Big Run Coal & Clay Co.

National Labor Relations Board - Board Decisions

Jun 4, 1965

152 N.L.R.B. 1144 (N.L.R.B. 1965)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where in either case an object thereof is to force or require Carl W. Reinhardt
or any other person as defined herein to cease doing business with K. E. Peterson,
Inc.
WE WILL NOT threaten, coerce, or restrain K. E. Peterson, Inc , or its subcon-
tractors, or any other person engaged in commerce or in an industry affecting
commerce who is at work within our territorial jurisdiction where an object
thereof is to force or require K. E. Peterson, Inc, or any other person as
described above to cease doing business with Ivan Kaufman.
ORANGE BELT DISTRICT COUNCIL OF PAINTERS No. 48, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional office, 849
South Broadway, Los Angeles, California, Telephone No 688-5204.
Big Run Coal & Clay Company and United Glass and Ceramic
Workers of North America, AFL-CIO. Case No. 9-CA-3225.
June 4,1965
DECISION AND ORDER
On March 12, 1965, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, and recom-
mending it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions, brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Big Run Coal & Clay Company, Lexington, Ken-
tucky, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.
152 NLRB No. 120.
BIG RUN COAL & CLAY COMPANY 1145
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 16 , 1964 , by United Glass and Ceramic Workers of
North America, AFL-CIO, herein called the Glass Workers, a complaint dated
July 24, 1964, was duly issued alleging that the Respondent , Big Run Coal & Clay
Company, herein called the Company , has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (1) and ( 5) and Section 2(6) and (7)
of the National Labor Relations Act, as amended , herein called the Act . Respond-
ent's answer to the complaint denies that has engaged in the alleged unfair labor
practices. A hearing in this proceeding was held before Trial Examiner Herbert
Silberman at Lexington , Kentucky, on October 21, 1964. Thereafter, briefs were
duly filed by General Counsel and by Respondent.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent , a Kentucky corporation , is engaged in the manufacture of bricks
at its plant located in Lexington , Kentucky . During the past year, which period is
representative of Respondent 's operations , in the course and conduct of its business,
Respondent sold and shipped from its Lexington , Kentucky , plant goods and prod-
ucts, valued in excess of $50,000, to places outside the State of Kentucky . Respond-
ent admits , and I find, that the Company is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Glass Workers is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Following an election conducted by the Board,1 on June 27, 1963, the Glass
Workers was certified as the exclusive collective-bargaining representative of employ-
ees of the Company in the following described unit:
All production and maintenance employees of the Employer, at its plant on
Stone Road in Lexington, Kentucky, excluding all office clerical employees and
all guards, professional employees, and supervisors as defined in the Act.
On July 8, 1963, William H. Poske, Jr., International representative of the Glass
Workers, wrote to C. A. Coleman, president of the Company, requesting a meeting
for the purpose of beginning collective-bargaining negotiations. The letter included
the following request•
The Union further requests that employees of your Company who have been
selected as wage committeemen and Local President be granted time off from
their duties for the purpose of these negotiations.
The Local referred to in the Glass Workers' letter is Lexington Local No. 425, a duly
organized affiliate of the Union, whose membership is limited to employees of the
Company.
There were nine bargaining sessions between the Glass Workers and the Company,
the first having been held on July 27, 1963, and the last on November 4, 1963. Poske
attended all nine sessions. In addition, three representatives of Local 425 attended
the first eight sessions . Poske described the Local's representatives, one of whom was
its president, as the wage committee. Poske explained the function and authority of
the wage committee to be as follows: "they were authorized [as a bargaining com-
mittee] from the Local Union's standpoint, but they were not a member of the nego-
tiating committee, as such. I was there as the sole bargaining agent, I had this
committee there with me, which we have in other negotiations for the purpose of
becoming acquainted with union activities, for the purpose of public relations and for
whatever information that they could give to me that I needed to bargain with. And
as for them being a part of the negotiating committee I would say no." Poske
further testified, also without contradiction, that there was no discussion with the
company representatives concerning the authority of the wage committee.
1 Case No. 9-RC-5438.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the first bargaining session the Glass Workers submitted to the Company a draft
of a proposed contract. The preamble to article I of this agreement reads as follows:
This Agreement is between Big Run Coal & Clay Company for its Lexington,
Kentucky plant, (hereinafter called the Company) and the United Glass and
Ceramic Workers of North America, AFL-CIO-CLC and Lexington Local No.
425, (hereinafter called the Union).
The identical preamble appears in all subsequent drafts of the proposed contract
between the Company and the Glass Workers, including the draft which was mailed
to the Company by the Glass Workers on December 31, 1963.
On November 4, 1963, the date of the last bargaining session, Poske appeared alone.
Although asked, Poske declined to explain the absence of the wage committee and
advised the company representatives that he was present "as the sole bargaining agent
and was prepared to consummate an agreement." Poske testified that the company
representatives were willing to continue negotiations in the absence of the wage com-
mittee but both Coleman and Caldwell (the Company's attorney) made it very plain
that any understandings reached would have to be ratified by the membership of
Local 425 before the Company would sign the contract. Although Poske did not
agree to this condition, the parties continued their negotiations and arrived at an
understanding regarding all the substantive terms of a collective-bargaining agreement.
The terms of the agreement reached between Poske and the company representatives
on November 4 were modified in a minor respect on November 6 during a telephone
conversation between Poske and Caldwell.
Concerning the reason for the absence of the wage committee from the Novem-
ber 4 bargaining session, Poske testified: "Prior to the negotiating session on No-
vember 4th, I had received correspondence from various members of the Local Union
stating and setting forth that they no longer wanted to have a Union and no longer
wanted me to bargain for them. . .
On November 5, 1963, Attorney Caldwell mailed to Poske a draft of a contract
reflecting the agreements reached at the November 4 meeting. In his letter of trans-
mittal Caldwell advised that "it was and is the Company's position that we should
not enter into a contract covering the employees of our plant, who compose the certi-
fied bargaining unit, without their knowledge and approval. This is especially advis-
able in view of the reports now coming to us indicating that a majority of the employ-
ees may have withdrawn from the Union and that, at this time, you may not actually
have a majority of the bargaining unit. Under these circumstances, the Management
is willing to execute the contract provided it has been presented to the membership
of the bargaining unit and approved by them."
On December 31, 1963, Poske mailed to the Company a revised draft of the agree-
ment, which was received January 2, 1964. The contract conforms in all respects
with the earlier draft prepared by Caldwell except only for the inclusion of the change
which was agreed to on November 6 and except that the signature page does not call
for execution by Local 425 whereas the draft submitted by Caldwell calls for the
signatures of the president and secretary of Lexington Local No. 425. Article XX of
the contract, which relates to the term of the agreement, does not show the date on
which the agreement becomes effective nor the date of its expiration, although it con-
tains a conventional 60-day automatic renewal provision. However, at the hearing,
the parties stipulated that the understanding between the Company and the Glass
Workers was that the agreement was to be effective for a period of 1 year from the
date of its execution. Therefore, giving effect to this understanding, the draft pre-
pared by the Glass Workers represents a complete contract embodying all the agree-
ments reached between the Company and the Glass Workers. The copies of the
contract mailed to the Company on December 31, had been executed by the Glass
Workers and Poske's letter of transmittal requested the Company to sign and return
three copies of the instrument.
On January 7, 1964, Attorney Caldwell wrote to Poske reaffirming the Company's
position as expressed in his letter of November 5, 1963, and returning the contracts
unsigned. C. A. Coleman, president of the Company, testified that the absence of
ratification by its employees and the absence of any signature by Local No. 425 were
the only reasons that the Company refused to sign the agreement.
The factors relied upon by the Company furnish no lawful justification for its
refusal to execute the contract mailed to it on December 31, 1963. (Said draft of
agreement is hereinafter referred to as the "Contract.") The Act imposes upon an
employer the duty to bargain collectively with the duly designated representative of
his employees and, if requested, to execute a written contract incorporating the terms
of any agreement reached? Absent unusual circumstances, where the designation of
2 Section 8(d). See H. J. Heinz Company v. N.L.R.B., 311 U.S. 514.
BIG RUN COAL & CLAY COMPANY 1147
representatives was evidenced by the results of an election conducted by the Board,
this duty to bargain continues for at least 1 year from the date of the Board's certifica-
tion notwithstanding any loss of majority by the union during such year.3 Further-
more, loss of majority does not modify or qualify the collective-bargaining obliga-
tions of an employer during the certification year; it neither excuses an employer
from executing a written contract, if an agreement was reached with the union during
the certification year,4 nor permits him to impose as a condition to its execution that
the terms of the agreement shall first be approved by the membership of the bargain-
ing unit.5 Accordingly, the Glass Workers' purported loss of majority was not a
legally sufficient reason for the Respondent's refusal to sign the Contract when it was
received on January 2, 1964, less than 1 year after the Glass Workers' certification, or
for its insistence upon ratification of the Contract by its employees as a prerequisite
to its execution by the Company.
Respondent also contends that "the basis of negotiations was Mr. Poske's own
formal proposal which, by its express terms set out in article I, included the Local
Union as one of the three contracting parties" and, therefore, without the concur-
rence of Local 425 no agreement was reached among all the parties to the negotia-
tions. By insisting that Local 425 was a necessary party to the Contract, Respondent
in effect takes the position that Local 425 had acquired a representative status equal to
that of the Glass Workers and that a joint bargaining representative had been substi-
tuted for the certified representative. I find no merit to this argument. Although
"[t]he Act does not prohibit the voluntary addition of a party" 6 to a collective-
bargaining agreement between an employer and the certified representative of his
employees, the record in this case does not support Respondent's assertion that the
Company and the Glass Workers had agreed to add Local 425 as a party to their Con-
tract.7 The subject was not discussed during the negotiations. According to the
uncontradicted testimony of Poske, the representatives of Local 425 attended the
bargaining sessions merely in the capacity of observers and consultants and had
no authority as negotiators. Furthermore, at the November 4 meeting, Poske spe-
cifically informed the Company representatives that he was acting "as the sole bar-
gaining agent." Thus, any misapprehension on the part of the Respondent as to the
status the Glass Workers was claiming for Local 425 was effectively dispelled before
the conclusion of the negotiations. In the circumstances, despite the preamble to
article I of the various drafts of contract prepared in the course of the negotiations,
the Company could not fairly have assumed (and no testimony was offered on behalf
of the Respondent that its representatives had made any such assumption) that the
Glass Workers was proposing, and was bargaining on the basis, that Local 425 would
be included as a necessary party to their agreement and that the approval of Local
425 would be required as a condition to the successful conclusion of negotiations. A
similar issue was decided by the Board in The Standard Oil Company cases In that
case the Board held that the certified bargaining agent alone was entitled the statutory
representative status despite a series of collective-bargaining agreements, entered into
subsequent to the date of certification, which had been jointly executed by both
the local and international.9
Accordingly, I find that the Respondent, by refusing on and after January 2, 1964,
to execute the Contract embodying the rates of pay, wages, hours of employment,
and other conditions of employment, as theretofore agreed upon, failed to bargain
8 Ray Brooks v. N.L.R.B., 348 U S. 96.
4 Holly-General Company, Division of Siegler Corporation, 129 NLRB 1098.
5 "The Act imposes no obligation upon a bargaining agent to obtain employee ratifica-
tion of a contract it negotiates in their behalf." North Country Motors, Ltd., 146
NLRB 671
8 N.L R B. v. Wooster Division of Borg-Warner Corporation, 356 U S 342, 350
7In view of my findings it is unnecessary to consider whether a certified representative
may unilaterally repudiate an agreement with the employer to add an affiliated union as
a party to any agreement they might negotiate.
8 92 NRLB 227, 235-236, remanded on other grounds, N.L.R.B. v. The Standard Oil
Company, 196 F 2d 892 (C.A. 6).
B See also Eastern Massachusetts Street Railway Company, 110 NLRB 1963, enfd.,
235 F. 2d 700 (C A. 1) ; and Kit Manufacturing Company, Inc., 150 NLRB 662 Mr.
Justice Harlan in his dissenting opinion in N L R.B. v. Wooster Division of Borg-Warner
Corp., 356 U S. 342, 362, observed, "By conditioning agreement upon a change in signa-
tory from the certified exclusive bargaining representative, the company here in effect
violated this duty [to execute a written contract incorporating any agreement reached if
requested]."
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively, as required by Section 8(d) of the Act, with the Glass Workers as the
exclusive representative of its employees in the appropriate unit, and thereby violated
Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations , described in section I, above , have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices it
will he recommended that Respondent cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
I have found that the Company and the Glass Workers reached an agreement with
respect to the terms and conditions of employment for the employees in the unit
represented by Glass Workers, and that the Company has failed in its statutory duty
to bargain collectively with said Union, by refusing: during the year following the
date of the Union 's certification , to execute the written contract incorporating the
terms of their agreement . Although more than 1 year now has elapsed since the date
of the Glass Workers' certification and the Union may no longer represent a majority,
[i]t would do violence to the Act [and] ... would encourage purposeful delay" 10 if,
for such reasons alone, the Respondent should be excused from the obligation to
bargain collectively with the Glass Workers and thereby should be absolved from the
consequences of its unfair labor practices ." "[A] bargaining relationshin once right-
fully established must be permitted to exist and function for a reasonable period in
which it can be given a fair chance to succeed ." 12 Respondent 's failure to implement
the agreement it reached with the Glass Workers by its unlawful refusal to execute the
Contract prevented the achievement of any measure of practical success in its bargain-
ing relationships with that Union. Accordingly, it is necessary, in order to effectuate
the purposes of the Act, to recommend an order requiring the Company to take such
appropriate remedial action as will promote the accomplishment of this objective.
The Contract mailed by the Union to the Respondent on December 31, 1963, a
copy of which was received in evidence as an exhibit in this care and was marked
"G C Exhibit 7," correctly reflects the agreement between the Company and the Glass
Workers. Said Contract, was to be effective for an initial term of I year from the
date of its execution subject to automatic renewal for additional periods of 1 year
unless notice to terminate or modify the agreement shall have been given by either
party to the other 60 days prior to any anniversary date Consistent with Board
precedent , I shall recommend that, upon request of the Union, the Respondent sign
the Contract and deliver an executed copy thereof to the Union, and that said Con-
tract shall be retroactively effective to January 2, 1964, the date when a completed
draft thereof was received by Respondent for its signature, and prospectively effective
from that date to at least the next renewal date, to wit, January 2, 1966 13 Due to the
lapse of time, the Glass Workers may, however, desire to bargain for a new agreement
immediately rather than be bound by the terms of an agreement reached in 1963.
Accordingly, I shall recommend that if no request to sign the Contract is made by
the Glass Workers the Respondent, upon request of said Union, shall bargain col-
lectively with it as the exclusive representative of the employees in the appropriate
unit, and , if an understanding is reached , embody such understanding in a signed
agreement
In order to fully remedy the violations of the Act committed herein, I shall also
recommend that, if the Respondent is requested by the Glass Workers to execute the
Contract, the Respondent shall make the employees whole for any losses they may
have suffered by reason of Respondent's unlawful refusal to execute the Contract. A
failure to provide for the foregoing, retroactive to January 2, 1964, would enable
the Respondent to benefit from its own unfair labor practices Any backpay which
shall be due to employees pursuant hereto shall be computed in accordance with the
formula set forth in F W. Woolworth Company, 90 NLRB 289, and shall bear interest
as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
10 N L R B v Warrensburg Board & Paper Corp., 340 F 2d 920 (C A. 2).
11 N L R B. v. Benne Katz, d / b/a Williamsburg Steel Productions Co, 369 U.S. 736,
748, footnote 16
12Frank Bros Company v. N.L R.B., 321 U.S. 702, 705.
13 Ogle Protection Service, Inc , etc., 149 NLRB 545.
BIG RUN COAL & CLAY COMPANY 1149
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. By failing and refusing, since January 2, 1964, to execute the written Contract
embodying the terms of the agreement reached by the Respondent and the Glass
Workers with respect to wages, hours of employment, and other conditions of employ-
ment for employees in the appropriate bargaining unit described below, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act. The appropriate collective-bargaining unit is composed of all
production and maintenance employees of the Respondent, at its plant on Stone Road
in Lexington, Kentucky, excluding all office clerical employees and all guards, pro-
fessional employees, and supervisors as defined in the Act.
2. By the foregoing conduct Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that
Respondent , Big Run Coal & Clay Company, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing, if requested to do so by the Glass Workers, to sign the Contract
reached with that Union.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights to bargain collectively through representa-
tives of their choosing.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request of the Glass Workers, forthwith execute the Contract described
in the section of this Decision entitled "The Remedy" and deliver an executed copy
thereof to the Glass Workers. Said Contract, subject to its automatic renewal
clause, shall be effective from January 2, 1964, until January 2, 1966. However, if
no request to execute the Contract is made, upon request of the Glass Workers,
bargain collectively with it as the exclusive representative of employees in the unit
described above, and, if an agreement is reached, execute a written contract incorpo-
rating the terms of such agreement.
(b) Upon request of the Glass Workers that the aforesaid Contract be executed,
give effect, retroactive to January 2, 1964, to the terms of said Contract, including
but not limited to the provisions relating to wages and other benefits, and make
whole the employees, in the manner set forth in the section of this Decision entitled
"The Remedy," for any losses suffered by them by reason of Respondent's refusal to
execute the Contract.
(c) Post at its plant in Lexington, Kentucky, the attached notice marked "Appen-
dix." 14 Copies of said notice, to be furnished by the Regional Director for Region 9,
shall, after being signed by an authorized representative of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Decision, what steps Respondent has taken to comply herewith.15
11 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of the United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
is In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL, if requested by United Glass and Ceramic Workers of North
America, AFL-CIO, sign the agreement we reached with said Union to be
effective from January 2 , 1964, to at least January 2 , 1966, and give retro-
active effect to all the terms of said Contract , including but not limited to the
provisions relating to wages and other benefits , and make whole employees
for any losses suffered by reason of our refusal to execute said Contract. If no
such request is made, we will, upon request, bargain collectively with the Union
as the exclusive bargaining representative of the employees in the following unit:
All production and maintenance employees employed at our plant on
Stone Road in Lexington , Kentucky , excluding all office clerical employees
and all guards, professional employees , and supervisors as defined in the
Act.
BIG RUN COAL & CLAY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 2023
Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No. 381-2200.
The Dow Chemical Company and Oil , Chemical and Atomic Work-
ers, AFL-CIO, and Industrial Union Department , AFL-CIO.
Case No. 13-CA-6309. June 4,1965
DECISION AND ORDER
On March 3, 1965, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that those allegations of the complaint be
dismissed . Thereafter, the General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs.'
'On May 12 , 1965, the Board granted the General Counsel 's request , predicated upon
the parties ' informal resolution of that issue . for permission to withdraw those of his
exceptions which were directed to the Trial Examiner 's failure to find a violation of
Section 8 ( a) (5) of the Act . Accordingly , in the absence of exceptions thereto, we adopt,
pro forma, the Trial Examiner 's conclusion that the Respondent did not violate Sec-
tion 8 ( a)(5) of the Act , and therefore find it unnecessary to consider or pass upon the
reasoning and conclusions of the Trial Examiner respecting the refusal -to-bargain allega-
tions of the complaint.
152 NLRB No. 122.