TIMBERS, Circuit Judge.

Nathan Yorke, Trustee in Bankruptcy of the Seeburg Corporation (Company), petitions for review of an order of the National Labor Relations Board, 259 N.L.R.B. 819 (1981), finding that the Trustee violated §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(5), 158(a)(1) (1976), by failing to bargain over the effects of his decision to close the Company's plant in Chicago. The Board has filed a cross-application to enforce its order.

Without giving Local 743, International Brotherhood of Teamsters (Union), prior notice or affording it a subsequent opportunity to bargain, the Trustee terminated operations and discharged the seven remaining employees who were Union members. The Board determined that a bargaining order by itself would not remedy the unfair labor practice since the plant closure had decimated the Union's bargaining strength. Accordingly, to restore the Union's position, the Board ordered a limited backpay remedy, requiring the Trustee to pay wages to the seven employees for a period beginning five days after the date of the Board's decision until (1) the parties reached an agreement, or (2) the parties reached an impasse, or (3) the Union failed to request bargaining within five days after the decision, or (4) the Union failed to bargain in good faith. While the backpay requirement was conditioned on the number of days elapsing before the parties reached impasse or an agreement, the Board imposed a minimum two week backpay period to discourage artificially quick impasse.

Although we are not in complete accord with the Board's reasoning, we conclude that substantial evidence supports the Board's findings of violations of §§ 8(a)(5) and 8(a)(1). We enforce the Board's remedial order with the condition specified herein.

I.

The Company, a Delaware Corporation, was engaged in the manufacture of juke boxes and other machinery at its facility in Chicago. In November 1977, it entered into a three-year collective bargaining agreement with the Union with respect to a unit of "all plant clerical, and all production and maintenance employees of the Company". As of July 1979, Seeburg employed approximately 385 employees. Shortly thereafter, the Company experienced severe financial reversals. It began laying off employees. The Union did not challenge the propriety of the layoffs.

On November 1, 1979, the Company filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101-1174 (Supp.III 1979). At the time, the Company still employed 150 members of the bargaining unit. The Company as debtor-in-possession continued its operations on a diminishing basis. It continually reduced its complement of employees, reaching a low of seven in early 1980. Because of allegations of fraud and mismanagement, the bankruptcy court appointed Nathan Yorke as Trustee in Bankruptcy for the debtor company on February 4, 1980. As Trustee, Yorke assumed full control of the Company. His duties primarily were to evaluate Seeburg's assets and formulate a plan of reorganization which would be acceptable to all creditors. 11 U.S.C. § 1106(a) (Supp.III 1979).

Yorke first visited the plant on the day of his appointment, February 4. He found no unit employees working in the production area. Seven unit employees, however, remained on the Company payroll. The ALJ credited Yorke's testimony that he did not know that the employees belonged to a union.

At the first creditors' meeting on February 8, Yorke learned that the Company owed its employees more than the $5000 it had in the bank and that its $6,000,000 in unliquidated assets (worth approximately $1,500,000 if liquidated) were eclipsed by overall liabilities exceeding $8,000,000. Following the meeting, Yorke decided that it was in the Company's best interest to terminate operations completely. He immediately applied to the bankruptcy court for authorization. The court granted the application on February 11. Yorke closed the plant the next day. Yorke obtained $6000 in funds from Seeburg's cash on hand to pay the employees for the period through February 9. He admittedly did not notify the Union of his decision to terminate operations.

By a letter dated February 15, the Union, through its attorney Edwin H. Benn, requested bargaining over the effects of the plant closure. In pertinent part, the letter read as follows:

"Gentlemen:

The undersigned represents Local 743 I.B.T. The Union has a collective bargaining agreement covering the employees of Seeburg Corporation. As you are well aware, this agreement governs the wages, hours and working conditions of those employees.

It is apparent to the undersigned that the rights of these employees are being seriously undermined. It has come to our attention that numerous employees whom we represent are being transferred to do work for different companies within your corporate structure and that work, covered by our contract, is being performed elsewhere. It has also come to our attention that the remaining employees of Seeburg Corp. have been locked out as of February 11, 1980. . . .

. . . This is also to demand that an immediate meeting be set up so that we can discuss the decision and effects that your action has on our bargaining unit employees. . . .

. . . [W]hat were the reasons that the Seeburg employees were denied the ability to come to work on February 11, 1980. Will they be transferred to other payrolls of either Choice Vend, XCor or any other companies under those companies' control? What has happened to the Seeburg supervisory personnel? Have they been transferred to either Choice Vend, XCor or any companies under those companies' control?

Third, are you aware of any prospective purchasers of the Seeburg Corporation? If so, please identify their names and addresses. If a sale or other disposition of the Seeburg Corporation is contemplated, please inform us what will happen to the existing facility, such as the property, fixtures, machinery, trucks, furniture, etc.? In particular, we would desire to know if there will be a sale or transfer to other companies within the XCor Corporation. If there will be an acquisition by another XCor Corporation company, we would like to know the intentions of XCor concerning future employment of the managerial, supervisory, or other nonunion employees who have been working for Seeburg. This would also include any transfer of employees to Choice Vend. Further, we would desire to know what will happen to existing accounts receivable and payable, existing lease agreements or contracts, other existing liabilities as well as good will. We would further desire to know the disposition of any existing commitments to customers or creditors. We are particularly interested in knowing what will be the disposition of work done by Seeburg employees covered by our collective bargaining agreement. Will that work be transferred to any other entity within the XCor Corporation or Choice Vend?

Please be advised that we expect our collective bargaining agreement to be abided by and we expect a response to this letter by close of business February 22, 1980. Failure to answer this letter by the time indicated will necessitate the institution of the proper proceeding."

Yorke responded to this letter on February 25, stating:

"I am in receipt of your letter dated February 15, 1980. Please be advised that the undersigned was appointed Trustee on February 4, 1980. Be further advised that the Trustee discontinued the operation of the business and has no employees.

In reply to your questions, Excor is a publicly owned company. Consolidated Entertainment owns all the stock of the Seeburg Corporation. I do not know who owns Choice Vend. I do not know if Choice Vend or Excor have any collective bargaining agreements with labor organizations.

If there is any further information you desire, I will be happy to furnish same."

The Union interpreted Yorke's letter as a refusal to bargain and consequently filed an unfair labor practice complaint on February 28, alleging that the Trustee had committed various unfair labor practices, including failing to bargain in good faith. No discussions between the Trustee and the Union ensued.

In April, Yorke informed the Union that the Company planned to recall several employees to assist in selling parts as authorized by the bankruptcy court. Ultimately, three bargaining unit employees worked at the plant for the next three to four months. The General Counsel filed a complaint in June, alleging that the Trustee's failure to give notice that he was terminating operations and his subsequent failure to bargain over the effects of that decision constituted violations of §§ 8(a)(5) and 8(a)(1) of the Act.

Within the month following the filing of the General Counsel's complaint, the Trustee located a potential purchaser for the remaining assets of the Company. Creditors agreed to the Trustee's plan of liquidation in July. The bankruptcy court approved the plan on July 28. At that time, the court also ruled that the Board's backpay claim on behalf of the employees, pending the unfair labor practice proceeding, was an administrative expense entitled to priority under the Bankruptcy Code. After negotiations between the Board, the Trustee, and the prospective purchaser of the Seeburg assets, the purchaser agreed to set aside $49,000 of assets and $6000 of its own money to cover the backpay claim in the event the Company ultimately should be found liable.

Upon concluding the unfair labor practice hearing in February 1981, the ALJ determined that the Trustee had committed the violations as charged. As a consequence, the ALJ recommended issuing a bargaining order. The Board adopted the ALJ's findings but found that a bargaining order by itself was insufficient to remedy the violations. Consequently, the Board imposed a sliding backpay requirement upon the Trustee in accordance with its decision in Transmarine Navigation Corp., 170 N.L.R.B. 389 (1968). This was to strengthen the Union's bargaining position to a point approximating the one the Union enjoyed at the time the Trustee closed the plant.

The Trustee petitions to review and set aside the Board's order. The Board has filed a cross-application to enforce its order. The Union as intervenor has filed a brief urging that the Board's order be enforced.

II.

We start with the proposition that a Trustee in Bankruptcy, like any other employer, must abide by the labor laws, as long as they prescribe conduct consistent with the duties imposed by the Bankruptcy Code. Local Joint Executive Board v. Hotel Circle, Inc., 613 F.2d 210, 215 (9th Cir. 1980) (duty to bargain continues); Shopmen's Local No. 455 v. Kevin Steel Products, Inc., 519 F.2d 698, 704 (2nd Cir. 1975) ("obligation to comply with the Labor Act [continues]); NLRB v. Bachelder, 120 F.2d 574, 576 (7th Cir.) (duty to bargain and honor employees' rights to self-organization), cert. denied, 314 U.S. 647 (1941). Cf. In re Bildisco, 682 F.2d 72, 82-83 (3rd Cir. 1982) (while debtor-in-possession may reject collective bargaining agreement as executory contract, "it may be required to recognize and bargain with the union"), cert. granted, 51 U.S.L.W. 3525 (U.S. Jan. 18, 1983) (No. 82-818).

The law in question — the duty to bargain over the effects of a decision to terminate operations — strikes us as critical to protect employees from the ravages of economic dislocation. NLRB v. Royal Plating Publishing Co., 350 F.2d 191, 196 (3rd Cir. 1965); NLRB v. Adams Dairy, Inc., 350 F.2d 108, 115 (8th Cir. 1965), cert. denied, 382 U.S. 1011 (1966); Burgmeyer Bros., Inc., 254 N.L.R.B. 1027, 1028 (1981). So-called "effects" bargaining provides the Union with an opportunity to bargain in the employees' interest for such benefits as severance pay, payments into the pension fund, preferential hiring if the employer continues operating at other plants, and reference letters with respect to other jobs. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 681-82 (1981). We therefore must determine whether imposing a duty upon the Trustee here to bargain over the effects of a decision to terminate operations is consonant with the Trustee's functions under the Bankruptcy Code.

We believe that recognizing a duty to bargain would not unduly impede the Trustee's discharge of his responsibilities. To protect creditors, the Trustee must administer the debtor corporation, 11 U.S.C. § 704(1) (Supp.III 1979), and thereby take responsibility for "the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case." 11 U.S.C. § 503(b)(1)(A) (Supp.III 1979). Since the obligation to bargain arises only with the Trustee's decision to terminate operations in the overall interests of the creditors, the costs concomitant with that decision properly can be attributed to the Trustee's efforts to "preserve the estate" on the creditors' behalf. As the bankruptcy court here determined, therefore, costs stemming from "effects" bargaining can be considered administrative expenses and thus fall within the ambit of the Trustee's authority. Cf. Reading Co. v. Brown, 391 U.S. 471, 482-84 (1968) (those injured during administration of estate by Trustee entitled to priority claim as administrative expense); In re W.T. Grant Co., 620 F.2d 319 (2nd Cir.) (severance payments to employees entitled to priority as administrative expense), cert. denied, 446 U.S. 983 (1980). But cf. In re Mammoth Mart, Inc., 536 F.2d 950, 955 (1st Cir. 1976) (claim for severance pay based upon services rendered before bankruptcy not an administrative expense). While the Trustee's discretion might be constrained by his need for authorization from the bankruptcy court, that limitation can be taken into account in any bargaining. With these considerations in mind, we must determine whether the Trustee's failure to bargain in this case violated §§ 8(a)(5) and 8(a)(1) of the Act.

The Board predicated its § 8(a)(5) conclusion on two findings: first, that the Trustee failed to notify the Union of his decision and, second, that he failed to bargain in the aftermath of the closure. While we disagree with the Board's first ground, we are satisfied that the second ground is sufficient to support a conclusion of failure to bargain.

The Trustee does not dispute that he failed to notify the Union before shutting down the plant. In essence he pleads extenuating circumstances: that he neither knew of the Union's existence, nor had time in any event to notify or bargain before implementing his decision. Irrespective of whether he knew or should have known of the Union's existence, we agree that the emergency situation with which he was confronted excused his obligation to notify the Union before closure. The bankruptcy court appointed Yorke trustee on February 4 as the result of allegations that the former management had grossly mismanaged the Company's dwindling assets. On the same day, Yorke visited the plant and saw no employees at work. Soon thereafter, he discovered that the Company did not have the funds to meet the payroll and learned of the Company's overall financial straits. Surely, the Trustee's responsibilities dictated immediate action. The Union could not reasonably be expected to benefit from several days notice before the Trustee's decision went into effect. Indeed, previous Board decisions have recognized that an employer has no duty to notify a union prior to closing in an "emergency" situation. Kingwood Mining Co., 210 N.L.R.B. 844, 844-45 (1974) (grave economic crisis precipitated management decision to terminate mining operations and excused notice); National Terminal Baking Corp., 190 N.L.R.B. 465, 466 (1970) (emergency situation precipitated by theft of Company's two delivery trucks which made continuation of the enterprise impractical). We hold that the Board's implicit conclusion that the Trustee was not faced with an emergency is not supported by substantial evidence.

The Trustee's failure to bargain after the closure about the effects of his decision stands on a different footing. Once operations had been terminated, the emergency situation ended. Three days after the plant shutdown, the Union addressed a letter to Yorke demanding bargaining about the effects on the employees. The letter informed the Trustee that unless he responded within a week, the Union would press charges. The Trustee's subsequent response was equivocal. Although he ignored the request for bargaining, he concluded the letter with the sentence, "If there is any further information you desire, I will be happy to furnish same." The Board reasonably could conclude that Yorke's evasive response when confronted by the Union's clear demand for bargaining constituted a failure to bargain in good faith. The Trustee's continued failure to submit to bargaining in the weeks following closure — even when he decided to recall several employees — bolsters the Board's conclusion. Therefore, while we have held that prior notice was not necessary, we hold that the Trustee's failure to accede to the Union's request for bargaining violated §§ 8(a)(5) and 8(a)(1) of the Act.

III.

This brings us to the propriety of the Board's choice of remedy.

The Trustee strenuously objects to imposition of the type of limited backpay order formulated in Transmarine Navigation Corp., 170 N.L.R.B. 389 (1968). He argues that the order should be set aside as impermissibly punitive under § 10(c) of the Act, 29 U.S.C. § 160(c) (1976), both because the limited backpay order in general is unjustified in the bankruptcy context and because the minimum two weeks of backpay ordered by the Board exacts too great a cash concession from the Trustee. The Transmarine type order issued by the Board requires the Trustee to pay the seven employees their normal daily wage from five days after the Board's decision until an agreement or impasse over effects bargaining is reached, as long as the total is not less than an amount equivalent to two weeks pay and not greater than an amount the employees would have received had they worked until the time they found alternative employment. Since we believe that the Trustee misconceives the nature of the remedy, we enforce the Board's order.

The Trustee first contends that the Transmarine remedy in any form is unwarranted in the bankruptcy context. He argues that once a company is bankrupt, there can be no meaningful bargaining — in other words, if the Company has no assets, it cannot make concessions. Arguably, a union in that situation has no bargaining power because the services of its employee members no longer are required. The Supreme Court in Republic Steel Corp. v. NLRB, 311 U.S. 7, 9-13 (1940), emphasized that, while the Board is given wide leeway in fashioning remedies, the remedy chosen must "achieve the remedial objectives which the Act sets forth," id. at 12, and must not punish the employer for its violations. Under Transmarine, however, the bankrupt employer may be forced to pay more than he would have even if bargaining had taken place and the conditional backpay remedy in those situations would be punitive.

The Trustee's argument here, however, that the conditional backpay requirement is unwarranted under all circumstances is belied by the facts of this case. Although the Company was bankrupt, at the time of closure it still had approximately $6,000,000 worth of unliquidated assets. Furthermore, the Company later found it necessary to recall three bargaining unit employees to help liquidate the Company. While the Trustee may have been required to obtain the bankruptcy court's authorization before granting concessions, the Trustee could have bargained subject to that approval. The Board reasonably could conclude that, had the Trustee bargained in February and March, the Union would have had some leverage in obtaining concessions. The purpose of the limited backpay requirement in such circumstances is not to punish, but to create an incentive for the Company to bargain in good faith. Ensuring meaningful bargaining comports with the primary objective of the Act. Morrison Cafeterias Consolidated, Inc. v. NLRB, 431 F.2d 254, 258 (8th Cir. 1970). We therefore hold that the Board's choice of the limited backpay remedy in the instant case was well within the broad remedial discretion granted by the Act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189-200 (1941).

Although we find it a close question, we believe that requiring a minimum of two weeks backpay likewise serves to effectuate the remedial purpose of the Act. We recognize that the ability of the Trustee to make cash concessions at the time of closure was limited, and we are aware that the Union already has enjoyed some of the benefit it could have hoped to attain from bargaining — the recall of three unit employees to assist in the liquidation. Nevertheless, three years after the plant shutdown, the Union can hardly hope to attain the same benefits from bargaining that might have helped ease the employees' transition into a new line of work had bargaining taken place immediately upon closure. The Board's adjustment takes into account the changed circumstances since the closing, and two weeks of backpay for seven employees represents an insubstantial amount in comparison to the assets that the Company then held. Moreover, the minimum pay period may well discourage premature impasse in the bargaining that is to ensue. We therefore conclude that imposing the minimum backpay period is not punitive and falls within the discretion granted the Board.

We find, however, that we must comment on one aspect of the future compliance proceeding. The Board claims that the Trustee's continued refusal to bargain after the Board issued its order has expanded his liability well beyond the two week period. The Board reasons that, since the Trustee could have bargained immediately after the decision and thereby have minimized his monetary obligations, he now must be saddled with the full $55,000 liability set aside by the bankruptcy court. We find the Board's argument unpersuasive.

To evaluate the Board's argument, we turn for guidance to the analogy found in an employer's refusal to bargain with a newly certified union to obtain review of the Board's certification decision. In ExCell-O Corp., 185 N.L.R.B. 107 (1970), enforced sub nom. I.U.E. v. NLRB, 449 F.2d 1058 (D.C. Cir. 1971), the Board held that it would not order an employer to make employees whole for the time period during which the employer refused to bargain with the Union after certification. Since a refusal to bargain is the only statutory method available for an employer to challenge the Board's certification, the Board concluded that "where the wrong in refusing to bargain is, at most, a debatable question, though ultimately found a wrong, the imposition of a large financial obligation on such a respondent may come close to a form of punishment for having elected to pursue a representation question . . . to the courts." Id. at 109. Reviewing courts have approved the Board's policy decision that "make whole" orders should be issued only when the employer has no "debatable" defense for its refusal to bargain. NLRB v. Food Store Employees Local 347 (Heck's Inc.), 417 U.S. 1 (1974); United Steelworkers v. NLRB, 430 F.2d 519, 522 (D.C. Cir. 1970) (Board warranted in refusing to grant such a remedy when the employer "desired only to obtain an authoritative determination of the validity of the Board's decision."). The Board consistently has declined to issue make whole remedies unless the employer's defense for refusing to bargain is patently frivolous. Heck's Inc., 215 N.L.R.B. 765, 768 (1974).

We find such reasoning to have equal force in the instant case. Refusing to bargain was the only means available to the Trustee to challenge what he considered an erroneous decision. Computing the sliding backpay requirement from the date of the Board's decision in our view imposes too harsh a condition on the employer's ability to obtain judicial review under § 10(f) of the Act, 29 U.S.C. § 160(f) (1976). The Board has asserted no claim that the Trustee's refusal to bargain was other than "debatable." Indeed, until today's decision in the instant case, we know of no case in which an appellate court has addressed the Trustee's duty to bargain about the effects of his decision to terminate operations. We therefore hold that the Board cannot penalize the employer for challenging a Transmarine order in good faith by imposing monetary liability retroactively to its refusal to bargain after the Board's decision. The Transmarine period therefore commences from the date of this opinion.

Our ruling that the Transmarine order cannot be computed retroactively may conceivably give employers an incentive to disobey Board orders until review can be obtained. Nevertheless, while we eschew such dilatoriness, delay to some extent is built into the structure of the Act. Moreover, if the employer can proffer no "debatable" defense for its refusal to comply with the Board's Transmarine order, then liability may be computed from the date of the Board decision.

To summarize: we hold that substantial evidence supports the Board's finding of violations of §§ 8(a)(5) and 8(a)(1); in that respect we deny the Trustee's petition to review and to set aside the Board order, and we grant the Board's cross-application to enforce. Our enforcement of the Board's order, however, is conditioned upon its computation of the Transmarine backpay period from the date of this opinion.

No costs.

MODIFIED AND, AS MODIFIED, ENFORCED.