plaint in that case The Respondent has filed excep- tions to these findings We find that the Respond- ent did not violate the Act as alleged in Case 8- CA-16233, and we shall therefore reinstate the set- tlement agreement in Case 8-CA-15329 The pertinent facts are fully set forth in the judge's decision In summary, subsequent to the May 1982 settlement, the Respondent and the Union resumed negotiations on 30 September 1982, pursuant to the Union's request of 14 September There had been a hiatus of more than a year in ne- gotiations At this meeting, the Respondent's repre- sentative advised the Union that certain changes in the Respondent's operations, including plant relo- cation and consolidation, and changes in manage- ment, personnel, and employees' hours of work, ne- cessitated review and possible modification of con- tractual proposals to which the parties had agreed in the spring of 1981 Notwithstanding the Union's protest, the parties proceeded to discuss the no- strike clause, the discrimination and cooperation clauses, the union representation clause, the new/probationary employee clause, the hours of work and overtime clause, and the grievance/- arbitration clause The no-strike, discrimination, and cooperation clauses, which were not affected by the changes in operations, required no modifica- tion and were quickly reviewed However, the Re- spondent sought to renegotiate the overtime, pro- bationary employees, representation, and griev- ance/arbitration clauses 3 The parties did not reach agreement on these matters On 7 October, the par- ties met again and at this time initialed the no- strike, cooperation, and discrimination clauses Fol- lowing a dispute by the union representative as to the terms of the probationary employee clause and on his being informed that only 12 days (until 19 October) remained before the expiration of the Union's certification year, as extended by the set- tlement agreement, the union representative asked the Respondent to prepare a complete contract for the employees' consideration The meeting then ended By letter dated 11 October 1982, the Re- 3 With respect to the representation clause, the Respondent proposed that one steward be elected from each of the first two shifts, rather than from all three shifts, in contrast to the spring 1981 proposal, which pro vided for the election of a steward from each of the two then existing shifts It also proposed that an employee be required to have a year s se moray before becoming eligible to serve as a union committeeman or steward in contrast to no prior seniority requirement With respect to the hours and overtime clause, the Respondent sought mandatory rather than voluntary overtime The Respondent also sought to modify the proba tionary employee clause by proposing a 90 day, rather than a 45 day, probationary term Finally, the Respondent sought unspecified changes in the grievance/arbitration clause 272 NLRB No 3 PIPE LINE DEVELOPMENT CO 49 spondent's representative notified the Union that a final contract was being prepared Between 18 and 21 October 1982, the employees presented the Re- spondent with a petition signed by a majority of unit employees which indicated that they no longer wished to be represented by the Union The Union's certification year expired 19 October 1982 By letter dated 21 October 1982, the Respondent informed the Union that it had withdrawn recogni- tion Based on credited testimony, the judge found that the parties had agreed that proposals discussed and agreed to during the negotiations of the spring of 1981 were complete and thus binding on subse- quent negotiations Accordingly, the judge found that the Respondent reneged on its prior agree- ments by attempting to renegotiate certain initialed clauses during the September-October 1982 negoti- ations The judge further found that there was no justification for the "extensive, regressive modifica- tions Respondent proposed" The judge also found that the Respondent's insistence on review of all clauses, including clauses such as the discrimination and cooperation clauses, which were clearly not af- fected by changes in the Respondent's operations, evidenced an intent to frustrate and delay bargain- ing He further found that the Respondent's with- drawal of recognition on 21 October was unlawful Contrary to the judge, we do not find that a pre- ponderance of the evidence supports a finding that the Respondent failed to bargain in good faith during the September-October 1982 negotiations We note that, although Section 8(d) of the Act re- quires an employer to meet at reasonable times and confer in good faith with respect to wages, hours, and conditions of employment, such obligation does not compel either party to agree to a proposal or to make a concession In determining whether a party has negotiated in good faith, it is necessary to scrutinize the totality of its conduct If an employ- er's conduct demonstrates that it sought to avoid an agreement, then that employer has violated the Act If, on the other hand, the employer has used its economic power to seek a lawful contract which it considers desirable, there is no violation In O'Malley Lumber Co, 234 NLRB 1171, 1179- 80 (1978), the Board stated "While a company's change of negotiating posture may be evidence of bad faith, the total circumstances must be consid- ered Where an employer's economic power in- creases through the successful weathering of a strike, it is not unlawful for the employer to use its new-found strength to secure contract terms that it deems beneficial" In the instant case, the record shows that follow- ing unsuccessful contract negotiations in the spring of 1981, employees engaged in an economic strike which began on 18 May 1981 and lasted until 13 July at which time most employees returned to work More than a year passed before the parties resumed negotiations in September 1982 During this period of time, there had also been substantial changes in the Respondent's operations, including plant relocation and consolidation, and changes in personnel, management, and employees' hours of work (from two 10-hour shifts to three 8-hour shifts) Thus, the record shows that when the par- ties resumed negotiations in the fall of 1982, the Respondent, having weathered a strike action, not only stood in a stronger bargaining position than it had previously, but also had experienced a number of organizational and operational changes At the 30 September 1982 negotiation session, the Re- spondent sought review of all proposals previously negotiated during the spring of 1981 In support of its position, the Respondent pointed out that changes in its operations had affected the terms of these proposals and that it was necessary to re- negotiate certain of these proposals in order to ac- commodate the Respondent's changed circum- stances In light of these changed circumstances, includ- ing the unsuccessful strike action, we find that the Respondent's request to review and modify previ- ously negotiated proposals did not constitute bad- faith bargaining, the Respondent, having weathered a strike, was free to use its stronger bargaining po- sition to obtain contractual terms it considered more desirable Further, modifications sought by the Respondent were, for the most part, related to changes in its operations With respect to the pro- posals actually affected by these changes, we do not find the Respondent's proposed modifications regressive, as none of the proposals advanced were of such a nature as to warrant the conclusion that they were intended to frustrate meaningful bargain- ing With respect to the review of the discrimina- tion and cooperation clauses, although we find that these clauses were not affected by changes in the Respondent's operations, we nonetheless note that the record shows that review of these proposals took only a few minutes Thus, we find, contrary to the judge, that the Respondent's insistence on review of these proposals does not support an in- ference of an intent to frustrate and delay negotia- tions In light of the above, we find that the Re- spondent did not engage in bad-faith bargaining in September-October 1982, and shall dismiss the per- tinent portions of the complaint in Case 8-CA- 16233 In light of our dismissal of the foregoing 8(a)(5) and (1) allegations, we find that the Respondent's 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt of a petition signed by a majority of unit employees, following expiration of the extended certification year, provided the objective consider- ations necessary to support a good-faith doubt of the Union's majority status and warranted the Re- spondent's withdrawal of recognition Having found that the Respondent committed no unfair labor practices after the settlement agreement was approved on 18 May 1982, we find that the settle- ment agreement was improperly set aside and will be reinstated We therefore find it unnecessary to address the allegations of the complaint in Case 8- CA-15329, which we dismiss, pertaining to presett- lement agreement conduct Accordingly, we shall order that the consolidated complaint be dismissed in its entirety ORDER The complaint is dismissed and the settlement agreement in Case 8-CA-15329 is reinstated DECISION STATEMENT OF THE CASE JOHN H WEST, Administrative Law Judge Upon a charge filed November 6, 1981 (amended December 21, 1981), against the Pipe Line Development Company (Re- spondent), by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Union), a complaint was issued December 24, 1981, in Case 8-CA-15329 On May 19, 1982, a settle- ment agreement was approved by the Regional Director of the National Labor Relations Board (Board) A charge was filed November 3, 1982, against Respondent by the Union in Case 8-CA-16233 Subsequently, the above-described approval was withdrawn, the settlement agreement was vacated, the charge in Case 8-CA-15329 was reinstated and a consolidated complaint in the two above-described cases was issued on February 18, 1983 The consolidated complaint alleges that Respondent vio- lated Section 8(a)(1) and (5) of the National Labor Rela- tions Act by (1) refusing to process grievances since July 15, 1981, notwithstanding that it agreed to and imple- mented an arbitration grievance procedure with the Union on March 10, 1981, (2) circumventing the Union and dealing directly with its employees on July 17, 1981, by presenting the terms of a collective-bargaining agree- ment to them and conducting an employee ratification meeting, (3) unilaterally implementing the collective-bar- gaining agreement on July 29, 1981, (4) refusing on Sep- tember 28, 1981, to bargain with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, (5) reneging on September 30, 1982, on earlier agreed-to clauses about probationary employees, union representation, voluntary overtime, and grievance arbitration, (6) announcing to the Union on September 30, 1982, that Respondent was free to bargain from scratch, and (7) withdrawing its rec- ognition of the Union on October 21, 1982 Respondent denies the allegations A hearing was held in Cleveland, Ohio, on June 1 and 2 and July 21 and 22, 1983 On the entire record in this case, including my observation of the demeanor of the witnesses and consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent, an Ohio corporation with its principal place of business in Cleveland, Ohio, manufactures steel pipe repair fittings The complaint alleges, Respondent admits, and I find that at all times material herein Re- spondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Union has been a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Facts Late in the fall of 1979 the Union lost an election to Respondent One year later the Union won an election and on December 12, 1980, a Certification of Representa- tive was issued by the Board describing a unit of Re- spondent's production and maintenance employees at its two facilities, namely, Columbus Road, Cleveland, Ohio, and Canterbury Road, Westlake, Ohio The employees, approximately 80, met to elect a bargaining committee Employee Eugene Holmes was chosen for the committee and also made temporary chief shop steward Negotiations commenced January 22, 1981 The Union was represented by Edward Martoncik who is an Inter- national representative Holmes, along with committee- men Mack Damron and Jerry Tuck, who was the stew- ard at the Columbus Road facility, attended to advise on shop conditions and as to what the employees wanted Respondent's chief negotiator was its counsel herein, Donald Woodcock Assisting him were William Smerek, Respondent's controller and initially John Majka At the outset it was decided that language issues would be dealt with before getting to the economic issues such as wages Also, it was decided that the parties would both initial clauses that they had tentatively agreed on Mar- toncik testified that Woodcock said that "once we reached a tentative agreement, not to go back and keep hassling over something, that it would be a complete agreement for that issue" and that at first he, Martoncik, objected to initialing "because throughout the negotia- tions always something came up to make changes, but Woodcock's insistence was on initialing the agreement" Woodcock testified We agreed that we would initial off clauses as we went through on a tentative basis and that we would lay those aside as being understood, as we developed a complete contract, it might be neces- sary to revise some of the tentative agreements to reflect any changes in circumstances that might take place during the course of our negotiations or to dove-tail the language that we agreed to into subse- PIPE LINE DEVELOPMENT CO. 51 quent language proposals and agreements. One of the matters discussed at this first negotiation meet- ing was a grievance procedure. Negotiation meetings were held on January 29 and February 26, 1981. In a letter dated February 27, 1981, from Woodcock to Martoncik, General Counsel's Exhib- it 6, the former, as here pertinent, wrote: In accordance with preliminary agreements reached in negotiations February 26, enclosed is contract language for Union Representation and Grievance Procedure. It is our understanding that the initial provisions of those articles will commence effective March 2, 1981 and continue during the course of further negotiations. Please date and initial the extra copy of both articles enclosed and return them to me for my file. At the March 10, 1981 negotiation meeting Martoncik and Woodcock initialed the union representation clause and the grievance and arbitration procedure clauses. (G.C. Exhs. 7 and 8.) The latter was implemented During the March negotiation sessions Ronald Gardner, who at that time was Respondent's manager of engineer- ing and research and development, took Majka's place. On April 1, 1981, Martoncik was unable to attend a negotiation session and Holmes, who was the chief spokesman for the union committee, initialed the union committee seniority clause which was subsequently placed on the bulletin board for all employees to view, and the bulletin board posting clause. The former in- volved granting special consideration regarding seniority to members of the committee. Both were discussed at prior meetings which Martoncik attended. At the May 5, 1981 negotiation meeting, Martoncik and Woodcock initialed the new employees clause, which, as here pertinent, provides: New employees shall serve a probationary period of forty-five (45) calendar days before becoming permanent employees and covered by this Agree- ment. The Company shall have the right to extend the probationary period for up to fifteen (15) addi- tional calendar days with written notice to the em- ployee and mutual agreement with the Union. (G.C. Exh. 9.) At the May 12, 1981 negotiation meeting, Woodcock and Martoncik initialed the overtime clause which, as here pertinent, specified "[o]vertime shall be on a volun- tary basis." (C.P. Exh 3.) Between January 22 and May 14, 1981, clauses dealing with the following matters were also initialed: No discrimination, jury duty and witness pay, cooperation, bereavement pay, and leave of absence. After 14 negotiation meetings, Respondent's employees went on strike on May 18, 1981, because, in the words of Holmes, they wanted "to try to get the Company to move on a few issues and to try to get negotiations . . . to meet more often." Subsequent negotiation meetings were held at the Fed- eral Mediation and Conciliation Service (FMCS) where- as previously they were held at a Holiday Inn or Marri- ott. Martoncik testified that, as of late May 1981, the issues still open included hours of work, promotions, temporary transfers, checkoff, union shop, and all the economic issues. Regarding overtime, Respondent wanted it to apply to over 40 hours while the Union wanted it to apply to over 8 hours a day and over 40 hours a week. Between May 18 and July 9, 1981, approximately 15 negotiation meetings were held. Additional clauses were initialed. After leaving the meeting at FMCS on July 9, 1981, Holmes went to the picket line. It was decided that the employees would meet at the union hall the follow- ing day. At the union hall the next day the employees discussed returning to work. Martoncik and Warren Davis, regional director of region 2 of the Union, walked in on the employees' meeting. Davis told the employees that if they "wanted to go back to work, put your tail between your legs like a bunch of whipped dogs and go back if that is what you want." The employees met out- side the union hall and decided to return to work the fol- lowing Monday. Holmes telephoned Gardner who in turn telephoned Woodcock. It was decided that the em- ployees could return to work July 13, 1981. Most of the employees returned to work on July 13, 1981. Holmes telephoned Martoncik and advised him of this. Also, Martoncik was advised by Holmes that he, Tuck, and Damron return to work, and that he would not attend the next scheduled negotiation meeting on July 15, 1981. There were two meetings on July 15, 1981. At the first, which was held in the morning, Woodcock met with Edward Smith, who was at that time Respondent's president, along with Smerek and Gardner. While Smerek assisted in the formulation of contract proposals as a member of Respondent's negotiating committee, he testified that the proposal to withdraw arbitration was not his decision. Smerek heard the proposal for the first time at the above-described meeting. It was at this meet- ing that he, for the first time, heard of a 7-1/2-percent raise to employees retroactive to June 1, 1981. Gardner testified that he attended the above-described morning meeting where the topic was "[t]he final offer that the company would make, there [sic] last final offer they were going to present at that [the negotiating] meeting [held later]." Woodcock testified that it was decided that Respondent wanted to withdraw arbitration from the contract during a telephone conversation he had with Smith prior to July 15, 1981. Later on July 15, 1981, Woodcock, Gardner, and Smerek attended a negotiation meeting. Across the table sat Martonclk and Mike Kasperko, a service representa- tive of the Union. Woodcock began the meeting by asking Martoncik whether the Union was going to dis- claim intere:st in representing Respondent's employees. Woodcock then proposed a contract which would be retroactive to June 1, 1981, and expire in December 1981. The proposed contract was to include a 7.5-percent general wage increase, and arbitration would be eliminat- ed even though it was tentatively agreed to and imple- mented in March 1981 and grievances were processed under the procedure. Martoncik took notes on Respond- 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's proposals, advised Woodcock that the proposal was not acceptable, and asked Woodcock to write up the proposal and forward it. Smerek testified that after hear- ing Respondent's proposal, which was the first time Re- spondent made a complete contract proposal including wages, Martoncik said nothing about having It ratified by the members. Gardner testified that Woodcock told Mar- toncik that he, Woodcock, would prepare a contract which would include the clauses agreed to and "other issues that the company wanted in the contract with regard to open shop" Initially, Woodcock testified that on the way out of this meeting he told Gardner that: if we did not hear back from . . [Martoncik], it was . . . [Woodcock's] expectation that we would say that the Company was going to implement its last best offer. If there was no further request within a reasonable period of time by the Union to revise or otherwise change any of the proposal, that the Company's last best offer would then become the ground rules for future Pipeline Development Company. Subsequently, Woodcock testified that if he ever said that was Respondent's "best proposal, it was only as of that date"; that if the proposal had been rejected by the Union it was not his intention to implement it; and that he could have agreed to a final contract which included final and binding arbitration. The employees at both of Respondent's plants attend- ed meetings during their shifts on July 17, 1981, and they voted unanimously to accept the proposal Woodcock de- scribea to Martoncik on July 15, 1981. Woodcock testi- fied that on July 17 he was preparing the contract Before the meetings Holmes spoke with Martoncik, who indicated that he was waiting for Woodcock to forward the proposal Holmes testified that Martoncik asked him "what do the men want." Martoncik testified that he could not recall asking Holmes this, and that he did not tell Holmes to take a vote. While Holmes concedes that Martoncik did not tell him to take a vote, Holmes asserts that he thought that is what Martoncik meant. Since Holmes did not attend the July 15, 1981 negotiation meeting he did not know exactly what Respondent pro- posed at that time He "asked [Gardner] what the pro- posal was and that maybe I could get with the men and find out what they wanted." Initially Gardner testified that he did not recall that he initiated the above-de- scribed conversation with Holmes. When then confront- ed with testimony he gave in another proceeding on Sep- tember 28, 1981 (C.P.'s Exh. 1), namely, that on July 17, 1981, he spoke first to Holmes about Respondent's July 15, 1981 proposal. Gardner testified that he did not recall initiating this conversation. Gardner also testified herein that he did not recall suggesting to Holmes that he hold the meetings. At one point Gardner testified "[I]n our discussion that morning I mentioned what generally took place at [the July 15, 1981] meeting and [Holmes] thought maybe the membership ought to hear the last offer and have an opportunity to accept it or not." Before the meetings were held Woodcock was consulted. Gardner at one point testified herein that he believed that when he asked Woodcock whether the meetings could be held he advised Woodcock that a purpose of the meetings was to determine whether the employees would accept Respondent's proposal. Two meetings were held at Respondent's Westlake facility that day. Both were announced over the public address system with Gardner himself making the announcement for the second shift. All of the involved employees attended. Both meetings were held during working hours and the employees were paid for the approximately 20 minutes each meeting took. At each meeting Gardner explained Respondent's offer. Gardner had written materials for the second meeting. He took notes at both meetings. Gardner initially testified herein that he recalled telling the employees that the cost-of-living (COL) increase, the 7.5-percent raise, was part of the offer, but that he did not recall telling employees that receiving the COL in- crease was contingent on having a contract approved. In another proceeding, see Charging Party's Exhibit 1, Gardner testified that he told the employees that if there was a contract ratification, they would receive the COL Increase that had been withheld during negotiations on the contract One employee asked what would happen if the employees did not accept the contract. Gardner testi- fied that he replied: "that it wouldn't make that much difference one way or the other except the proposal, the last offer was going to be implemented after a certain period of time anyway if there wasn't any action taken on it." The voting was by a show of hands and Gardner tal- lied the vote. Holmes testified that while the employees did not have a copy of Respondent's July 15, 1981 pro- posal, they were kept advised "during the course of ne- gotiations what had been agreed." Smerek worked at Respondent's Columbus Road facil- ity. He testified that on July 17, 1981, Gardner advised him I hat Holmes wanted an employee meeting "for the purpose of ratifying the Company proposal"; that Gard- ner "said that he was going to consult with Mr. Wood- cock to see if that could be done"; and that on "that same day Tuck spoke with [Smerek] directly about having a ratification election." Smerek walked around the plant with Tuck as he told the employees about the meeting. While on September 28, 1981, Smerek testified that he "conducted a meeting at the Columbus Road fa- cility with Mr. Tuck," see Charging Party's Exhibit 1, he testified herein that he did not conduct the meeting be- cause he did not call it to order or arrange it. All of the employees attended. Smerek did not have a copy of Re- spondent's July 15, 1981 proposal and the employees were not given any written materials; but he "briefly ex- plained what the Company's last best offer was at the July 15th meeting." Included in the explanation was a reference to the retroactive 7.5-percent COL. Tuck told the other employees that the proposal was fair and he recommended that they vote to accept it. Tuck conduct- ed the vote which was done by a show of hands. Smerek was there and he saw all the employees raise their hands. The meeting, which lasted about 20 minutes, was held during working hours and the employees were paid during this period. PIPE LINE DEVELOPMENT CO 53 Woodcock testified that Gardner asked him on July 17, 1981, whether It was permissible to hold meetings for the purpose of explaining to employees Respondent's offer of July 15, 1981; that he advised Gardner that it should be done during nonwork time in the lunch area or some place appropriate for that type of thing; that later Gardner called and said that Holmes and Tuck held a vote and it was unanimous for acceptance of Respond- ent's proposal; that neither Gardner nor Smerek men- tioned in advance that the meeting was to be a ratifica- tion meeting; and that he first learned of a vote taken by a show of hands in the presence of Respondent's officials later that day. Holmes telephoned Martoncik and advised him that the employees accepted Respondent's proposal. With a cover letter dated July 22, 1981, Woodcock forwarded to Martoncik Respondent's proposal along with a strike settlement agreement. The letter, General Counsel's Exhibit 10, points out, inter alia, that the 6- month contract is retroactive to June 1, 1981, and that arbitration was withdrawn. It concludes with the follow- ing: "If I do not hear from you by close of business on July 29, 1981, I will presume that the agreement as pre- pared has been approved by you on behalf of the Union and its terms will be fully implemented." Martoncik did not reply to Woodcock's July 22, 1981 letter. As testified to by Smerek, Respondent's proposal was put into effect on July 29, 1981. In early August 1981, Martoncik was hospitalized for an aneurysm operation. He did not return to his union duties for 3 months. By letter dated August 20, 1981, General Counsel's Exhibit 27, Davis advised Woodcock that he was in re- ceipt of Woodcock's above-described July 22, 1981 letter, that Martoncik had surgery and was convalescing; that the Union was interested in negotiating a collective- bargaining agreement to conclusion, that negotiation meetings be postponed until Martoncik could brief Davis; that once this is done a meeting could be sched- uled; and that he would contact Woodcock as soon as possible to confirm a meeting date Woodcock did not deem it necessary to reply to this letter. A letter dated September 14, 1981, from Woodcock to Martoncik refers to the above-described July 22, 1981 Woodcock letter, and then goes on, in part, to state as follows: There having been no communication from you directly in response to that correspondence, the Company did in fact implement all the terms of the collective bargaining agreement. Company repre- sentatives were advised by employee-union repre- sentatives that the terms of the contract had been ratified by the members of the bargaining unit. Ac- cordingly, all terms and conditions of the Collective Bargaining Agreement between the Company and the Union, including recognition and duration pro- visions, have been in effect since July 29, 1981 not- withstanding the fact that the Company has yet to receive from you a final executed agreement. This is to advise you that, in accordance with the terms of Article XXXII, Duration, the Company desires to terminate the Collective Bargaining Agreement as of December 1, 1981. Should the Union desire to initiate negotiations for a new agreement for a period subsequent to December 1, 1981, please contact the undersigned. In the event that the Union does not desire to negotiate a new collective bargaining agreement for the period sub- sequent to December 1, 1981, or any negotiations in the interim do not result in an agreement for a suc- ceeding contract, the existing Collective Bargaining Agreement shall terminate December 1, 1981, nev- ertheless [G.C. Exh. 12.] While Martoncik did not see this letter until he returned to his union duties in November 1981, Woodcock for- warded a carbon copy to Davis. On September 14, 1981, Holmes filed a petition for de- certification with the Board in Case 8-RD-1042. (C P Exh. 2.) On September 28, 1981, 2 weeks later, a hearing was held by the Board on the petition. Davis and Woodcock engaged in a conversation before the hearing began. Re- garding this conversation, Davis testified that he asked Woodcock "'when are we going to get back to the bar- gaining table and negotiate a contract"; that Woodcock responded "never"; that he then said to Woodcock that the Union wanted to negotiate a complete contract; that, in reply, Woodcock said, "No way, we doubt that you represent the majority of employees there"; that he told Woodcock "I think we do"; and that Woodcock re- sponded "No way." On cross-examination it was brought Out that Davis had not talked to Martoncik between August and November 1981, and that on September 28, 1981, he knew nothing about the status of negotiations. With respect to this conversation, Woodcock testified that he asked Davis, "What is it you guys want. Why don't we have the election and find out what the em- ployees want"; that Davis said, "We want to get a con- tract"; that he said, "I think we already have one"; that he did not i ecall any further conversation relating to ne- gotiations; and that Davis did not request bargaining. At pages 37 and 38 of the transcript of the decertifica- tion petition hearing, Charging Party's Exhibit 1, the fol- lowing appears: MR. SGAMBATI: Mr. Hearing Officer, there was a request as recently as today before this hearing began Mr. Woodcock said that the Company would not negotiate with the Union. MR. WOODCOCK: Objection. On October 5, 1981, Davis forwarded the following letter to Woodcock: This is to confirm our conversation at the NLRB offices on September 28, 1981, prior to the start of the hearing conducted in the above captioned matter. At that time, I requested that you and I meet for the purpose of resuming collective bar- gaining negotiations toward a contract covering em- 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees which the UAW represents at the Pipeline Development Company You denied my request. I regret that you have seen fit to decline my invita- tion to engage in further collective bargaining. I strongly urge you to reconsider your position in this matter Please advise me of your intentions at your earli- est convenience Your failure to do so can only be viewed as a patent violation of your duty to bargain in good faith with the duly certified collective bar- gaining representative of Pipeline Development em- ployees. [G.C. Exh. 29.] The following day Woodcock replied as follows: This date I received your most enigmatic and perplexing letter dated October 5, 1981. I have read and reread that letter and have been unable to dis- cern the basis for the content, or ascertain any pur- pose for sending such a letter. In the first instance, I have no recollection of such a conversation as you allege to have taken place which your letter purports to confirm. Specif- ically, I have no recollection that, on September 28, 1981 at the offices of the National Labor Relations Board, you, on behalf of the UAW, requested any meeting for the purpose of resuming collective bar- gaining. Accordingly, no denial of such request was made. You may be assured that Pipe Line Develop- ment Company, and I as its representative for col- lective bargaining purposes, has fulfilled, and will continue to fulfill, all of its legal obligations vis-a-vis your Union The position of the Company, quite plainly stated, is that there is a final, complete, collective bargaining agreement in effect between your Union and the Company. A final, complete, collective bar- gaining agreement was submitted to Edward Mar- toncik, the chief negotiator for the UAW, July 22, 1981, inviting questions and comments Ratification meetings were conducted by members of the Union's Negotiating Committee, at which the Com- pany final contract proposal was accepted. The Company received no indication of any rejection of the terms and conditions of that contract. It has been fully implemented since July 29, 1981 On September 14 I wrote to Mr. Martoncik with a copy to you advising that the contract in effect would terminate by its terms on December 1. You were asked to respond to that letter and have not done so. I do not consider any conversation held at the NLRB offices to have been a proper response, nor do I consider your October 5, 1981 letter to be a response. If, as you have suggested, the Union de- sires to negotiate a successor collective bargaining agreement, please let me know. In the meantime, as you are aware, a decertifica- tion petition has been filed with the National Labor Relations Board which has created a question con- cerning representation It would seem proper for the National Labor Relations Board to rule on that question concerning representation. Any future ne- gotiations between your Union and the Pipe Line Development Company should be deferred until there has been a final decision reached by the Na- tional Labor Relations Board on whether to pro- ceed with a decertification election. [G.C. Exh. 28.] In his decision and order entered October 9, 1981, the Board's Regional Director for Region 8 dismissed the decertification petition because there was no exception to the 1-year certification rule in that the alleged contract was not executed since it was not signed by a certified bargaining representative of the Union and agreement had never been reached on all of its provisions. (G.C. Exh. 1(n) attachment Exh. A(11).) As noted above, a charge was filed November 6, 1981, in Case 8-CA-15329 (amended December 24, 1981), and a complaint was issued therein on December 24, 1981. By letter dated April 2, 1982 (G.C. Exh. 26), Wood- cock advised Martoncik that the grievances of George H. Cook and Sanetta Cunningham were denied Asser- tedly these terminations were justified. The letter goes on to state, in part, as follows. 3. In any event, the Company will not honor any grievance which is not properly processed in ac- cordance with the strict language of the Grievance Procedure, including strict adherence to appropriate time limitations. Moreover, the purpose of the Grievance Procedure and Arbitration agreement is to provide a method for resolution of complaints or disagreements regarding the application or interpre- t ation of a collective bargaining agreement between the parties and/or compliance with the provisions of any such agreement. Inasmuch as there is no Col- lective Bargaining Agreement in effect between the parties, it does not appear that any grievance can be valid under the terms of the previously agreed to Grievance Procedure and Arbitration unless and until a complete, final and executed Collective Bar- gaining Agreement is in effect. Accordingly, the final determination on the above- mentioned grievances is George H. Cook, Termination—Grievance No. DB-45102 GRIEVANCE DENIED Sanetta Cunningham, Termination—Grievance No. DB-45103 GRIEVANCE DENIED. As noted above, in May 1982, Respondent executed and entered into a settlement agreement which was ap- proved by the Board's Regional Director for Region 8. It was agreed by the parties that the certification year for the Union be extended for 5 months from the date of approval of the agreement, May 19, 1981; and that the Union could proceed to arbitration on four specified grievances (Lisaula, Beard, Cook, and Cunningham). As pertinent, the attached notice reads as follows: WE WILL NOT unlawfully and unilaterally change conditions of employment by unilaterally implementing the terms of a purported collective bargaining agreement effective by its terms from PIPE LINE DEVELOPMENT CO 55 June 1, 1981 to December 1, 1981. WE WILL NOT unlawfully refuse to process grievances under a grievance/arbitration procedure, through final and binding arbitration, which we agreed to with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America on or about March 10, 1981. WE WILL NOT cir- cumvent the Union and unlawfully deal directly with our employees by presenting the terms of a collective bargaining agreement to them and con- ducting employee ratification meetings. WE WILL NOT refuse to bargain with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, the duly certified representative of our employees in the appropriate unit described below. WE WILL, upon request, bargain with the Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America as the exclusive bargaining representative in a unit of: All production and maintenance employees, in- cluding tool room, shipping and receiving em- ployees, lead men, truck drivers and plant cleri- cals employed by the Employer at its facilities lo- cated at 1831 Columbus Road, Cleveland, Ohio and 870 Canterbury Road, Westlake, Ohio, but excluding all office clerical employees and pro- fessional employees, guards and supervisors as defined in the Act. And if an understanding is reached, embody such understanding in a signed agreement. [G.C. Exh. 2.] By letter dated June 4, 1982, Martoncik requested Woodcock to supply a complete seniority list of the members of the certified unit prior to restarting negotia- tions. General Counsel's Exhibit 13 The list was sup- plied with a cover letter dated June 18, 1982, General Counsel's Exhibit 14. By memorandum dated July 12, 1982, Respondent's Exhibit 16, Martoncik advised Davis as follows: As you are aware, we called a membership meet- ing of the Pipeline employees on Sunday, July 11, 1982. Joe Commella and I showed up, but not a single member attended. I need to talk to you about what our next move should be so that we could attract a new Interest in the Union at Pipeline. Martoncik testified that no employees came to other meetings. By letter dated August 30, 1982, Martoncik advised Woodcock that the Union was prepared to restart nego- tiations and requested him to reply regarding the time and place. General Counsel's Exhibit 15. In his reply to Martoncik, Woodcock in his letter dated August 31, 1982, General Counsel's Exhibit 16, stated, in part, as follows: Company representatives are available at reasonable times and places to meet with representatives of the Union to discuss and negotiate wages, hours and working conditions for employees within the unit the UAW was certified to represent in the election conducted in 1980. The passage of time and the ma- terial changes in company operations since last we met to discuss and negotiate a contract, will, of course, necessitate considerable deviation from any and all tentative agreements reached during the course of negotiations in the spring of 1981. Conse- quently, you should be prepared for full and com- plete discussion and negotiation of all issues relating to appropriate contract matters. Woodcock testified that the changes he referred to in- cluded turnover, changes in the operations structure of Respondent, the relocation of the Columbus Road facili- ty and incorporation into the Westlake facility, changes in the hours of work, changes in management in that (a) Edward Smith's brother Bill took over; (b) Gardner was elevated; and (c) that there were new supervisors, new manufacturing processes, new product, a change in the state of the economy as It affected Respondent, a change in the manner of Respondent's production, and a change in the work that was subcontracted and done in-house. According to Woodcock the union representation clause that had been initialed by March 1981 could not have been applied to the Company's operations as they existed in the fall of 1982 without modification because "the Cleveland plant was gone and Westlake had three shifts instead of two." With respect to the initialed over- time clause, Woodcock testified that the changes which occurred between the spring of 1981 and the fall of 1982 affected this clause in that while in the spring of 1981 there were two shifts and there was a great deal of over- time, in the fall of 1982 Respondent had three shifts and very little, if any, overtime. Regarding the grievance procedure clause, Woodcock testified that whereas in 1981 the parties were dealing with two separate facilities and making arrangements for people to move back and forth, this was no longer necessary. Also, how many stewards on what shifts and changes in supervisors' titles assertedly would have to be considered. On September 14, 1982, Martoncik held a meeting for members of the involved unit and none attended By letter dated September 16, 1982, Martoncik advised Woodcock that the Union was prepared to start negotia- tions. By reply letter dated September 17, 1982, Woodcock set the time and the place for a meeting on September 23, 1982. On September 23, 1982, Martoncik called Woodcock inquiring as to when Woodcock was going to answer Martoncik's September 16, 1982 letter. The September 23 meeting was rescheduled for September 30, 1982 At the meeting on September 30, 1982, attended by Martoncik, Kasperko, Woodcock, and Smerek, Wood- cock advised Martoncik that all clauses even though ten- tatively agreed to would have to be reviewed. Martoncik testified that Woodcock said that "we have to start anew"; that the initialed clauses were "only tentative, 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD things had changed [and] therefore, we have to negotiate a whole new agreement"; and that before he had a com- mittee (employees) to satisfy "and now there is no com- mittee here and I don't have to satisfy you." Regarding this meeting, Smerek testified that he did not recall Woodcock saying that the parties would have to negoti- ate an entire new agreement; that Martoncik and Wood- cock discussed selecting an arbitrator for the Lisaula case; that the discrimination clause and cooperation clause were reviewed just to determine if they were af- fected by the changes; that he did not recall Respondent reneging on any agreements on September 30, 1982; and that Respondent did not "go back on" its position re- garding probationary employees. Woodcock testified that Martoncik asked to arbitrate the Lisaula case and Wood- cock indicated that he would look at the list of arbitra- tors but that he did not believe that an arbitrator could issue a binding determination in the absence of a con- tract; that he advised Martoncik that it was necessary to go through [their] earlier negotiations article-by-article and determine to what extent if at all those prior agree- ments are appropriate." Wood testified: [Martoncik] asked him if he was going to renege on all of [his] prior positions and [he] said, "Ed, my po- sition is that there have been changes in circum- stances that necessitate a full review of all the prior language and that we can't simply sign up to lan- guage that is no longer appropriate and we do not intend to do so." That we would go through each clause, read it, determine whether or not it was ap- propriate If it was, we had no problem with it. If it was not, we would express our concern and we would make whatever changes and proposals were necessary to bring it into line with existing condi- tions. Woodcock testified that on September 30, 1982, Marton- cik agreed to the 90-day probationary period albeit he fought it earlier. Martoncik testified that he indicated to Woodcock on September 30, 1982, that he was willing to negotiate these changes clearly necessitated by the changes in Respondent's operation, that he did not agree with the 90-day probationary period; and that while the representation clause previously initialed had no mini- mum period a member had to work before being eligible to be a committeeman or steward, Respondent on Sep- tember 30, 1982, indicated it wanted there to be a 1-year minimum. The last negotiating meeting occurred on October 7, 1982. Present were Martoncik, Kasperko, Woodcock, and Smerek. Martoncik asked Woodcock if he were ready to pick an arbitrator and Woodcock answered that he did not have time to look at them. Three clauses were initialed, namely, those dealing with no strike, no dis- crimination, and cooperation. When Woodcock handed the clause dealing with probationary employees to Mar- toncik for initialing, he had an outburst. Subsequently Martoncik asked how much time was left on the certifi- cation and he was advised that it ended October 19, 1982 He then asked Woodcock to prepare a complete proposal of Respondent and forward it. Martoncik stated that he would present the proposal to the membership for their decision. Woodcock asked, "[W]hat if two people show up," to which Martoncik replied, "We will run our own meetings." Woodcock also asked Martoncik why he wanted a complete agreement to which Marton- cik replied that since Respondent reneged there was no sense in negotiating the clauses one by one. Regar ding this meeting, Smerek testified that the no- discrimination clause was discussed; that nothing changed in the plant requiring discussion of the no-dis- crimination clause; that he did not know if from Re- spondent's standpoint the parties had to negotiate an entire agreement; that Woodcock said the no-discrimina- tion clause had to be renegotiated; that the discussion of the no-discrimination clause took time; that the recogni- tion clause was renegotiated even though the parties agreed on it earlier; and that Martoncik proposed that the agreement have a term of 1 year. On October 11, 1982, Woodcock sent the following letter to Martoncik: In the course of our contract negotiations at the ses- sion on October 7, you determined, to my surprise and that of Pipe Line Management, to cut short any further meaningful discussions on contract language matters and requested that the Company provide to you a complete proposal for what you described as submission to union members for ratification. In fact, in our first negotiating session on September 30, I had advised you that many changes had oc- curred from July, 1981 to September, 1982 which necessitated very detailed discussion of what had previously been refined through negotiations in early 1981. The primary changes included: 1. Consolidation of Columbus Road operations into Westlake Plant operations currently being ef- fected 2. Change in plant operations from two shift, 10 hour days, to three consecutive shifts at the West- lake Plant. 3. Obvious and well-known changes in circum- stances including the state of the economy and its effect on the Company. Thus, it appeared to the Company that there was need for substantial discussion and explanation as to each article of a proposed contract to determine re- spective positions of the parties as that would relate to a final collective bargaining agreement. It is well known to you, I am sure, from your expe- rience as a labor negotiator, that all contract lan- guage proposals are tentative and subject to change during the course of negotiations to reflect the interrelationship of various articles upon each other and the contract as a whole. Moreover, final con- tract language can, and often does, have a substan- tial impact upon economic matters insofar as con- tract language may serve to affect plant efficiency, flexibility and productivity. Your request for a com- plete collective bargaining agreement at the present state of discussions completely exacerbates tradi- PIPE LINE DEVELOPMENT CO 57 tional contract negotiation principles and forces the Company into a strange and unforeseen posture All thoughts of Pipe Line Development Management had been that negotiations would proceed, through good faith bargaining, to a labor agreement accepta- ble to the Company, its employees and the Union by the exchange of proposals and ideas with appro- priate input from employees and the Union—not through resort to the expedient submission to union members of the company proposal alone with no prior discussion, explanation or negotiations Ac- cordingly, the Company considers your request for a complete proposal to submit to union members for ratification a failure on the part of the Union to ful- fill its statutory obligation to bargain in good faith with the Company It appears clear from your con- duct and statements made at the October 7 meeting that the Union is less concerned with bargaining in good faith to achieve an acceptable collective bar- gaining agreement than with the prospect that em- ployees of the Company will seek to decertify the Union That posture on the part of the Union is a total abdication of the legal responsibility of the Union to its members and the employees of the Company Nonetheless, since you have requested a complete proposal for your review, the management of Pipe Line Development Co is now in the process of re- vising its earlier proposals and tentative agreements with the Union to conform with existing circum- stances A complete language proposal reflecting the consolidation of the two plant operations into a single one plant, three shift operation, including ref- erence to all changes in circumstances, the econo- my, and the Union's obvious lack of interest in ef- fectively representing employees of Pipe Line De- velopment, is now in the process of being prepared and will be submitted to you in the near future The management of Pipe Line Development is now in the process of reviewing all relevant economic data, sales forecasts, relocation costs, plant improvement expenses, and related information, to arrive at a suit- able economic proposal assuming a collective bar- gaining agreement of some reasonable duration In the meantime, if you desire to meet and discuss con- tract language to fulfill your statutory duty to bar- gain in good faith, please call [G C Exh 20] In reply, Martoncik forwarded the following letter, as here pertinent, to Woodcock on October 18, 1982 The Union desires to meet and discuss fully all contract language if the Company is prepared The Union will fulfill its duty as a representative to bar- gain in good faith as long as the company and its representatives are willing to fulfill their obligation, so as to negotiate an agreement that may be accept- able to both parties The only reason I requested a complete proposal was that all of the contract language proposals which we agreed to tentatively were not acceptable to the Company Therefore, all I want to know is what the Company's position was on the tentative contract language we agreed to, but if the Company is not prepared to offer the Union a complete agree- ment, the Union is prepared to discuss each article of the proposed contract language separate [G C Exh 21] On October 21, 1982, Woodcock forwarded the fol- lowing letter, General Counsel's Exhibit 22, to Marton- cik Since our last meeting-indeed since our last ex- change of correspondence-the employees of Pipe Line Development Co have provided to manage- ment a petition advising that they do not desire to have the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) continue to represent them for collective bargaining purposes That petition, circu- lated and signed by what appears to be a majority of the present employees within the production and maintenance unit for which the UAW was certified as collective bargaining representative in the earlier representation case, bears the signatures of the vast majority of those employees Based in large measure on that petition, but also on a wide variety of other circumstances and objec- tive evidence of which you are aware, including your own failure in recent conversations to assert otherwise, it does not appear that the UAW at this time represents a majority of the employees of Pipe Line Development Co in a unit appropriate for col- lective bargaining purposes The management of the Company has directed that I inform you that it pos- sesses a good faith doubt that your Union represents a majority of its employees for purposes of collec- tive bargaining Accordingly, you are advised that Pipe Line Development Co will no longer recog- nize the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the collective bargaining repre- sentative for its employees unless and until the Union produces current probative evidence that a majority of the employees of Pipe Line Develop- ment Co within a unit appropriate for collective bargaining desires that Union to represent them In our telephone conversation this date, I com- municated to you receipt of the above-described pe- tition and you expressed a desire to peruse this peti- tion to verify its existence and authenticity Accord- ingly, enclosed is a Xerox copy for your use Inasmuch as it would be improper, and probably illegal as well, to pursue any further contract nego- tiations, this is to advise you that your Union will not be recognized for such purpose Attached were two sheets of signatures with the follow- ing typed at the top of the page "We, the following hourly employees, of Pipe Line Development Company declare that we no longer wish to be represented by the International Union (UAW) " 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodcock testified that the following were the basis for good-faith doubt that the Union continued to repre- sent a majority of the involved the Union won the elec- tion in December 1980 by only one or two votes, the precipitous return to work by all employees in July 1981 from the strike, the failure of the union committee to participate in negotiations thereafter with Martoncik, the complete absence of any activity by the Union at Re- spondent's facilities from the mid-December 1981 until the effort to resume bargaining in the summer of 1982, no one acted as steward or representative of the Union during that year, the decertification petition filed in the fall of 1981, at the negotiation on September 30 and Oc- tober 7, 1982, Martoncik was not accompanied by the employees on the bargaining committee, Martoncik made no representation that he had any familiarity with the current circumstances of Respondent, and the precipitous action of Martoncik on October 7, 1982 when [Hie made it clear to me that he was going to take any sort of contract that was proposed and agreed to That is, he would take whatever the Company presented to him in final form regardless of whether it had any significance to the Union, and provided that it gave the Union same contract for some period of time He would have that ratified at a meeting at which he represented he would not think more than two people would attend, if that As noted above, a charge was filed by the Union in Case 8-CA-16233 The Regional Director withdrew ap- proval of the settlement agreement, reinstated the charge in Case 8-CA-15329, and issued a consolidated com- plaint B Contentions On brief, the General Counsel contends that the key issue in this matter is whether Respondent was bound by its 1981 tentative agreements when it resumed bargaining with the Union during the extended certification year Assertedly Woodcock knew on September 30, 1982, that several more weeks of delay would in all likelihood result in a second decertification petition, and so he sought to frustrate the Union by making regressive pro- posals regarding those clauses dealing with grievance-ar- bitration, overtime, probationary period, and union stew- ards According to the General Counsel, the changed circumstances were relatively narrow in scope in that Respondent cites no such changes as the installation of new equipment or changes in its manufacturing processes which necessitated its withdrawal of earlier contract pro- posals Assertedly Respondent admits that its primary reason for downgrading its contract proposals was its perception that the Union had lost its strength It is con- tended that this change in circumstances, however, is di- rectly attributable to Respondent's own presettlement unfair labor practices, and consequently is an invalid excuse for withdrawing earlier contract proposals al- ready agreed to by both parties The General Counsel argues the fact that Respondent's earlier unfair labor practices may have prevented the consummation of a complete collective-bargaining agreement should not rob the Union of its earlier gains in the negotiation process It is contended by the General Counsel that if Respond- ent did not bargain in good faith on September 30, 1982, and thereafter, then it did not meet its obligations under the settlement agreement and the subsequent withdrawal of recognition is unlawful, and that the Board has found bad-faith bargaining where an employer has tried to modify proposals after substantial discussion and agree- ment Midvalley Steel Fabricators, 243 NLRB 516, 522 (1979) According to the General Counsel, since the Board has held that sizable gaps in a union's effort to negotiate a contract does not necessarily give rise to a good-faith doubt of the union's interest in representing its member- ship, Cobb Theatres, 260 NLRB 856 (1982), the lapse of time between Martoncik's June 1982 information request and his August 1982 demand for continued negotiations should not be a basis for permitting Respondent's with- drawal of recognition The employee petition presented to the Company in October 1982 assertedly is tainted by Respondent's unlawful withdrawal of previously agreed- to language on September 30, 1982 The General Coun- sel points out that the Board has held that, even though employee petitions may be signed by a majority of the employees, it is an insufficient basis for doubting the union's continuing majority status, where the employer has unlawfully refused to bargain United States Gypsum Co, 259 NLRB 1105 (1982) Allegedly further evidence of Respondent's deliberate plan to undermine the union representative status can be seen in Woodcock's July 15, 1981 proposal to make the contract terminate on the an- niversary date of the Union's certification, and such an inference has been explicitly approved in Huck Mfg Co v NLRB, 693 F 2d 1176 (5th Cir 1982) Regarding the alleged presettlement unlawful activity, it is contended by the General Counsel that direct deal- ing with employees described of the type described in this record is unlawful Hiney Printing Co, 262 NLRB 157 (1982), and that it was also unlawful for Respondent to have engaged in the ratification meetings because the designated bargaining representative, Martoncik, was not given any type of notice Jones Motor Go, 260 NLRB 97 (1982) The General Counsel points out that Respondent unilaterally implemented the terms of a collective-bar- gaining agreement effective by its terms from June 1 to December 1, 1981, that nowhere in the record is there any evidence that the parties had reached impasse on July 15, 1981, that there is no evidence that Martoncik or any other authorized union representative accepted the July 15 proposal as a contract, that no agreement was ever signed by both parties, and that Respondent not only implemented all of the agreed-on issues, save arbi- tration, on July 29, 1981, but it also cavalierly undertook to implement all of its proposals on open issues It is also argued by the General Counsel that as of July 29, 1981, the Union had four grievances in the arbitration pipeline, including the discharge grievance of a committeeman when Respondent eliminated arbitration as a feature of its employees' terms and conditions of employment, and that, therefore, after July 29, 1981, until the execution of the settlement agreement, it can be said that Respondent PIPE LINE DEVELOPMENT CO 59 refused to process grievances through the arbitration stage since it had presented the Union with the elimina- tion of arbitration as a fait accompli Regarding the al- leged September 28, 1981 refusal to bargain, namely, Woodcock's statement to Davis on the morning of the decertification hearing, the General Counsel points out that the issue is one of simple credibility, and during his testimony Davis appeared serious, truthful, and deliber- ate in his responses while Woodcock by contrast was "flip, evasive, and argumentative" Finally regarding the allegation that on September 30, 1982, Woodcock told Martoncik that Respondent was free to bargain from scratch, the General Counsel contends that the evidence clearly shows that Woodcock said they would have to begin negotiations "anew", that the Board has held that where an employer withdraws proposals tentatively agreed on by the union during negotiations for a new contract and substitutes earlier, regressive proposals, to the union on many subjects, it has then violated Section 8(a)(5) of the Act, Pittsburgh-Des Moines Steel Co, 253 NLRB 86 (1980), enf denied 663 F 2d 956 (9th Cir 1981), and that in the context of Woodcock's insistence on bargaining anew and his subsequent renegotiation of already agreed-on language, an unlawful intent to frus- trate bargaining can be discerned In addition to requesting that it be concluded that Re- spondent violated Section 8(a)(1) and (5) of the Act and that it be ordered that Respondent cease and desist from interfering with, restraining, or coercing its employees, and remedy the alleged unfair labor practices in the manner customary for cases involving violations of Sec- tion 8(a)(1) and (5) of the Act, it is also requested that Respondent be ordered to bargain with the Union as the exclusive bargaining representative for the employees in the production and maintenance unit for an additional period of 5 months Respondent, on brief, argues that it is well settled that an unfair labor practice case which has been resolved by settlement should not be reopened unless it is shown that the settlement was breached or unfair labor practices were committed after the settlement, and a finding that the settlement was not breached precludes and renders unnecessary every opening of the underlying unfair labor practice case Assertedly no unfair labor practices were committed subsequent to the May 19, 1982 settlement agreement and, therefore, Respondent should not be re- quired to defend the prior unfair labor practice charge which was resolved by that agreement It is contended that the Union's 11th hour allegations of unfair labor practices, which allegedly occurred 2 weeks prior to the end of its extended certification year, is a transparent at- tempt to use the Act to frustrate the wishes of the em- ployees and avoid the effects of the Union's obvious lack of employee support Regarding the allegations of the above-described consolidated complaint, Respondent contends that it did not renege on any previously agreed- to contract clauses since (a) both parties allegedly under- stood that the above procedure was simply a bookkeep- ing method designed to facilitate negotiations and that the clauses tentatively agreed to were not binding, but were subject to subsequent discussion, renegotiation, and modification, (b) three of the four clauses identified in the Union's consolidated complaint were the subject of continuing "discussion and modification" after the dates those clauses had allegedly been agreed to, and (c) in many instances, such subsequent "discussion and modifi- cation" were initiated by the Union Assertedly the only reason that the fourth clause, the new employees clause, was not the subject of subsequent discussion and modifi- cation was that it was not a very important term in the contract Also, it is alleged by Respondent that by De- cember 30, 1982, circumstances had so changed since the time those clauses had been tentatively agreed to that it was clearly appropriate and, in some cases, necessary to modify such clauses in light of the changed circum- stances Assertedly "the prior tentative agreement to make overtime voluntary was impacted by the change from a two 10-hour-shift operation (in which a mandato- ry 2-hour overtime was built into the system, causing the employees to resist additional overtime) to a three 8- hour-shift operation (in which no overtime was built into the system and resistance to mandatory overtime would, presumably, be reduced )" (R Br 21) The alleged changes included those in company operations and those in the economy were assertedly so pervasive that all of the clauses had to be reviewed in light thereof And fi- nally, regardless of whether the above-mentioned tenta- tively agreed-to clauses had to be modified in light of the intervening changed circumstances, it is contended by Respondent that by September 30, 1982, it had the legal right to withdraw from prior tentative agreements and was not bound to renew bargaining on the basis of clauses which had been discussed a year and a half ago Assertedly, a party may withdraw or revise prior pro- posals and tentative agreements which reflect that party's assessment of the impact of changed circumstances, and such withdrawal or revision does not constitute an unfair labor practice or bad-faith refusal to bargain It is con- tended by Respondent that [T]he position that, after one and a half years had passed, after the economy had fallen into recession, after the Company had drastically changed its mode of operations, and after the Union's bargaining strength had totally collapsed—after all those changes—the contention of the Company was bound by prior contract clauses which had been tentatively [agreed to] in the spring of 1981 is some- thing less than realistic [R Br 23 ] While Respondent argues that it never told the Union that it had to bargain from scratch, it contends that even if that statement had been made in the course of contract negotiations, it would not constitute an unfair labor prac- tice, because it was not communicated to the employees Respondent argues that the allegations that the Com- pany violated the Act by withdrawing recognition from the Union on October 21, 1982, is frivolous in light of the overwhelming evidence that existed at that time with regard to the Union's lack of majority support It is pointed out by Respondent that the Board has held that the filing of a decertification petition which raises a real question concerning representation automatically gives the employer reasonable grounds to doubt the union's 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority status, that unusual conduct by union represent- atives during negotiation sessions may raise good-faith doubts on the part of the employer concerning the union's majority representation, that evidence of an ad- mission by a union representative as to lack of majority status is an excellent ground for doubt, that prolonged inactivity on the part of the union is also a fact to be considered, and that statements of nonsupport by em- ployees are a significant factor whereupon which an em- ployee may legitimately rely to show lack of majority support Respondent argues that the evidence shows that the Union has no reasonable complaint to raise against Re- spondent with regard to its postsettlement conduct, that the Union delayed negotiations until the 11th hour in an attempt to generate renewed employee support, which the Union had lost prior to any alleged unfair labor prac- tice, and that, when that failed, the Union, having no time left for meaningful negotiations, told the Company to draw up an entire contract, for the obvious purpose of agreeing to anything in order to bar an election Respondent contends that even if Case 8-CA-15239 is reopened, the evidence shows that the charges therein made are without merit and that Respondent did not commit the alleged presettlement unfair labor practices since (1) Respondent did absolutely nothing on July 17, 1981, to circumvent the Union or to interfere with the Union's relationship with the employees in that the union stewards requested the meeting of employees on compa- ny premises and requested a representative of Respond- ent to inform the employees of the Company's final con- tract offer during the course of that meeting, and that the Company had no reason to believe that the union steward was not acting with the imprimatur of the union business agent since the business agent had clothed the steward with authority in previous dealings with the Company, had permitted the steward to chair a negotia- tion session in the business agent's absence, and had per- mitted the steward to process grievances on the Union's behalf, (2) Respondent acted lawfully when it unilateral- ly implemented the terms of its final offer on July 29, 1981, in that when it is clear that negotiations have reached a point where future negotiations would be meaningless, an employer is free, after presenting the Union with its last best offer, to unilaterally implement that offer even if it remains unaccepted by the Union, (3) Respondent did not agree to any binding grievance arbi- tration procedure with the Union and did not refuse to process grievances as alleged in that assertedly, by tenta- tively agreeing to the grievance-arbitration clause, Re- spondent did not bind itself in any way, and just as the Union was acting within its rights when it called the strike in May 1981, Respondent was acting within its rights when, after the strike had ended and the Union's strength had been dissipated, it presented the Union with a final contract offer which did not include arbitration, and that no evidence was produced at the hearing in this matter to show that Respondent ever refused to process grievances even though during the period between July 15, 1981, and May 18, 1982, Respondent did advise the Union that it had no duty to arbitrate grievances on the grounds that there was no binding arbitration agreement, and (4) Respondent did not refuse to bargain with the Union on September 28, 1981, in that Davis' testimony concerning the casual prehearing conversation he had with Woodcock is not credible because it is inconsistent with correspondence between the parties both before and after that hearing and, even if Davis' recollection of the conversation were true, any misunderstanding concern- ing the alleged refusal to bargain should have been cleared up by Woodcock's letter of October 6, 1981, in which he offered to meet for the purposes of bargaining C Analysis For the reasons stated below, it is my opinion that the General Counsel has proven each and every allegation of the above-described consolidated complaint, and that his request that Respondent be ordered to bargain with the Union for an additional 5 months should be granted A union is entitled to a period of at least 1 year from its certification for bargaining After 7 months of that period elapsed, Respondent engaged in a course of un- lawful conduct Respondent did not bargain in good faith in 1981 after the strikers returned to work, and notwith- standing the above-described May 1982 settlement agree- ment, Respondent did not bargain in good faith in 1982 The Union has yet to receive the full 1-year period to which it is entitled The Regional Director was correct to set aside the set- tlement agreement As pointed out in US Contractors v NLRB, 697 F 2d 692, 695 (5th Cir 1983) [A] settlement agreement is not an absolute bar to litigating presettlement activities Wallace Corp v NLRB, 323 U S 248, 254-55 (1944) In Wallace, the Supreme Court observed that "[the Board] has consistently gone behind [settle- ment] agreements were subsequent events have demonstrated that efforts at adjustments have failed to accomplish their purpose, or where there has been a subsequent unfair labor practice " This holding has been interpreted to mean that "a settle- ment agreement can be set aside and presettlement violations found, when there has been a breach of the agreement, or when there has been a subsequent independent violation of the Act by a party to the agreement Contrary to Woodcock's assertion, the tentatively agreed-to clauses were binding Martoncik and Wood- cock initialed them and they were dated At first Mar- toncik was unwilling to take this approach but he con- ceded Holmes testified that prior to July 17, 1981, the employees were kept advised "during the course of ne- gotiations what had been agreed" And, Respondent im- plemented the grievance/arbitration procedures These were not merely proposals Rather, the proposals or offers had been accepted and at least in one instance acted upon Subsequent negotiations in 1981 about the subject matter of some of the initia:ed clauses did not deal with a possible regressive modification of the clauses And the 1982 changed circumstances cited by Respondent should not have affected some of the ini- PIPE LINE DEVELOPMENT CO 61 tialed clauses which Respondent sought to modify (It is not even asserted that the probationary period, described by Respondent on brief as "not a very important term in the contract," was effected by the alleged changed cir- cumstances And as pointed out by Respondent on brief, it only presumed that the relocation would affect the voluntary overtime clause ) There was no justification for the extensive, regressive modifications proposed by Respondent in September 1982 The Union indicated its willingness to negotiate those changes clearly necessitat- ed by the changes in Respondent's operation Respond- ent, however, attempted to alter initialed clauses not to correct mistakes or add something , that was missing but rather to nullify concessions Respondent reneged on past agreements and in doing so violated the Act Mid- valley Steel Fabricators, 243 NLRB 516 (1979) Compare NLRB v Tomco Communications, 567 F 2d 871, 883 (9th Cir 1978) Also it violated the Act when it advised the Union in September 1982 that negotiations had to start "anew" While Woodcock denies advising the Union that it had to bargain from scratch, the testimony of Respondent's own witnesses indicates that is just what occurred Ne- gotiation time was used discussing the already initialed no-discrimination clause only to have Respondent dis- cover that indeed the alleged changed circumstances did not in fact necessitate modification of this already agreed-to clause The previously initialed cooperation clause was also subject to the same treatment with the same result To the extent changed circumstances might have necessitated the modification of some of the agreed- to language, this determination could have been made by Woodcock in advance of the September 30, 1982 negoti- ation session There was no need to belabor the obvious Woodcock's intent, however, was to frustrate and delay The message he conveyed to the Union was that even though Respondent had tentatively agreed to these clauses and it was not proposing to change them, Re- spondent was not going to give any weight to the fact that it initialed them Martoncik represented the designated bargaining rep- resentative Woodcock, in giving his background, dem- onstrated that he is or should be well versed in labor law At one point in his career he worked for the Board Woodcock knew or should have known that the consent of Martoncik should have been obtained prior to Re- spondent making direct contact with the employees re- garding the proposed agreement Without this consent, Respondent was inviting a charge of direct dealing Jones Motor, Co, 260 NLRB 97 (1982) Woodcock, however, was single-minded in purpose in that he wanted Marton- cik, when he received Respondent's proposal, to know that the employees had already ratified it It apparently was Woodcock's hope that this would force Martoncik to sign the contract which would have been effective for only a little over 4 more months Woodcock knew in ad- vance that the meetings were to be ratification meetings Woodcock is totally discredited for his canards are nei- ther few nor minor Martonctk did not ask for the ratifi- cation meetings Respondent called the meetings All em- ployees attended on company time and they were paid while attending the meetings In one plant the Compa- ny's public address system was used to summon employ- ees to the meetings, with Gardner himself making one of the announcements In the other, Smerek accompanied Tuck when he told employees to attend the meeting But for Smerek's presence would the employees have attend- ed on company time? Gardner and Smerek were present when the votes were taken and Gardner tallied them at his plant In my opinion, Gardner suggested the meetings to Holmes Gardner was not a credible witness His testi- mony herein conflicted with testimony given September 28, 1981, and his attempted explanations only served to highlight the conflicts Gardner would not have suggest- ed the meetings without first discussing it with Wood- cock Holmes did not impress me as being a credible wit- ness on this point These were not union meetings on company premises They were company meetings about union matters They involved direct dealing They were in violation of the Act Apparently Woodcock, on brief, settles, at least in his own mind, his shifting testimony as to whether Respond- ent's proposal of July 15, 1981, was its last best offer On brief he argues that Respondent had the right to unilater- ally implement that offer because negotiations had reached a point where future negotiations would be meaningless This is notwithstanding the fact that there had been no real negotiations over economic issues The parties did not reach impasse on July 15, 1981 Respond- ent's proposal was not adopted by the Union as a con- tract In unilaterally implementing it on July 29, 1981, Respondent violated the Act In my opinion, Woodcock's above-described April 2, 1982 letter was a refusal to process grievances under the procedure agreed and implemented in 1981 Again Re- spondent violated the Act As noted above, Woodcock was not a credible wit- ness His challenged testimony about his conversation with Davis on September 28, 1981, is not credited Davis impressed me as being a credible witness, his version is credited It is intet esting to note that Woodcock's above- described October 6, 1981 letter makes no mention of Sgambati's above-described record allegation of Septem- ber 28, 1981 On brief, Woodcock contends that even if Davis is credited, "any misunderstanding concerning the alleged refusal to bargain should have been cleared up by [Woodcock's] letter of October 6, 1981, in which he offered to meet for the purposes of bargaining" (R Br 37 and 38) What Woodcock fails to note on brief is that while Davis wanted to negotiate the initial contract in his October 6, 1981 letter, Woodcock was only willing to entertain a request to negotiate a "successor collective bargaining agreement," and even then Woodcock indi- cated that any future negotiations should be deferred until after the Board acted on the decertification petition Woodcock's September 28, 1981 unlawful refusal to bar- gain was not remedied by his October 6, 1981 letter Finally, the complaint alleges that by withdrawing its recognition on October 21, 1982, Respondent acted in bad faith and, therefore, failed and refused to bargain in good faith As pointed out in NLRB v Flex Plastics, 726 F 2d 272 (6th Cir 1984) "Section 8(a)(5) of the [Act] grants to the Union an irrebutable presumption of 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority status for one year following its certifica- tion After one year, the presumption of majority status becomes rebuttable" The course of conduct en- gaged in by Respondent precluded the Union from en- joying 1 full bargaining year free of challenge Here the presumption never became rebuttable In the instant case, the Union only enjoyed 7 months of the irrebuttable pre- sumption period 1 Once Respondent initiated its unlawful conduct, the period ceased Darter Concentrator Co, 253 NLRB 358 (1980), Glomac Plastics, 234 NLRB 1309 (1978), and Mar-Jac Poultry Co, 136 NLRB 785 (1962) CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act, and has at all times since December 12, 1980, been the representative for purposes of collective bargaining of a majority of the employees in the appropriate unit consisting of all production and maintenance employees, including tool room, shipping and receiving employees, leadmen, truckdrivers and plant clericals employed by the Employer at its facilities located at 1831 Columbus Road, Cleveland, Ohio, and 870 Canterbury Road, Westlake, Ohio but excluding all office clerical employees and professional employees, guards and supervisors as defined in the Act 2 ' That there was a delay in the Union requesting negotiations from the end of May to August 1982 does not in my opinion mean that this should be deducted from the 5 months remaining on the bargaining period since Respondent conducted Itself unlawfully before the settlement and since Respondent continued its course of Illegal conduct as soon as negotiations resumed In my opinion, Respondent demonstrated that its tactics would not have differed with an earlier request to restart negotia lions 2 The above described consolidated complaint issued herein on Febru ary 18 1983 alleged that this was an appropriate unit In its answer dated March 2 1983 Respondent denied these "averments for lack of 3 Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) of the Act by circumventing the Union on July 17, 1981, and dealing directly with its employees, by pre- senting the terms of a collective-bargaining agreement to them and conducting an employee ratification meeting, by unilaterally implementing on July 29, 1981, the terms of a collective-bargaining agreement, by refusing since July 15, 1981, to process grievances contrary to an agreement it entered into with the Union, by refusing on September 28, 1981, to bargain with the Union with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment, by reneging on September 30, 1982, on earlier agreed-to clauses, and by on October 21, 1981, withdrawing its recognition of the Union as the exclusive collective-bargaining repre- sentative of the employees in the above-described unit THE REMEDY I recommend that Respondent cease and desist from its unfair labor practices and post an appropriate notice In- asmuch as I have found that Respondent refused to bar- gain in good faith with the Union from July 1981 it will be recommended that Respondent be ordered to bargain for a period of 5 months during which a question of the Union's majority status cannot be raised [Recommended Order omitted from publication ] knowledge Smerek testified herein on June 2, 1983 (Tr 313) that presently there was no production activity taking place at the Colum bus Road facility of Respondent, that there were no production employ ees there, that Respondent did not presently operate a toolroom at Co lumbus Road and that there were no shipping and receiving, leadmen truckdrivers, or clericals at Columbus Road Apparently Respondent still owns the Columbus Road facility That along with its failure to make a definitive statement regarding its future Intent for this facility, in my opinion, precludes a finding that the unit description is not appropriate