Gagnon Plating and Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 4, 1953

103 N.L.R.B. 263 (N.L.R.B. 1953)

GAGNON PLATING AND MANUFACTURING COMPANY 263
GAGNON PLATING AND MANUFACTURING COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE No. 750, AFL. Case No. 30-
CA-209. Varch 4, 1953
Decision and Order
On November 28, 1952, Trial Examiner Wallace E. Royster issued
his Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and supporting brief, and the entire record in this case
and hereby adopts the findings, conclusions, and recommendations of
the Trial Exan)lner z
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National La-
bor Relations Board hereby orders that the Respondent, Gagnon
Plating and Manufacturing Company, Colorado Springs, Colorado,
and its officers, agents , successors , and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith with Interna-
tional Association of Machinists, Lodge No. 750, AFL, as the exclu-
sive representative of all production and maintenance employees in
the production and maintenance departments in Respondent's plant
in Colorado Springs, Colorado, excluding all office and clerical em-
ployees, truck drivers, guards, and professional and supervisory em-
ployees as defined in the Act, as amended, in respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment.
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Styles and Peterson].
2 In agreeing with the Trial Examiner that the Respondent failed to bargain with the
Union in violation of Section 8 (a) (5) or the Act, we do not rely on his findings that
the Respondent insisted that the meetings be confined to the morning hours as the record
does not sustain such finding. Although we find, as did the Trial Examiner , that the
Respondent unnecessarily delayed the first bargaining meeting, we base this finding
solely on the delay by the Respondent on and after January 8, 1952 . These modifications
do not, however , affect the validity of the Trial Examiner 's ultimate conclusion that the
Respondent violated Section 8 ( a) (5) and ( 1) of the Act, nor our concurrence therein.
103 NLRB No. 40.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Association of
Machinists, Lodge No. 750, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively in good faith with Interna-
tional Association of Machinists, Lodge No. 750, AFL, as the exclu-
sive representative of all its production and maintenance employees
in the appropriate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment; supply
upon request in connection with bargaining, any relevant wage data;
and if an understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its plant in Colorado Springs, Colorado, copies of the
notice attached to the Intermediate Report as an appendix .3 Copies
of said notice, to be furnished by the Regional Director for the Sev-
enteenth Region, Kansas City, Missouri, shall, after being duly
signed by the Respondent, be posted by it immediately upon receipt
and maintained by it for a period of sixty, (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees customarily are posted. Reasonable steps shall be
taken by the Respondent to insure that the notices are not altered,
defaced, or covered by other material.
(c) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by International Association of Machinists, Lodge
No. 750, AFL, herein called the Union, the General Counsel for the National
Labor Relations Board by the Regional Director for the Seventeenth Region
(Kansas City, Missouri), issued a complaint dated October 6. 1952, against Gag-
8 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner," the words "A Decision and Order " In the event that this Order
is enforced by a decree of a United States Court of Appeals , the notice shall be further
amended by substituting for the words "Pursuant to a Decision and Order" in the caption,
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
GAGNON PLATING AND MANUFACTURING COMPANY 265
non Plating and Manufacturing Company, Colorado Springs, Colorado, herein
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136. Copies of the charges, the complaint,
and notice of hearing were duly served upon the Respondent and the Union.
In respect to unfair labor practices, the complaint alleges in substance that de-
spite the Union's status as representative of a majority of Respondent's employees
in an appropriate unit, Respondent since on or about December 7, 1951, has
refused and now refuses to bargain collectively in good faith with the Union.
Respondent's answer, dated October 15, 1952, admits that the complaint de-
scribes an appropriate unit, denies that the Union is the representative of a
majority of the employees included in the unit, and denies the commission of
unfair labor practices.
Pursuant to notice, a hearing was held before the undersigned Trial Examiner
at Colorado Springs, Colorado, on October 20, 1952. All parties were represented,
were permitted to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues. All waived the right to argue on the record and to
file briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Colorado corporation with its principal office and place of
business in Colorado Springs, Colorado, where it is engaged in electroplating
and metal finishing. In the course and conduct of its business it processes sub-
stantial amounts of materials for manufacturers for use in the latter's pro-
duction and assemblies. During the past fiscal year, the Respondent purchased
materials valued at an amount in excess of $50,000, of which approximately 50
percent represents purchases received by it from sources outside the State of
Colorado. During the same period, the Respondent shipped to points outside
the State of Colorado products valued at an amount in excess of $25,000. As
will appear, the Board has in an earlier proceeding asserted jurisdiction over
Respondent's operations.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Lodge No. 750, AFL, is a labor organi-
zation admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
After hearing and upon the record, the Board on November 26, 1951, issued a
Decision and Order finding that Respondent had failed to bargain in good faith
with the Union and ordering that it do so. Shortly thereafter, on December 7,
Respondent's counsel, Thomas M. Burgess, wrote the Board saying that the
required notice had been posted and that Respondent intended to comply with
the Order.
As the Board's Decision recites, the Union attained the status of bargaining
representative on February 18, 1949, as a result of an election conducted by Board
agents among the employees in the same unit which, in this proceeding, the
2 Gagnon Plating and Manufacturing Company, 97 NLRB 104.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties agree is appropriate. Thereafter a series of meetings between counsel
for Respondent and representatives of the Union occurred. As to these, the
Board found "the Respondent's entire course of conduct in its bargaining relation-
ship with the Union at all times displayed a fixed intention merely to preserve
the appearance of bargaining, while avoiding any actual negotiation in good faith
or effort to reach a mutually satisfactory agreement." The last formal bar-
gaining meeting, if it be proper to term it such, prior to the issuance of the Board's
Order took place on August 10, 1949.
In the case here for decision, Stidham C. Vandeventer, one of Respondent's em-
ployees, testified that about December 5 or 6 he asked Bernard Gagnon, Re-
spondent's president, to advise him how the employees could renounce the Union
as bargaining agent. On December 7, Gagnon handed Vandeventer, according
to the latter's testimony, a form of decertification petition for employee signa-
ture.' At Vandeventer's request, Gagnon designated another employee, Roelens,
as Vandeventer's assistant. The 2 employees then went through the plant and
in about 30 minutes secured the signatures of 32 employees-assertedly the
entire number of workers in the unit for which the Union was certified. The
circulation took place in the plant during working hours Roelens was away
from his job while so engaged. Vandeventer used both working and free time.
The result was shown to Gagnon who exclaimed, "Oh boy, they're all with me."
The petition was forwarded by Burgess to the Board's Regional Office for action.
It was dismissed by the Regional Director and his action was, apparently, sus-
tained by the Board upon appeal.
M. A. Lovay, a representative of the Union, testified that he and E. F. Hansen,
also a union agent, met with Gagnon on December 8 in an attempt to set a date
for a bargaining meeting. Gagnon said that the press of year-end business made
it exceedingly difficult for him to enter into such arrangement and all agreed
that the Union would make another request in early January. After several
unfruitful attempts to reach Gagnon by telephone, Lovay managed to do so
on January 8 only to learn that Gagnon was leaving the city immediately and
would not return for about 10 days. Lovay said that he would call again and
on January 22, with Hansen, went to the plant. Gagnon met them but said that
he was too busy to take the necessary time for a bargaining meeting. Agree-
ment was reached that such a meeting would take place on February 6 and
Gagnon assured Lovay and Hansen that he would advise them should any mat-
ter arise affecting his ability to keep the engagement. But on the appointed day,
Lovay and Hansen learned that Gagnon was out of town and would not return
until evening. That night in a telephone conversation, Gagnon agreed to meet
with them at 10 the next morning.
The meeting took place, the Union presented its contract proposal, and after
some discussion consuming about 2 hours, arrangements -were madezto continue
negotiations on the same day of the following week. At the second meeting,
which lasted about 11/2 hours, some reference was made by Gagnon to the fact
that the union proposal contained no wage demand. Lovay explained that he
2 On cross-examination Vandeventer's testimony was somewhat uncertain on this point.
He then evidenced some recollection of having received the petition from Attorney
Burgess after an appointment for that purpose had been made for him by one Frank
Emery Emery is variously and casually identified in the record as an accountant,
possibly a stockholder, a partner, secretary of the firm, and just an employee. Burgess
testified that he prepared and submitted the petition to Vandeventer at the latter's
request. Gagnon did not testify in this connection and Emery was not called as a witness.
On the basis of the testimony of Vandeventer and Burgess, I find that Vandeventer dis-
cussed the matter of decertification with Gagnon and Emery ; that Emery made an
appointment for Vandeventer with Burgess ; and that Burgess prepared the document.
GAGNON PLATING AND MANUFACTURING COMPANY 267
understood Gagnon to have already raised wages to the point that no further
increases were permissible under Wage Stabilization regulations . At the close
of the meeting , Gagnon said that he must leave town for a time and suggested
that the union representatives call him in about 2 weeks to arrange for the
next meeting.
A further meeting took place on March 11. Although scheduled for 10 in the
morning, the union negotiators were kept waiting for a half hour while Gagnon
talked to another visitor. After about an hour, having arrived in the opinion
of Lovay at an impasse , he suggested that a conciliator be called . Gagnon re-
jected the suggestion.
By later arrangement , the parties met again on March 18 . The Union modi-
fied its union-shop proposal so that present employees , not its members, need
not become so as a condition of employment . Gagnon objected to it as he had to
all proposals which conditioned employment upon union membership.
On March 25 Hansen and Gagnon met . Again, a meeting scheduled for 10
a. in. was delayed until 10: 30 because Gagnon was busy with another caller.
During the meeting, Gagnon made contract proposals in respect to seniority, a
shop committee , grievance procedure , and duration of the agreement. The
Union had proposed that seniority govern in promotions , transfers , layoffs, and
rehire. Gagnon offered to agree that it be one of the considerations in effecting
such action . The Union 's proposed contract provided for recognition of a shop
committee elected by the employees , empowered to present grievances to man-
agement. Gagnon offered a clause denying such authority to the committee and
another restricting the presentation of grievances to the employee affected with
the determination of management to be final.
The parties met further on April 8, 15, 29, May 8, 15, and 22 . Gagnon asserted
and Hansen denied that a meeting was held on April 22. The date has no par-
ticular significance in the context of bargaining so I have not resolved the con-
flict. To all requests by the Union that Gagnon inform it as to wages being paid,
Gagnon replied that the Union knew as well as he what they were and refused
to supply the information . On April 29 or May 8 , Gagnon agreed to draw a con-
tract that he would consider suitable and on May 22 submitted it. During one
of the later meetings , Gagnon mentioned that the employees had signified their
desire, by signing the decertification petition, not to be represented by the Union
and some talk of holding an election or polling the employees resulted.
In the months while these meetings were being held or sought , a number of
employees were given wage increases . The first such action occurred on Jan-
uary 11 and the last on June 13 . In all, 50 increases were effected ; some in-
dividuals were given more than 1 raise. Gagnon testified that the increases
ranged from 5 to 10 cents an hour and were distributed as follows : 5 to trainees ;
15 for length of service ; 29 for merit ; 1 by promotion . Gagnon described the
trainee raises as automatic . His testimony concerning the distinction between
merit and length-of-service increases does not clearly show just what standards
were used to determine which employee should receive a raise ( or who not)
or how the amount of the raise was decided . None of the increases was a subject
of discussion with the Union except that Hansen complained that Gagnon was
acting unilaterally in such matters.
In March 1952 , the Respondent submitted the requisite forms to the National
Wage Stabilization Board to obtain approval of a general wage increase. Re-
spondent left blank those portions of the form which asked , "Is there a col-
lective bargaining representative ? Is there an unfair labor practice pending?
Is there an election pending?" This request was later withdrawn but similar
forms were filed by the Respondent in September and to each of the questions
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quoted above, the Respondent answered "No." At the time of the hearing and
at the request of that agency, the Respondent was engaged in the compilation
of further data concerning wage increases.
Gagnon explained that an employee of the Wage Stabilization Board told him
that if he had no contract with a labor organization he need not answer the
questions with the result that the March application was left blank in those
particulars. The last application, Gagnon testified, was prepared by one hired
for that purpose who was not aware of the Union' s claim to recognition.
The last meeting between the parties took place on May 22. Then Gagnon
offered his contract proposal providing for an open shop, leaving classifications
and wages for later negotiation (but postponing the effective date of the contract
until agreement on them had been reached), recognizing the right of the Union to
form a shop committee to present any grievance submitted by an employee,
requiring the Union to forego strike action and to respond in damages for any
failure of its membership to honor that commitment, forbidding the Union to
establish or permit any picket line to be maintained about the plant, denying
access to the plant to any union representative, not an employee, except by
appointment with management and providing that such representatives should
not visit or confer with employees during working hours. At the close of the
meeting Gagnon said that he would be out of town for the ensuing 6 weeks and
thus would be unable to meet with Hansen. The latter suggested that Gagnon
appoint someone to negotiate in his place. Gagnon answered that he would make
an attempt to do so and suggested that Hansen telephone him the next day about
it. On each of the next 3 days Hansen did so but was not successful in reaching
Gagnon. On June 3, Hansen spoke to Gagnon by telephone and was told that the
latter had not yet started on his trip but was about to do so, that he would be
away for about 2 weeks, that he was too busy then to meet with Hansen , and that
he had found it impracticable to appoint anyone to act in his stead. On June 6
Hansen wrote Gagnon requesting that Gagnon notify him of the earliest date that
the next meeting could be held and that Gagnon then supply a wage schedule so
that negotiations could be completed. No answer to or acknowledgement of the
letter came from Gagnon and there has been no meeting between the Respondent
and the Union since.
The election of February 18, 1949, established the Union as the exclusive
bargaining representative of Respondent 's employees in an appropriate unit. In
its Decision of November 26, 1951, the Board said that the Respondent had
engaged in bad-faith bargaining from the time that the Union demonstrated its
majority but, because the charge in that case was not filed and served until
December 14, 1949, found that the unfair labor practice based upon that conduct
began on June 14 of that year. Thus, when the Decision of November 1951 issued,
Respondent had never complied with the requirement of the Act that it bargain
with the Union. Under well-settled principles of decision, a bargaining agency,
once established, must be given a reasonable opportunity to demonstrate its value
or lack of it to the employees it represents. Logically, it is held, a loss of major-
ity traceable to an employer's unfair labor practices may not operate to relieve
that employer from his duty to bargain. Thus on December 5, 1951, the Respond-
ent was under a duty to bargain with the Union for, aside from the Board's Order
that it do so, the Union then was a lawfully chosen bargaining representative
whose status had not to that point been accorded the recognition conferred by the
Act. On this date, Gagnon discussed the question of ousting the Union with
Vandeventer and advised him to see Attorney Burgess. When Vandeventer
secured the petition, Gagnon not only permitted him to circulate it in the plant
during operating hours but designated another employee to assist him. Of
GAGNON PLATING AND MANUFACTURING COMPANY 269
course this conduct was entirely inconsistent with and opposed to Gagnon's
contemporaneous advice, through counsel, to the Board that it would comply with
the order to bargain. Decertification would relieve the Respondent of that bur-
den. Hence, Gagnon's joyful remark when he saw that all of his employees had
signed.
Participation with and assistance to the circulators of the decertification
petition raised the curtain upon the second scene of Respondent's struggle to
avoid obedience to the requirements of the Act. Following a logical and per-
haps predictable pattern came the delay of about 2 months before the first
bargaining meeting took place in spite of the Union's persistent attempts to
bring it about ; Gagnon' s resistance to suggestions that meetings be held more
frequently ; confinement of meetings to the morning hours ; the manifestation
of a contemptuous attitude by his failure to notify the Union that he could
not appear, as he had agreed, on February 6; the persistent and continuing re-
fusal to supply the Union with wage rates in effect; the denial (for a time)
of the Union's right to represent employees in grievance matters ; the unilateral
wage increases made while refusing wage information to the Union ; the denial
to another Federal agency that its employees were represented by a labor organi-
zation ; and, finally, Gagnon's disregard of the Union's request in its letter of
June 6 that he advise when another meeting could be held.
It is obvious that the Respondent does not concede that, under the Act, bargain-
ing connotes a meeting between equals ; that, once established, a bargaining
representative must be permitted to serve its function. Respondent's conduct
described above, I find, provides a conclusive demonstration of its determination
not to bargain with the Union. I find that by such conduct, Respondent
has failed to bargain with the Union in matters of wages, hours, and conditions
of employment and thus has violated and is violating Section 8 (a) (5) of the
Act. By refusing to bargain in good faith with the Union, Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act and thereby has violated and is violating Section
8 (a) (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
connection with the operations of the Respondent 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and take affirmative
action to effectuate the policies and purposes of the Act. Having found that the
Respondent has refused to bargain in good faith with the Union as the ex-
clusive representative of the employees in an appropriate unit, I will recommend
that Respondent, upon request, fulfill its duty in that respect.
Because of the persistent flouting of employee rights in connection with bar-
gaining as exemplified in the conduct set forth in section III of this report, I
consider it reasonable to anticipate that Respondent, in order to accomplish its
aim of depriving its employees of representation, may indulge in other unfair
labor practices. In order therefore, to fashion a remedy coextensive with the
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat, I will recommend that Respondent be required to cease and desist from
in any manner violating the statutory command.
Upon the basis of these considerations and upon the entire record in the case,
I make the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Lodge No. 750, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees in Respondent's production and
maintenance departments, excluding all office and clerical employees, truck
drivers, guards, professional and supervisory employees, as defined in the Act, as
amended, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. International Asssociation of Machinists, Lodge No. 750, AFL, was on
February 18, 1949, and at all times material since has been the exclusive repre-
sentative of all employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By its conduct on and after December 5, 1951, Respondent has refused and
is refusing to bargain collectively in good faith with International Association
of Machinists, Lodge No. 750, AFL, and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE wrrL in good faith bargain collectively upon request with INTER-
NATIONAL ASSOCIATION OF MACHINISTS, LODGE NO. 750, AFL, as the exclusive
representative of all production and maintenance employees in the produc-
tion and maintenance departments in our plant excluding all office and
clerical employees, truck drivers, guards, and professional and supervisory
employees as defined in the Act, as amended, in respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment
(divulging upon request all relevant wage data), and if an understanding is
reached, enter into a signed agreement.
WE WILL NOT in any manner interefere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist the above-named (or any other) labor organi-
zation, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such ac-
tivities except to the extent that such right may be affected by an agreement
ASSOCIATED DRY GOODS CORPORATION 271
requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
GAGNON PLATING AND MANUFACTURING COMPANY,
Employer.
Dated ------------------------ By --------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered; defaced, orcovered by 'Other material.
ASSOCIATED DRY GOODS CORPORATION ( LORD & TAYLOR DIVISION,
FORMERLY LORD & TAYLOR and UNITED DEPARTMENT STORE WORKERS
of AMERICA , CIO. Case No. 2-CA-2029. March 4, 1953
Decision and Order
,On November 28, 1952, Trial Examiner Max M.. Goldman issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and recommended that those
allegations of the complaint be dismissed. Thereafter, the Respond-
ent and the Union filed exceptions and supporting briefs.
11
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
,case, sand hereby adopts the' findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications :
1. At the close of the hearing, the Trial Examiner dismissed the
allegation of the complaint which alleged that the Respondent had
violated the Act by threatening its employees with the loss of benefits
in the event they became unionized. The Union excepts to this dis-
missal and we find merit in its exceptions. According to the credited
and uncontradicted testimony of Irwin Weiner, one of the Respon-
dent's shoe salesmen, he and his supervisor, Section Manager Roy
.Stohldrier, had a discussion about unions in the store sometime in
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston, Styles,
and Peterson],
103 NLRB"No. 28.