Houston Sheet Metal Contractors Assn., Etc.

National Labor Relations Board - Board Decisions

Jun 26, 1964

147 N.L.R.B. 774 (N.L.R.B. 1964)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT render aid, assistance , or support to Local No . 2, Cap Makers
Union, affiliated with United Hatters , Cap and Millinery Workers, AFL-CIO,
unless and until it is certified by the National Labor Relations Board as the
majority representative of all our employees.
WE WILL NOT encourage membership in Local No . 2, Cap Makers Union, or
any other labor organization , nor will we discourage membership in District 65,
Retail , Wholesale and Department Store Union , AFL-CIO, or any other labor
organization , by discharging or in any other manner discriminating against our
employees in regard to their hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT unlawfully interrogate our employees concerning their union
membership , interest , or activity, threaten them with reprisals for their member-
ship in one rather than another union , offer them benefits or wage increases for
like reasons , or withhold paychecks until any of our employees join a union
of our choice.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to 'form labor
organizations , to join or assist the above -named or any other labor organization,.
to bargain collectively through representatives of their own choosing, and to
engage in any other 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 condition of employment , as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Hector Zayas immediate and full reinstatement to his former or
substantially equivalent position , and make him whole for any loss of earnings
he may have suffered by reason of the discrimination against him.
All our employees are free to become, remain , or refrain from becoming or remain-
ing, members of Local No . 2, Cap Makers Union , affiliated with United Hatters, Cap
and Millinery Workers, AFL-CIO, or District 65, Retail , Wholesale and Department
Store Union , AFL-CIO, or of any other labor organization.
SPORTSWEAR INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building , 745 Fifth Avenue , New York , New York , Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Houston Sheet Metal Contractors Association (Kitchen Equip-
ment Division ), Industrial Metal Fixtures , Southern Metal
Manufacturing Company, Inc., Texas Metal Equipment Co.
and Local Union No. 54 , Sheet Metal Workers International
Association , AFL-CIO. Case No. 23-CA-1672. June 26, 196.
DECISION AND ORDER
On January 30, 1964, Trial Examiner Eugene F. Frey issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
147 NLRB No. 96.
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 775
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondents filed exceptions to the Trial Ex-
aminer's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except to the extent modified
herein.
The critical facts in this case are not in dispute, and have been
adequately set forth in the Trial Examiner's Decision. We shall re-
state them only to the extent required by our discussion of the case.
The record shows that Respondent Employers have maintained a
collective-bargaining relationship with the Union for many years.'
For a number of years Respondent Employers have bargained with the
Union through Respondent Association. The most recent contract be-
tween the parties was executed in July 1961, effective for the period
June 1, 1961, to May 31,1963.
In March 1963, the Union gave proper notice to Respondents that it
wished to negotiate a new contract and bargaining began on May 8,
1963. The Union's initial demands included a raise in hourly wages
and eight paid holidays. The existing agreement did not provide for
any paid holidays. The Union also demanded certain fringe benefits,
a premium pay provision, and a hiring hall clause. Respondents
made a counteroffer which consisted solely of an increase in hourly
rates. Thereafter, bargaining continued focusing on the issues of
wage raises and paid holidays.
On May 29, 1963, the Union notified Respondents that unless agree-
ment was reached by midnight of May 31, the employees would strike.
The strike actually began on June 3, and Respondents concede that
virtually all of the employees in the unit represented by the Union
went on strike? While the strike was in progress negotiations con-
tinued. On June 9, Respondents offered a wage increase plus five
paid holidays. Union negotiators stated that they would refer this
offer to the membership.
1 Claude L . Harmon, president of Respondent Texas Metal Equipment Company, testified
that Texas and Industrial Metal Fixtures have engaged in collective bargaining with the
Union since 1951 , and that Southern Metal Manufacturing Company has been bargaining
with the Union since about 1958.
2 In their answer to the complaint , Respondents admitted that the unit consisting of all
sheet metal employees and apprentices of members of the Association (Kitchen Equipment
Division ) constitutes an appropriate unit for purposes of collective bargaining.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a June 10 membership meeting, Respondents' offer was rejected.
Union negotiators advised Respondents of the rejection of their latest
offer, but stated that a small increase in the wage offer would probably
induce membership acceptance. Respondents replied that they had
made their last offer. Nevertheless, bargaining continued. On
June 21, union representatives requested another meeting. Respond-
ents replied by letter on June 24, reciting their June 9 offer and stating
that since the C;nion had rejected that offer the Employers were await-
ing I. counteroffer "as a basis for further negotiations." 8 The union
representative, upon receipt of Respondents' letter, telephoned Re-
spondents' representative and stated that the membership had recon-
sidered and would accept Respondents' June 9 offer.' Respondents'
representative replied that since the June 9 offer had been rejected by
the Union, Respondents viewed that offer as having lapsed. The
Union asserted, however, that the offer was still open since it had not
been withdrawn in writing, and on June 26 telegraphed Respondents
that the Union proposed to accept Respondents' offer of June 9 as
restated in Respondents' letter of June 24. Respondents replied that
they would treat the Union's proposal as a counteroffer and would
soon reply.
Respondents did not reply directly, however. Rather, on July 12,
at a meeting of the parties, Respondents handed the union representa-
tive a written offer of $3.15 per hour and no paid holidays. This offer
was 271/2 cents below the rate under the prior contract, and below the
rate previously offered by Respondents during negotiations. Re-
spondents concede that they did not expect the Union to accept the
offer. The Union made one more effort to meet with Respondents,
but Respondents avoided any further meetings.
Shortly after the June 3 strike began, Respondent Employers at-
tempted to induce their employees to abandon the Union by offering
increased economic benefits although there was, admittedly, no im-
passe in bargaining. Respondents did not discharge any employees
although the, record shows that Respondents threatened the employees
with economic retaliation if they failed to return to work.' Within
2 to 3 weeks of the commencement of the strike, most of the employees
had returned to work.
3 Respondents concede that there has never been an impasse in bargaining.
4 Respondents contend , inter alia, that the failure of the parties to reach agreement here
resulted from the refusal of the Union to submit a counteroffer with respect to those issues
other than wages and paid holidays which were in the Union' s initial offer . We find no
merit in this contention since the record shows that the Union never pressed its demands
with respect to these other matters. Union Representative Woodall' s statement to Re-
spondents' representative on June 10 indicating that a small increase in the wage offer
would result in an agreement indicates that these demands had been abandoned ( as does
the Union's statement of June 24 that it would accept the June 9 offer ), and that the sole
remaining area of dispute between the parties as of June 9 was the issue of wages.
5 Respondents' conduct with respect to their employees during the course of the strike is
set forth in detail in the Trial Examiner 's Decision.
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 777
We agree with the Trial Examiner that the -undisputed evidence on
the record establishes that Respondents failed to bargain with the
Union in good faith in violation of Section 8(a.) (5) and (1) of the
Act, but contrary to the Trial Examiner we find that the failure to
bargain in good faith dated from approximately June 10, 1963. Al-
though the record indicates that Respondents may have initially ap-
proached the bargaining table with a. sincere desire to reach agreement,
we are also convinced that subsequent conduct showed a marked ab-
sence of good faith within the meaning of the Act. Thus, as we have
noted, Respondents engaged in direct negotiations with their em-
ployees at a time when there was no impasse in bargaining; Respond-
ents refused to agree to au offer which they had themselves previously
.made; and Respondents finally made an offer substantially below the
previous contract and their own earlier offers which they admit the
Union could not have been expected to accept.
Respondents, while conceding that they engaged in the conduct de-
scribed above, deny any intent to frustrate collective bargaining, and
they also contend in part that the complaint should be dismissed on
the ground that the General Counsel failed to establish that the Union
represented a majority of the employees at the time the alleged re-
fusal to bargain occurred. In the main, Respondents' argument in
this regard is predicated on the assertion that the previous contract
between the parties, which the General Counsel relied upon as evidence
of the Union's majority status, was in effect only a prehire agreement
sanctioned under S (f) of the Act. Therefore, Respondents contend,
the contract may not constitute evidence that the Union at any time
represented a majority of the employees.
We are satisfied, however, contrary to Respondents' contentions,
that the evidence does support the allegation of the complaint that
the Union represented a majority of the employees. It is clear that
the contract was not a prehire agreement, as Respondents claim, since
it admittedly covered employees who fabricated kitchen equipment at
Respondents' plants as well as installing such equipment at construc-
tion sites. Moreover, the record shows, and Respondents do not deny,
that they were engaged in the fabrication of such equipment and
recognized the Union as the representative of their employees prior to
enactment of the 1959 amendments sanctioning the execution of pre-
hire agreements. Clearly, the bargaining was being conducted on be-
half of employees who fabricated as well as employees who installed
the kitchen equipment. Indeed, the same employees performed both
functions, and it would be unreasonable to infer that the recognition
clause of the contract did not extend to all sheet metal employees.
Finally, the Union's majority status is established by Respondents'
admission that virtually all of their employees joined in the strike in
0
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of the Union's bargaining demands.6 In our opinion, the
foregoing facts amply support the Trial Examiner's finding that the
Union represented a majority of the employees in the unit.
Of somewhat different nature is Respondents' contention that the
complaint must fail because the record does not contain evidence that
the Union had complied with the provisions of Section 8(d) (3) of
the Act prior to the commencement of the strike on June 3. Respond-
ents do not contend that the Union failed to comply with Section
8(d) (3),_ and, indeed, there is no evidence that in fact the Union did
not so comply; rather, they rely merely upon the absence of an affirma-
tive showing that the Union did comply with Section 8(d) (3). Re-
spondents raised this question for the first time in their brief to the
Trial Examiner.7
It is obvious that the question of whether the Union gave the req-
isite notice under Section 8(d) (3) prior to the commencement of
the strike is an issue of fact. Reason dictates, therefore, that it should
have been raised by the Respondents at an appropriate time, that is,
in their pleadings and not after the hearing was closed. We believe
that the orderly processing of unfair labor practice proceedings re-
quires that parties seeking to raise Section 8(d) as a defense to con-
duct which otherwise would constitute an unfair labor practice, absent
special circumstances, must raise the question of compliance with Sec-
tion 8(d) in an appropriate pleading, and not delay, as Respondents
have in the instant case, until after the close of the hearing. As is the
case in the United States district courts under the Federal Rules of
Civil Procedure, we believe that the sound administration of the Act
and expeditious disposition of disputes arising under the Act requires
that the Board view a.s waived all defenses which are not raised timely
either in the pleadings or, where appropriate, by motion during the
hearing.8
Therefore, in the absence of evidence concerning the Union's non-
compliance with Section 8(d) (3) and in light of Respondents' failure
e See American Aggregate Compare,/, Inc. and Featierlite Corporation, 130 NLRB 1397,
1403, enfd. 305 F. 2d 559 (C.A. 5).
Y The Trial Examiner, assuming for purposes of his disposition of the issue that the
Union had not complied with Section 8(d) (3), relied upon our decision in Mrs. Fay's
Pies, Inc., 145 NLRB 495, as excusing a failure to comply with Section 8(d)(3), where,
as in the Trial Examiner's view of the instant case , the strike was precipitated by the
employer 's unfair labor practices . In the Trial Examiner's opinion, the evidence clearly
established that Respondents were bargaining in bad faith from the inception of bargain-
ing, and in any event, the Trial Examiner found , even if the strike were economic in its
inception , Respondents ' subsequent conduct converted it into an unfair labor practice
strike thereby excusing compliance with Section 8(d) (3). However, in view of our dis-
position of the 8(d) (3) issue, we do not find it necessary to pass upon the Trial Exam-
iner's finding that Respondents ' subsequent unfair labor practices excused compliance with
Section 8 ( d)(3). °
8 Cf. Federal Rules of Civil Procedure , Rule 12 ( h) ; see also N.L.R.B. v. aiustina Bros.
Lumber Co., 253 F. 2d 371 (C.A. 9).
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 779
to raise the issue in its answer or amended answer to the complaint,
we reject Respondents ' assertion of Section 8(d) as a defense to the
unfair labor practices alleged in the complaint.
Accordingly, the Board finds that Respondents have violated Sec-
tion 8 (a) (5) and (1) of the Act.
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 Order recommendedby the Trail Examiner and orders that
the Respondents, Houston Sheet Metal Contractors Association
(Kitchen Equipment Division), Industrial Metal Fixtures, Southern
Metal Manufacturing Company, Inc., Texas Metal Equipment Co.,
their officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The issues in this case are whether ( 1) Respondent Houston Sheet Metal Contrac-
tors Association ( Kitchen Equipment Division ) (herein called the Association), and
its members , Industrial Metal Fixtures (herein called Industrial ), Southern Metal
Manufacturing Company, Inc. (herein called Southern ), and Texas Metal Equip-
ment Co . (herein called Texas ) have failed to bargain in good faith with the above-
named Union as representative of employees of said members in an appropriate
unit , in violation of Section 8(a)(5) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec . 151, et seq. (herein called the Act), and (2) Southern and
Industrial have offered employees benefits and threatened them with reprisals, to
induce them to abandon a strike called by the Union and return to work, and to
withdraw from the Union , and have bargained with employees individually, in
violation of Section 8(a)(1) of the Act. The issues arise on a complaint issued
September 24, 1963, by the Board 's Regional Director for the Twenty-third Region,
as amended on October 23, 1963,1 and answers of Respondents admitting jurisdic-
tion, denying the commission of any unfair labor practices , and asserting certain
affirmative defenses.
On due notice, a hearing on the issues was held before Trial Examiner Eugene F.
Frey at Houston , Texas, on October 29 and 30 , 1963, in which all parties were
represented and participated through counsel or other representative . All parties
waived oral argument , but General Counsel and Respondents have filed written briefs
with the Trial Examiner which have been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses on
the stand , I make the following:
FINDINGS OF FACT
1. THE COMMERCE FACTS
The Association is a Texas corporation with its principal office in Houston , Texas,
and consists of a group of employers , including Industrial , Southern , and Texas,
engaged in the business of manufacturing and installation of food serving and kitchen
equipment . Its main purpose is the negotiation and administration of collective-
bargaining contracts made by it on behalf of its members with various labor organiza-
tions. Industrial , Southern , and Texas each have their principal office and place
of business in Houston , where each makes and installs custom-made food serving
and kitchen equipment . In the past 12 months , the members of the Association
have made and shipped from their Houston plants directly to points outside Texas
finished products valued in excess of $50,000 ,, and in the same period they have
1 The complaint and amendment were issued after investigation by the Board of a charge
and amended charge filed August 14 and September 18, 1963 , respectively , by the Union.
780 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
bought and had delivered at said plants directly from points outside Texas goods
and materials valued in excess of $50,000. I find that the Association and the in-
dividual Respondents named above are each engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION
The above-named Union is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 2
For some years past Industrial, Southern, and Texas have bargained through the
Association with the Union as the collective-bargaining representative of a unit
consisting of all sheet metal employees and apprentices of members of the Associa-
tion, excluding all supervisors as defined in the Act, which unit Respondents admit,
and I find, to be a unit appropriate for collective bargaining within the meaning of
Section 9(b) of the Act. On or about July 25, 1961, said Respondents through
the Association negotiated a contract with the Union covering their kitchen equip-
ment employees in said unit. The contract ran from June 1, 1961, through May 31,
1963. After due 60-day notice from the Union in March 1963 of its desire to
negotiate a new contract, an association committee which included officials of Re-
spondent Employers began negotiations with a union bargaining committee.
During the negotiations recited hereafter, Respondents never questioned the status
of the Union as the exclusive bargaining representative of their kitchen equipment
employees, and I find on the entire record that at all times material herein the
Union has been the representative of the majority of such employees and, by virtue
of Section 9(a) of the Act, the exclusive bargaining representative of such em-
ployees which are included in the above appropriate unit.
The expiring contract provided for a journeyman rate of $3.421/2 an hour, but
gave employees no paid holidays. The Union's initial demand on May 8 was
essentially what outside roofing and sheet metal workers were receiving under a
separate contract between the Association and the Union, i.e., $3.86 an hour for
journeymen, eight paid holidays with premium pay, certain other fringe benefits,
and a hiring hall. The Association rejected this demand, but on May 10 made a
counteroffer of $3.491 an hour for journeymen for the first year of a 3-year con-
tract, with successive 6-cent raises in the last 2 years , and proportionate raises for
lower (and new) job classifications. The Union rejected this offer. After further
negotiations, the Association on May 27 offered a top rate of $3.471/2 with lower
rates for other classifications , and 6-cent raises in the second and third years. The
Union rejected this on May 29, advising that if no agreement was reached by
May 31, the employees would strike. The strike began on June 3, and has con-
tinued through the hearing.
At a meeting on June 9, after several cross-proposals by both sides, the Associa-
tion repeated its last offer, adding five paid holidays. After discussion, the union
committee did not reject the offer, but said they would have to take it back to the
membership to vote on it, and would let the Association know the result .3 At an
early meeting on the 10th, the employees rejected the offer, and Woodall at once
advised the Association committee of the action, but asked for another meeting,
suggesting that if the employers raised their offer 3 cents an hour and added two
more paid holidays, it would be accepted. An Association spokesman replied that
this was the Employers' last and final offer. Sometime later, but before June 21,
two Association committeemen (Sharman and Frank Smith) discussed with Woodall
the last offer and its rejection, but reached no further agreement. On the 21st, the
Union requested another meeting. On the 24th the Association through Sharman
wrote the Union, reciting its last offer of June 9 and saying, "Since you have rejected
our last offer, we have been waiting (for) your counterproposal as a basis for fur-
ther negotiations . Please submit to me your proposal prior to our next meeting."
2 Except where otherwise noted, the findings In this section are based on credited and
mutually corroborative testimony of various witnesses of the General Counsel, as cor-
roborated In part by admissions of Bruce Weaver, president of Industrial ; Henry F.
Peebles, Jr., president of Southern ; Claude L. Harmon, president of Texas. Testimony of
any of these witnesses at variance with the findings is not credited.
Knowing that the Union's business agent, Woodrow W. Woodall, had signed the prior
contract as sole representative of the Union, the Association committee assumed be had
final authority to sign this time, so asked him when he would sign so that the employees
could return to work. However, he replied that he had no authority to sign but would
submit the offer to the workers on the 10th.
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 781
In reply Woodall told Sharman on the telephone that the membership had recon-
sidered and would accept the Association 's last offer . Sharman claimed that offer
had lapsed , but Woodall contended it was still open since it was not withdrawn in
writing, and that by accepting it the Union had a contract with the Respondents.
By telegram of the 26th the Union formally notified the Association that "our pro-
posal is since you did not withdraw the proposal made by the (Association) for
the kitchen equipment contractors dated June 9 , 1963 , and in your letter dated
June 24, 1963 , we are now willing to sign a contract which will include items listed
in your letter dated June 24, 1963." On June 28, the Association replied that its
proposal of June 9 was rejected by the union negotiating committee on June 10,
1963, and "must be deemed by the (Association ) as being no longer valid, as is
clearly evident from reading our letter of June 24 , 1963, requesting you to make a
counterproposal to us. We will consider your telegram of June 26 as a counter-
proposal of the terms previously offered by the negotiating committee of the (Asso-
ciation ) on June 9th ." Sharman then stated that the Association offer of the 9th
had not been unanimously supported by the membership of the Association , and his
personal opinion was that the Association would not now agree to the union offer of
those terms, but he would submit it to the next negotiating committee meeting, and
then arrange a meeting with the Union to discuss it. The record does not show
when or how the Association committee acted on it , but on July 12 Sharman and
Smith met Woodall and gave him a written offer of $3.15 an hour for journeymen
mechanics , in reply to . the union offer of June 26. Woodall looked at the offer,
laughed, and said, "I sure ought to sign that, all right," at which all laughed.
Woodall also asked Sharman whether Respondents would sign a contract if the
Union accepted this offer . Sharman replied that he did not know, would have to
find out. Toward the end of July, Louis Kresesienski , the Union 's assistant business
agent and a member of the negotiating committee, asked Weaver to assemble the
Association committee for another meeting with the Union to "straighten out this
mess, " to which Weaver replied that he would contact his committee and let the
Union know , but he never did. There have been no meetings of the parties re-
quested by either side or held since.
The negotiations between the parties through the June 9 session, when considered
alone, portray normal arm's-length bargaining, with some tactical shifting of posi-
tions by both sides. Respondents contend that the Union 's rejection on June 10 of
their last offer of June 9 in legal effect terminated that offer , so that it could not be
revived by a later acceptance , and that after the 10th Respondents were entitled to
treat the situation as a total and permanent impasse which left them free to grant
the unilateral wage increases and benefits to employees found above . If the Union's
rejection on the 10th had been couched in terms of finality, just as Respondents de-
scribed their rejected offer as the "last and final offer ," a true deadlock might have
resulted which would have left Respondents free to grant some of the concessions
contained in their offers up to and including that of the 9th? However, the record
shows that on June 10 and later , the situation was not hopelessly deadlocked, but
still fluid and capable of further negotiation , since the union agents advised Respond-
ents that , despite the employees' rejection of the June 9 offer, they felt that another
small concession from Respondents might bring an agreement, and wanted another
meeting to discuss it . When an informal meeting proved unproductive , and Re-
spondents on June 24 formally asked for the Union 's written counterproposal, it thus
indicated that it still considered the negotiations open. Since that request did not
specifically state that the June 9 offer was terminated , but asked for a "counter-
proposal," I think the Union was justified in considering that offer as still on the
table for discussion , at least as a starting point from which the parties could in good
faith attempt to close the gap between them . Hence, when. the Union suddenly
capitulated by accepting the June 9 offer (or reiterating it as its own counterproposal,
as Respondents now view it), it is patent that if Respondents were sincere in making
the June 9 offer and were willing to consummate an agreement on that basis, the
Union's action gave them that opportunity . On this point their answer displays a
significant inconsistency , for while in one breath they say they are not obligated
under Texas or general contract law to keep their offer open or to accept a counter-
offer in the same terms, they also plead that they are still ready to negotiate "those
or any other terms," and try to throw the blame on the Union for refusing to bar-
gain "unless respondents accept what the Union previously rejected," saying the
Union seeks "not negotiation , but compulsion of its whims on respondents." By
ignoring the Union 's capitulation (which can hardly be called a "whim") and re-
* N.L.R.B. v. Crompton-Highland Mills, Inc., 337 US. 217, 224 , 225; R . C. Can Company,
144 NLRB 210 (IR).
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fusing to grasp the ready-made chance to close a deal on their terms, and resorting
instead to a legal technicality to avoid that opportunity, Respondents plainly in-
dicated that they did not want to consummate a contract, but rather to avoid further
bargaining with the Union to that end, and was evidence of bad-faith bargaining.
The lack of good faith is further apparent from Respondents' ensuing request for
another meeting at which the Association deliberately submitted a formal journey-
man wage rate far below that of June 9 and even below the rate paid under the ex-
pired contract. This was an obvious step backward which Respondents' representa-
tives themselves treated as some sort of joke, well knowing the Union would reject
it, as it did .5 This action was well calculated to widen the gulf between the parties,
and could only have been taken to create some record evidence of a solidified im-
passe, rather than evincing a sincere effort to negotiate further to find means of
reconciling the parties' differences and reach an agreement.
In addition, Respondents had even earlier displayed bad faith and a desire to avoid
further dealing with the Union, when they deliberately bargained with their em-
ployees directly and individually and persuaded many of them by promises and
grants of benefits to abandon the strike. Thus, on Saturday, June 1, before the strike
started, when Shop Superintendent Marvin Ellisor of Industrial brought employee
W. F. Watson to the office of Mrs. Bruce Weaver, vice president of Industrial, to
secure expense money for a Monday trip to Louisiana to finish an installation job,
Watson mentioned to Ellisor, in the presence of Mrs. Weaver, the possibility that he
might be fined by the Union if he worked while the Union was on strike. Ellisor
opined that "this thing will be settled by Monday," but he suggested to Mrs. Weaver
that if Watson was fined, the Company should pay it, as well as a fine levied on
Watson in the past while he worked on an Industrial installation in Oklahoma.6
Mrs. Weaver agreed that Industrial should pay part of the Oklahoma fine, and also
said, "If he is fined, we will pay it." 7 That night when Ellisor brought some equip-
ment to Watson's home for the trip, Mrs. Watson asked Ellisor, "What if he is
fined?" and Ellisor assured her that "we" will pay half the Oklahoma fine, and if
Watson was fined again, "we" would pay Watson. On Monday morning, June 3,
when the strike began, Watson notified Weaver 'by telephone that he could not go
to Louisiana, and he joined the strike. On Tuesday, June 11, following the em-
ployees' rejection of the Association offer in which Watson participated, Weaver
called Watson at his home, saying he thought the "mess" was going to be settled,
and then said he was going back to work "open shop," and would mail his union-
shop card back to the Union, and invited Watson to come back to work if he wanted,
saying that if he did, "everything will be like it was, but after it is over with, you
come to work under my conditions." The agreement to protect Watson against any
financial action from the Union if he worked during the strike, and offer to pay his
prior fine (which Watson had not mentioned or solicited), were clearly calculated
to induce him to abandon participation in the imminent strike and support of the
Union in that activity, and not only coerced an employee in exercise of his rights in
violation of Section 8(a)( I) of the Act, but also were unlawful attempts to induce
an employee to abandon the Union and thus undermine its majority status in viola-
tion of Section 8(a) (5) and (1) of the Act .8 Other violations of the Act appear in
the following remarks and conduct of Respondents which I find on the basis of
credited testimony of employees named in each incident, and admissions of Bruce
Weaver, Henry F. Peebles, Jr., and Claude J. Harmon:
(1) Weaver's remark to employee Damon K. Meek on July 4 on the telephone
that Industrial would open its shop for business on the 5th, and he would like to
have his mechanics return and if they did, the "conditions would be same," but if
they waited to return later, they would come back under his "rules and regulations,"
and Weaver's similar offer to Meek about a week later, with the added offer that
if the men did return, he would "see to it" that the Union did not bother them. The
first solicitation was coercive in that Weaver tried to induce the men to return under
5 Credible testimony of Sharman, Harmon, and Smith clearly shows that Respondents
had discussed and agreed on the $3.15 offer beforehand, but did not expect the Union to.
accept it.
e Ellisor felt Industrial was responsible for the Oklahoma fine because it had erred in not
sending an apprentice to help Watson on that job, in accordance with the union contract.
7 It is clear that Mrs. Weaver was officially offering to protect Watson against retalia-
tion by the Union if he worked during the strike, for President Weaver had indicated that
if Watson returned to work and was fined, he would not have to pay it because Industrial
would insist that fines be waived , as part of any contract negotiated with the Union.
s Esti Neiderman and Uizela Eisner, co-partners, doing business as Star Baby Co., 140'
NLRB 678, W. R. Hall Distributor, et at., 144 NLRB 1285.
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 783
existing conditions , rather than those recently offered the Union , and also threatened
them with possible unilaterally changed conditions if they did not return at once;
it also evidenced his desire to operate without a union , in rejection of collective
bargaining. The second offer has a similar vice , and the added remark was a
coercive implied promise of protection of some sort against union retaliation if the
men returned to work nonunion.
(2) Weaver's remarks to employee Glenn D. Cougot on June 5, and to employee
Ennis W. Modisette about a week later, that the shop was !being opened up "non-
union," and they could return if they wanted to; 9 Weaver's additional remarks that
all other shops in Dallas and San Antonio were waiting to see what Industrial would
do during the strike, and would operate "nonunion if Industrial did, arfd that Modi-
sette could always get work at those shops if Industrial ran out of work. The first re-
mark showed intent to avoid recognition of the Union; the second did likewise, but also
offered Cougot the inducement of work in other nonunion shops if he came back
"non-union ," and also violated Section 8 (a) (1).
(3) Foreman Gerald Redman of Industrial told Cougot about June 12 that he
had talked to Weaver about the men returning to work under the same terms that
the Association had offered the Union, but without a union, and that Weaver wanted
to talk to the men about it. That evening about 10 strikers attended a meeting at
Weavers' home at which he said the shop would open the next morning because he
had to, and any man who wanted to return had a job. He said he would operate
without a union, but he could not offer them an immediate pay raise because he
did not know what the "circumstances would be," but they would work ."regular"
without any pay cut, and he would give them six paid holidays, and if business
picked up they could take his word for it that he would give them a raise. He also
showed the men a letter to the Union indicating that since Industrial had been
unable to reach an agreement with the Union , but still had to continue its business,
it would operate without a contract, and was returning the union-shop card which had
been displayed in the plant. When employee Ray Calfee, who had done most of the
installation work, asked how Industrial would handle it, Weaver said he thought he
would not have much trouble getting it done, because he could contract it out. In
discussing his inability to give any pay raise at the moment, Weaver supported his
argument with charts of lower wage scales for similar work in other cities, and said
Industrial had to fight that competition, as his present scale was higher than else-
where. Some workers brought up the question of graduated work scales offered
by the Association to the Union in recent negotiations, and Weaver said that if his
men came back to work, he would drop that. He also said the men would not have
to worry about fines by the Union. He then polled the men by show of hands to
find out who would return. After this meeting, 11 out of a work force of 17 men
returned to work. The mere meeting with strikers, without notice to their Union,
at which Weaver offered them jobs on a "nonunion" basis, with more paid holidays
than he had offered the Union, but without ,graduated wage scales, in effect promised
them a raise in the future, and assured them against fines by the Union, was uni-
lateral bargaining with men in open repudiation of the Union and in derogation of
its clear rights as' bargaining agent, including coercive promises of present and future
benefits and a threat to contract out some of the work, to induce them to work
nonunion, all of which amounted to coercion of employees and a clear refusal to
bargain with the Union, in violation of Section 8(a)(5) and (1).10
(4) On June 6 or 7, President Peebles of Southern called employee Lillard Korn,
a striker, at his home, and asked him what the employees were dissatisfied about.
Korn told him they wanted a raise in pay, with paid vacations, like the Union had
asked. Peebles told Korn he could not afford to pay the men any more, but asked
him if he would contact them and find out what they would accept. He also said
he wanted to talk to the employees in a group in the shop. On or about June 10,
Peebles again called Kom at his home to ask what the men wanted. Korn replied
they wanted the same as the Union had asked. Peebles said he would pay his men
$3.471/2 an hour, and give them five paid holidays, but that he was going to open
his shop for business , whether it was union or nonunion, and the men could return
if they desired. He also said that if the employees returned, and rejoined the Union
later, "they" would see that the employees did not have to pay any fine. That day or
6 Weaver's remark to the latter, when Modisette said he could not return under such
conditions but only if it was a union shop, as the Union would fine him heavily , that if he
came back there would be no fine, and if he rejoined the Union it would not,cost him any-
thing, is merely legitimate opinion , which Modisette disputed.
10 R.C. Can Company, supra ; Mitchell Concrete Products Co., Inc., 137 NLRB 504-506;
Comfort Springs Corporation, 143 NLRB 906.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
later that week, Peebles had a meeting with 8 or 10 striking employees in a cafe
near the plant. He asked them to speak up about their dissatisfactions. They com-
plained about the need for more tools, and asked for more pay plus paid holidays.
He replied that he would reopen the plant without a union, and if they came back
he would pay them $3.47'/2 an hour, but could not give them a raise beyond that at
the moment. He also said that if they did not" return, he would get his work done
even if he had to subcontract it to concerns in other cities. When he said they
could return, some said they might be fined by the Union if they crossed the picket
line, and at least one said he had been with the Union many years, and did not want
to leave it. Peebles replied that if any man returned to work open shop, he could
go back into 'the Union without a fine, and he felt certain that if the Association and
the Union agreed on a contract, they could agree ona waiver of any fines. About
a week after this meeting, Peebles called striker Creed H. Williams, and asked what
the employees wanted and intended to do. Williams repeated their demands, and
Peebles replied he could not spay what they asked, and would run "open shop." He
also asked Williams to get in touch with other strikers to find out what they would
take. Williams later reported back that they wanted the 5-cent raise plus five paid
holidays (which was what the Association offered on June 9) . Peebles was non-
committal, saying he had to speak through the Association, but that he was operating
`open shop." Shortly after this, all Southern employees but three returned to work.
Similar to Weaver's remarks, Peebles' statements evidence unlawful direct bargaining
with employees. in derogation of the Unions' rights, a clear intent to operate his
business without a union in renunciation of the collective-bargaining principle, and
unlawful offers of benefits and protection against union retaliation, as well as threats
of job loss, to induce them to return to work without a union, all in violation of
Section 8(a)(5) and (1).11
(5) Shortly after the strike started, a striking employee of Texas asked President
Harmon what he would do. Harmon said he would stay open. The man asked
if Texas would pay the men a 5-cent raise and five paid holidays. Harmon said
he would. This employee returned to work in the second week of the strike, and in
that same week, when four others returned, Harmon gave them all a raise to $3.471/2
an hour. After striking employees returned to Southern and Industrial, those em-
ployers paid them the same rate, and apparently added five paid holidays. Since
this occurred at or before the time Respondents refused to honor their June 9 offer
in those terms, or to accept them when proffered by the Union, the unilateral grant
of these terms directly to the men was palpably illegal form of individual bargain-
ing and deliberate bypassing of the Union, in violation of the Act.12
The totality of Respondents' conduct during the strike shows that, even before it
began and in anticipation of it, Industrial took unlawful action well calculated to
undermine -the Union's status, and in clear derogation of the collective-bargaining
principle, and that Industrial and Southern continued and increased such activity
and Texas joined in it during the strike while their Association went through the
motions of collective bargaining on their behalf and then on specious grounds
sought to find and declare an impasse chargeable to the Union. In these circum-
stances I find that, although the Union's strike warning before May 31 indicated an
initial economic motivation for the strike, it is inferrible that Respondents' unfair
labor practices which began as early as June 1 and were designed to undermine the
Union's status, were undoubtedly a motivating factor in the inception of the strike.13
Respondents argue that the strike was unlawful from the start because there is
no proof that the Union gave the statutory notice to State and Federal mediation
agencies required by Section 8(d) (3) of the Act before negotiations began. I think
this argument is without merit, for the Board has held that the notice requirements
and loss-of-status provisions of Section 8(d) do not apply to a strike which protests
an unfair labor practice over an economic matter. Mrs. Fay's Pies, Inc., 145 NLRB
495. I think the same rule should apply even if it is assumed here that the strike was
originally economic in nature, but later converted into an unfair labor practice strike.
11 The fact that Peebles' specific offers of wages and paid holidays were the same as that
offered to the Union, and rejected by the men on June 10, does not make the offer legiti-
mate, in view of the lack of a bona fide impasse and the other evidence indicating that
Southern was intent upon dealing with its employees directly and in derogation of the
Union. B.C. Can Company, supra (IR).
'2 Comfort Springs Corporation, supra; Mrs. Fay's Pie, Inc., 145 NLRB 495.
'8 Whether the strike began as an unfair labor practice strike in fact on June 3, or was
converted into one on or about June 10, the fact remains that after the 10th it can
properly be called an unfair labor practice strike , 'continued or prolonged in part by
Respondents' continuing unlawful conduct.
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 785
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with their business 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 thereof.
V. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices de-
scribed above, 1 shall recommend that Respondents be ordered to cease and desist
therefrom and to take certain affirmative action designed to effectuate the purposes
of the Act.
Having found that Respondents unlawfully failed and refused to bargain with the
Union as the statutory bargaining representative of their employees in the appropriate
unit found above, I shall recommend that Respondents be ordered to bargain, upon
request, with the Union as such representative and, if an understanding is reached,
to embody such understanding in a signed agreement. However, since Respondents
put into effect some provisions of their June 9 offer to the Union, I shall also recom-
mend that Respondent Employers shall maintain all substantial features of their
relations with their employees now in effect until a new agreement is reached by the
parties. Mrs. Fay's Pies, Inc., supra. As I have found that the strike which began
on June 3, 1963, was caused in part by Respondent's unfair labor practices and was
thus an unfair labor practice strike from its inception, I shall also recommend that
Respondents shall upon application offer to all their employees who went on strike
on June 3, 1963, and have not returned to work, reinstatement to their former or
substantially equivalent positions without prejudice to their seniority or other rights
and privileges previously enjoyed, and that said Respondents discharge, if necessary,
any replacements hired on or after June 3, 1963. I also recommend that Respondents
make such employees whole for any loss of earnings they may have suffered by reason
of Respondents' discrimination against them by payment to each of them of a sum of
money equal to the amount he normally would have earned as wages during the
period starting 5 days after the date on which he applies for reinstatement to the
date of Respondents' offer of reinstatement, less his net earnings, if any, during said
period, with interest thereon at 6 percent per annum, in accordance with the Board's
usual practice.'4
In view of the variety of Respondents' unfair labor practices, which manifest a
desire to thwart the fundamental principles of the Act, I shall recommend that a
broad cease-and-desist order issue.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All sheet metal employees and apprentices of members of Respondent Associa-
tion, exclusive of all supervisors as defined by the Act, constitute a unit appropriate
for purposes of collective bargaining within the meaning of Section 9(b) of the Act.
3. Since June 1, 1963, the Union has been and now is the exclusive bargaining
representative of all employees in the above unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By soliciting employees on and after June 1, 1963, to abandon a strike called
by the Union, through individual bargaining with employees, offers and unilateral
grants of benefits or changes in working conditions, offers of protection against union
discipline and threats of loss of jobs through subcontracting of work, and refusing
to accept or agree to its own contract proposals and submitting less favorable
proposals than those previously offered to the Union in negotiations, Respondents
have failed and refused to bargain in good faith with the Union, and have also
interfered with, restrained and coerced employees in the exercise of rights guaranteed
to them by Section 7 of the Act, and have thereby engaged in and 'are: engaging
in unfair labor practices affecting commerce within the meaning of Sections 8(a) (5)
and (1) and 2(6) and (7) of the Act.
5. Except as found above, Respondents have not engaged in any other unfair
labor practices as alleged in the complaint as amended.
It F. W. Woolworth Company, 90 NLRB 289 ; Ilia Plumbing & Heating Co ., Inc., 138
NLRB 716.
756-236-65-vol. 147-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
On the basis of 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 recom-
mend that the Respondents, Houston Sheet Metal Contractors Association ( Kitchen
Equipment Division ); Industrial Metal Fixtures , Southern Metal Manufacturing
Company, Inc., and Texas Metal' Equipment Co., their officers, agents , successors,
and assigns , shall:
1. • Cease and desist from:
(a) Refusing to bargain collectively in good faith with Local Union No. 54, Sheet
Metal Workers International Association , AFL-CIO, as the exclusive representative
of their employees in the appropriate unit consisting of all sheet metal employees
and apprentices of members of Respondent Association , exclusive of all supervisors
as defined in the Act.
(b) Refusing to accept or agree to its own contract proposals , or submitting less
favorable proposals than those previously offered to said Union in negotiations,
soliciting employees to abandon any strike called by the aforesaid Union and return
to work, by individual bargaining with employees , offers and unilateral grants to
them of benefits or changes in working conditions , or offers of protection against
union discipline ; provided , however, that nothing herein , shall require Respondent
Employers to vary or abandon any wage, wage rate, hour schedule, other condition
of employment, or other substantial feature of their relations with employees estab-
lished by them, except as otherwise specified in this Recommended Order.
(c) In any other manner interfering with , restraining , or coercing their employees
in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is designed to effectuate . the policies
of the Act:
(a) Upon request , bargain collectively with Local Union No. 54 , Sheet Metal
Workers International Association , AFL-CIO, as the exclusive representative of all
employees in the appropriate unit aforesaid with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and, if an understanding
is reached , embody such understanding in a signed agreement.
(b) Upon application , offer immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority , or other rights
and privileges previously enjoyed, to all employees who went on strike on June 3,
1963, and who have not already been reinstated to such positions , dismissing, if
necessary, any replacements hired by Respondents on or after June 3, 1963.
(c) Make whole said employees for any loss of pay suffered by them, in the man-
ner set forth in the section of this Decision entitled "The Remedy."
(d) Post at their respective plants and principal offices in Houston , Texas, copies
of the attached notice marked "Appendix ." 15 Copies of such notice , to be furnished
by the Regional Director for the Twenty-third Region , shall, after being duly signed
by Respondents ' representatives , be posted by each of them immediately upon re-
ceipt thereof ; and be maintained by them for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by Respondents to insure that
said notices are not altered , defaced , or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision , what steps Respondents have taken to comply herewith.ls
I further recommend that the complaint as amended be dismissed insofar as it
alleges that Respondents engaged in any unfair labor practices other than those
found above.
15In the event that this Recommended Order be 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 be enforced
by a decree o fa 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."
'la In the event this Recommended Order be 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 Respondents have taken to comply herewith."
HOUSTON SHEET METAL CONTRACTORS ASSN., ETC. 787
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, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Local Union No. 54, Sheet
Metal Workers International Association, AFL-CIO, as the exclusive representa-
tive of all employees in the bargaining unit described below with respect to
rates of pay, wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody it in a signed contract. The bar-
gaining unit is:
All sheet metal employees and apprentices of members of the Houston
Sheet Metal Contractors Association (Kitchen Equipment Division), ex-
cluding all supervisors as defined in the Act.
WE WILL NOT refuse to accept or agree to our own contract proposals, or.
submit less favorable proposals than those previously offered to the above-
named Union in negotiations, solicit our employees to abandon any strike called
by said Union and return to work, by individual bargaining with employees,
offers and unilateral grants to them of benefits or changes in working condi-
tions, or offers of protection against union discipline; provided, however, that
we are not required to vary or abandon any wage, wage rate, hour schedule,
other condition of employment, or other substantial feature of our relations
with employees established by us, except as otherwise specifically provided in
this notice.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed to them by Section 7 of the Act.
WE WILL, upon application, offer immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, to all our employees who went
on strike on June 3, 1963, and who have not already been reinstated to such
positions, dismissing, if necessary, any replacements hired by us on or after
June 3, 1963, and will make such applicants whole for any loss of pay suffered.
by reason of our refusal, if any, to reinstate them within 5 days after application.
All our employees are free to become, remain , or refrain from becoming or re-
maining, members of the above-named Union or any other labor organization.
HOUSTON SHEET METAL CONTRACTORS ASSOCIA-
TION (KITCHEN EQUIPMENT DIVISION),
Employer.
Dated------------------- By----------.---------------------------------
(Representative) (Title)
INDUSTRIAL METAL FIXTURES,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
SOUTHERN METAL MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
TEXAS METAL EQUIPMENT CO.,
Employer.
Dated------------------- By------------------------------------------Representative) (Title)
NOTE.-We will notify the above-designated employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 271, if they have any questions concerning this notice or com-
pliance with its provisions.
Winn-Dixie Stores, Inc. and Meat Cutters , Packinghouse and
Allied Food Workers Union , Local 433, Amalgamated Meat
Cutters and Butcher Workmen of North America , AFL-CIO.
Case No. 12-CA-3653. June 26, 1964
DECISION AND ORDER
On December 4, 1963, Trial Examiner Reeves R. Hilton 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. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter, the Charging
Party and the General Counsel filed exceptions to the Decision and
supporting briefs.
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 McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the modifications noted below.
The Trial Examiner found that Respondent violated Section
8(a) (5) of the Act by discontinuing its cheese processing and packag-
ing operation on or about March 25, 1963, without notifying or bar-
gaining with the Union as the statutory bargaining representative of
its employees in the appropriate unit. The Trial Examiner further
found that the Respondent's failure to do so was part of a continuous,
unlawful refusal to bargain which began October 25, 1961, when the
Respondent first refused to recognize the Union, and extended through
and beyond the period covered by the charge in this case, while the
Respondent was seeking review of the Board's earlier unit determina-
tion, findings of violations, and bargaining order.'
1 See Winn-Dixie Stores, Inc., 138 NLRB 1355, enfd. 324 F. 2d 502 (C.A. 5). In that
case the Board found that the Respondent violated Section 8(a) (1) and ( 5) by its acts of
interrogation , threats, interference, and coercion , and by its refusal to bargain with the
Union as the certified representative of its employees in a certified unit. The Board there
rejected the Respondent 's challenge to the appropriateness of the unit.
147 NLRB No. 89.