Montgomery Ward & Co., Inc.

National Labor Relations Board - Board DecisionsDec 21, 1966

162 N.L.R.B. 294 (N.L.R.B. 1966)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Delgado also testified to a conversation he had with Lee Barker, president of the Union, about a month after the charge was filed. His testimony with respect to this conversation was as follows: He [Barker] said, "Ernie, how come you got a complaint against Joe?" I said, "What you mean, how come, when he stop my job just for nothing, and I was going to be the steward up there in that job?" He says, "Oh, forget all about it, and we can send you to work any place. If you drop the charge, I send you to a job." I say, "I am not going to drop the charge. I don't care if I lose or win. Don't talk to me more about this complaint, because I am not going to throw the charge out," I told him. Coney testified that he "probably did ask" Delgado to drop the charge against the Respondents, but categorically denied that he offered him a job or employ- ment. He further testified that he remembered giving Delgado his card with his phone number which was unlisted, but that it was at a time when Delgado was a shop steward, that "it might have been a year before this case come up." Barker denied that he had any conversation with Delgado about the charge and that he promised Delgado a job if he would drop the charge. There is no objective evidence which would tend to support Delgado's testimony or discredit that of Coney and Barker.8 All three were interested parties, Delgado as the Charging Party, and Barker and Coney as officials of the Union. Inasmuch as the General Counsel has the burden of proof, it is concluded that he has not proved by a preponderance of the evidence the allegation in paragraph 13 of the complaint that Respondent Union unlawfully promised Delgado employment if he would withdraw the charge he filed in this proceeding. On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The General Counsel has failed to prove by a preponderance of the evidence the allegation that Respondents violated Section 8(b)(2) and (1)(A) of the Act by causing HRH to discharge Delgado. 2. The General Counsel has failed to prove by a preponderance of the evidence the allegation that Respondent Union violated Section 8(b)(1)(A) of the Act by unlawfully promising Delgado employment if he would withdraw the charge he filed in this proceeding. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 9 While the record discloses that Delgado was not dispatched to a job by Respondent Union after his discharge by HRH until October 28. 19G5, there Is no showing that he would have been entitled to have been dispatched prior thereto . There is no contention, nor was it alleged , that Respondent Union discriminatorily failed to dispatch him earlier. Further, there is no showing that he was not due to be dispatched on October 28. Montgomery Ward & Company, Inc . and Truck Drivers, Oil Drivers, Filling Station and Platform Workers, Local 705, I.B. of T. Case 13-CA-7470. December 21, 1966 DECISION AND ORDER On September 9, 1966, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and vas 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 162 NLRB No. 27. MONTGOMERY WARD & CO. 295 Examiner's Decision. In so doing, the Trial Examiner granted the General Counsel's Motion for Summary Judgment, after duly con- sidering the Respondent's contentions in response to an Order To Show Cause why the motion should not be granted. The Respondent has now filed exceptions to the Trial Examiner's Decision and a brief in support of exceptions, the General Counsel has filed an answering brief, and the Charging Party has filed a brief in support of the said Trial Examiner's Decision. Pursuant to the provisions of 'Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Jenkins, and Zagoria]. The Board has considered the entire record in this case, including the Trial Examiner's Decision, the exceptions, and briefs, and hereby adopts the Trial Examiner's recommendations and his conclusion that all material issues have been decided by the Board in the decer- tification proceeding, Case 13-RD-673, or are admitted, and there- fore there are no matters requiring a hearing.' [The Board adopted the Trial Examiner's Recommended Order.] 1 The Respondent 's request for oral argument is denied as the pleadings herein adequately set forth the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge of unfair labor practices filed on May 26 , 1966 , by Truck Drivers, Oil Drivers , Filling Station and Platform Workers , Local 705 , I.B. of T., the Union , against Montgomery Ward & Company , Inc., Chicago , Illinois, the Respondent , the General Counsel of the Board caused his complaint and notice of hearing to be issued on July 1, 1966, alleging the commission of unfair labor practices by the Respondent in violation of Section 8(a)(1) and (5) of the Act. On July 8, 1966 , the 'Respondent duly filed its answer in which it admitted cer- tain allegations of the complaint and denied others, including a denial of the com- mission of unfair labor practices. - On July . 15, 1966 ,' counsel for the General Counsel filed a Motion for Summary Judgment , supported by documents , and containing a request that official notice be taken of the Board's decision in the case of Montgomery Ward and Vincent J. Fra- gasso, Case 13-RD-673 . Official notice is taken of the entire RD proceeding.' Upon an Order To Show Cause issued by Trial Examiner Charles W. Schneider as to whether the Motion for Summary Judgment should be granted the parties filed responses , supported in the case of the Respondent by affidavits and other docu- ments, which I have considered. THE ISSUES Broadly stated , the basic issue is the extent of the duty of an employer who has voluntarily recognized a union on the basis of a showing by signed designation cards that the union represents a majority of the employees in an appropriate unit, 1 The Board 's decision , unpublished , dated June 16, 1966 , is partially reported at 62 LRRM 1641 The Board 's findings and conclusions in that proceeding are a predicate for the Motion for Summary Judgment and the Respondent ' s opposition thereto Disposition of questions posed by the parties herein require consideration of issues raised in the RD case For those reasons official notice is taken of the entire RD proceeding See also Section 9(d) of the Act. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to continue that recognition when the union's majority status is shortly thereafter lost without fault of the employer, or is seriously challenged by employees, before the negotiation of a collective-bargaining contract. More specifically, the issue before me on the pending motion is whether there are any material unresolved issues of fact requiring an evidential hearing. THE FACTS2 Among other enterprises the Respondent operates a group of auto service sta- tions or centers at various locations in the Chicago, Illinois, area, among them one at 77 Old Orchard Road, Skokie, Illinois-the only location involved in the instant proceeding. On January 3, 1966 , in the course of an organizing campaign by the Teamsters Union among the employees at these service centers, Local 705 filed a charge alleging that the Respondent had committed unfair labor practices at four service centers, including that at Old Orchard, or Skokie.3 Some days thereafter a union representative informed a representative of the Respondent that union adherents were being discharged ; the union representatives threatened to picket the auto cen- ters unless the Respondent agreed to recognize the Union. On January 11, 1966 , a meeting was held between representatives of the Union and of the Respondent. In response to the Union's demand for recognition the Respondent 's representatives questioned the appropriateness of the unit requested by the Union and suggested that the Union file a petition with the Board for certification. The union representatives declined that suggestion, stating that dis- charges of union adherents had intimidated employees, and that unless recognition was extended picketing would be instituted. The Respondent's representatives denied the commission of unfair labor practices. However, after some further discussion the parties agreed to separate appropriate units for each center and the Respond- ent agreed to recognize the Union if a check of current designation cards disclosed that the Union represented a majority of the employees. Pursuant to this accord, the Union, on or about January 17, 1966, submitted to the Respondent signed authorization cards from a majority of approximately 28 employees in the Old Orchard unit. Concurrently with its submission of cards to the Respondent the Union filed a request with the Regional Director for withdrawal of its unfair labor practice charge of January 3. The Respondent checked the signatures on the authorization cards against pay- roll records. Based upon this showing, on or about February 11, 1966, the Respond- ent executed and forwarded to the Union a recognition agreement in which the Respondent recognized the Union as the sole and exclusive bargaining agent of its timecard employees at the Old Orchard location with certain exclusions described hereinafter.4 Vincent J . Fragasso is an employee of the Respondent in the appropriate unit. According to Fragasso's affidavit attached to the Respondent's response to the Motion for Summary Judgment , after learning of the recognition on February 11, he spent the weekend securing signatures of employees to a petition in opposition to the Union ; securing, as he remembers , the signatures of "15 or 16 men"-more than a majority of the approximately 28 employees in the unit . On the following 2 Unless otherwise specified the factual findings herein are taken from admissions in the pleadings, from material submitted by the parties in connection with the Motion for Sum- mary Judgment , and the proceedings in the Montgomery Ward and Vincent Fragasso case, Case 13-RD-673. 3This charge alleged violations of Section 8(a)(1) and (3) of the Act by a "com- prehensive scheme" of the Respondent to prevent employees at the four centers, including Old Orchard, from joining or assisting the Union, ". . . including but not limited to," the discharge of several employees at two of the centers (Evergreen Park and Harvey), and by threats of discharge at two centers (Evergreen Park and Sandhurst). No specific in- cidents were alleged at the Old Orchard location. The Respondent deems this a material or controlling fact In my view it is not. * The agreement was signed on behalf of the Respondent by Richard C Scheidt, the Re- spondent's labor relations director Though there is a line for signature by the Union, there is no union signatory The Union did not return a signed copy to the Respondent. Since the agreement does not call for any action by the Union, the Union's failure to sign the document or to return a copy to the Respondent does not appear to be significant In any event the Union's subsequent actions (related hereafter) indicates its acceptance of the agreement. MONTGOMERY WARD & CO. 297 Monday, February 14, 1966, Fragasso filed a formal decertification petition with the Regional Director asserting that the Union was no longer the majority repre- sentative. This is Case 13-RD-673. On or about the same day, February 14, or on or about June 22, 1966, or both, the Union requested the Respondent to bargain. The Respondent declined to bargain.5 On March 3, 1966, pursuant to Section 9(c) of the Act, a hearing was held before a Hearing Officer of the Board with respect to the decertification petition. The Respondent, the Union, and Petitioner Fragasso appeared, either by counsel, representatives, or pro se, and were afforded full opportunity to present- evidence. At this hearing the Union contended that the petition for decertification should be dismissed, on the ground that at the meeting of January 11 between the Union and the Respondent, agreement was reached for union recognition on the basis heretofore stated, in connection with the withdrawal of the unfair labor practice charges. The Union submitted uncontradicted testimony in support of those factual allegations. The Respondent offered no evidence. On this factual premise the Union contended before the Hearing Officer that where union recognition was accorded in the settlement of unfair labor practice charges, Board law entitled the Union to a reasonable time in which to negotiate a contract, thus requiring dismissal of the decertification petition as untimely. Thereafter, on March 21, 1966, the Regional Director, rejecting the Union's contentions , issued a Decision directing an election upon the decertification petition. The Union then filed a motion for reconsideration , based on an intervening decision of the Board in the case of Keller Plastics Eastern, Inc., 157 NLRB 583. The Regional Director thereupon vacated his Decision and Direction of Election and transferred the case to the Board for determination. On June 16 , 1966, the Board handed down its Decision and Order, in Case 13-RD-673 in which it dismissed the decertification petition. The Board said, in part: The Union contends that it attained bargaining rights under a private settle- ment of unfair labor practices, and that it should be accorded a reasonable time in which to bargain, similar to that which the Board has granted in Keller Plastics, and in Universal Gear Services Corp., 157 NLRB 1169. The Employer has filed no brief, nor has the Petitioner. In the interest of encouraging settlement of unfair labor practices and achieving stability in bargaining relationships, we think that the bargaining status here accorded the Union should be given a reasonable chance to succeed. We note that the Union withdrew its unfair labor practice charge and estab- lished its majority to the satisfaction of the Employer. It cannot be said that the 3 days which then ensued before the filing of the decertification petition was a reasonable period of time in which to negotiate a contract. Accordingly, we shall dismiss the petition. In the Keller Plastics and Universal Gear cases, referred to in the RD decision, the Board held, in sum, that a bargaining representative status acquired as a result of voluntary recognition upon a valid showing of majority is entitled to a protected status for a reasonable period of time, somewhat similar to the protected status resulting from Board certifications, Board remedial orders in unfair labor practice 5 The Respondent denies that the Union made a request to bargain before June 22 The complaint alleges in paragraph 9 that, Since on or about February 14, 1966, and continuing to date, particularly on or about June 22, 1966, the Union has requested, and is requesting, Respondent to bargain collectively . . . . The Respondent's answer denies the allegation that the Union requested bargaining "prior to June 22, 1966" ; otherwise it admits the allegations of the paragraph. The com- plaint further alleges (paragraph 10) that, Since on or about February 14, 1966, and continuing to date, particularly on or about June 24, 1966, the Respondent has failed and refused, and continues to fail and refuse, to meet, negotiate, discuss and/or to bargain in good faith with the Union as the exclusive representative of all the employees in the unit . . . . The answer, admits this allegation of the complaint, stating in justification theieof the filing of the decertification petition and the asserted question concerning representation raised thereby. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases, and settlement agreements . In such cases an intervening loss of numerical majority is immaterial. In the meantime , on May 26, 1966 , the Union filed the instant charge of refusal to bargain , on which on July 1 , 1966 , the General Counsel issued the pending com- plaint. The Respondent 's answer, duly filed , admits all essential factual allegations of the complaint except , as noted in footnote 5, supra, that the Respondent denies that the Union made any request to bargain prior to June 22. The answer also denies the Union's representative status and the commission of unfair labor prac- tices. As an affirmative defense the Respondent's answer states that: its refusal to bargain . was based upon the question of represen- tation posed by the pending of said decertification petition and the fact that a majority of the employees indicated thereby that they did not in fact, desire the union to [represent] them. The General Counsel thereafter filed his Motion for Summary Judgment on the ground that there are no genuine issues of material fact, and that the allegations of the complaint are established on the record as a matter of law. Ruling on the Motion for Summary Judgment As we have seen , in the representation case the Board dismissed the petition to decertify the Union , stating, on the basis of its decisions in the Keller Plastics and Universal Gear cases, supra, that the bargaining status accorded the Union by the Respondent should be given a reasonable chance to succeed , and that the 3 days which intervened between the date of the Respondent's recognition of the Union and the filing of the decertification petition was not a reasonable period of time in which to negotiate a contract. In its response to the Motion for Summary Judgment the Respondent opposes the motion , and contends that it is entitled to a factual hearing to establish material facts. The facts which the Respondent would thus establish are stated by the Respondent to be the following: (1) That the Union is not the representative of the employees. (2) That the refusal to bargain was in good faith. (3) That there was no agreement to recognize the Union as part of or in return for a private settlement or withdrawal of the unfair labor practice charges. The Respondent contends that the Board 's decision in the representation case was expressly based on the Union's assertion that there had been such a private settle- ment. Attached to the Respondent's response to the Motion for Summary Judgment are affidavits of two officials of the Respondent to the effect that the agreement concerning the card check was not related to, and not in consideration of, with- drawal of the charges. The Union' s Representative Status Whether the Union is the legal collective-bargaining representative of the employ- ees in the appropriate unit, and whether the Respondent is required to bargain with it as such , was necessarily decided by the Board in the representation proceed- ing. Thus, Section 9(c) (1) of the Act provides, inter alia, that the Board shall direct an election upon a representation petition ( including a decertification peti- tion ), if the Board finds that a question of representation exists.6 The Board found here that no question concerning representation existed. The Respondent 's assertion that the Union is not the representative of the employees is therefore contrary to the Board's determination arrived at after hearing on the issue, and constitutes an attempt to relitigate here the correctness of the Board's action. This may not be done before me. Relitigation of Issues Previously Decided In the absence of newly discovered or previously unavailable evidence , issues which were decided or could have been raised in a related representation case may e Section 9(c) (1) provides, in part, that after the filing of such a petition, . . . the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice . . . . If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. MONTGOMERY WARD & CO. 299 not be relitigated in an unfair labor practice proceeding based upon the Board's order in the representation matter. Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146; United States Rubber Company, 155 NLRB 1298; Producers Inc., 133 NLRB 701, 704; Acme Industrial Products, Incorporated, 158 NLRB 180; cf. Sagamore Shirt Company (Amalgamated Clothing Workers), 365 F.2d 898 (C.A.D.C.). As the Board said in the Producers case: It is the policy of the Board not to allow a party to relitigate in a complaint proceeding such as this one the legal effect of matters which the party has already litigated and the Board has decided in a prior representation proceeding. This is not to say that the Respondent is precluded from testing the validity of the Board's conclusions. This it may do in an enforcement or review action before the Circuit Court of Appeals in the event the Board issues an order in this com- plaint proceeding requiring the Respondent to bargain with the Union. The record made before the Board here and in the RD proceeding will be before the court for evaluation. See Section 9(d) of the Act. The Respondent may also request the Board to reconsider and review its determination in the representation case-either independently or in connection with any exceptions which may be filed to this Decision. However, at the present stage of the proceedings, the findings and dis- position made by the Board in Case 13-RD-673, are the law of the case and are binding on me. The Alleged Private Settlement The foregoing comment would be true even if the Respondent were correct in its assertion that the Board "expressly based its Decision" on acceptance of the Union's contention that recognition was part of a "private settlement of unfair labor practices." (Response p. 3.) For if the Board so found it would not be within my province to find to the contrary. However, I do not construe the Board's decision as apparently the Respondent does. In the first place, such a reservation by the Board would not seem to be consistent with the Keller Plastics and Universal Gear cases, cited by the Board as authority in the RD decision. Neither case involved the settlement or withdrawal of unfair labor practice charges in connection with the recognition? Secondly, I do not understand the Board's language in the RD decision to imply that the existence of an agreement for settlement of the unfair labor charges was an essential predicate of the decision. True, the Board adverted to the Union's asser- tion as to a private settlement of the charges, but this does not make agreement therefor a prerequisite of the decision. As I interpret its action, the Board was doing no more than acknowledging the Union's argument. The Board's purpose, as reflected in the RD decision, is to encourage amicable resolution of unfair labor practice charges and to promote stability in bargaining relationships. Effectuation of that policy does not require an agreement to exchange recognition for withdrawal of charges, or vice versa. If relationship were required it would be enough, in my view, that (as was the situation here) the charges be withdrawn in connection with the recognition. Evidence which the Respondent would offer to establish that the recognition was not in fact part of a settlement of the charges is therefore not material. However, even if it were ordinarily material, such evidence would not be receiv- able at this stage of the proceedings, for the reason that it is not newly discovered or previously unavailable. The circumstances of the recognition were an issue in the representation hearing. The Union's contention that the agreement for recogni- tion upon a showing of majority was "part of an overall settlement which resulted in withdrawal of the charges," was clearly stated at that hearing.8 The Union pre- sented evidence to that effect. The Respondent offered none. The evidence which the Respondent now tenders as material on that issue was available at that time. 7 In Keller Plastics the Board found four types of situations in which bargaining status should be protected for a reasonable period of time: (1) Board certifications; (2) Board orders; (3) settlement agreements; and (4) voluntary recognition on a valid showing of majority. The Board's decision does not suggest any distinction between a Board-approved settlement and a private settlement in this regard . Thus settlement situations and vol- untary recognition situations are separate and independent categories. 8 Transcript of hearing, Montgomery Ward and Vincent Fragasso, Case 13-RD-673, page 14. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's brief to the Regional Director after the hearing specifically averred that the Respondent's representative agreed to recognition of the Union on a card- check, "if the union would drop its, unfair labor practice charges" (page 2); a posi- tion reiterated in the Union's later brief to the Board. (Page 2.) Therefore, apart from the question of its materiality, the evidence which the Respondent would now adduce with respect to the nonexistence of the asserted reciprocal agreement is inadmissible because not offered in the representation pro- ceeding, despite full knowledge at that time of its existence and of the issue on which it bears. The Respondent's Good Faith The Respondent also contends that it is entitled to a hearing on the question of whether its refusal to continue recognition was in "bad faith"-an issue not litigated or decided in the representation proceeding. The burden is on the General Counsel to establish that the Respondent refused to bargain in good faith within the mean- ing of the statute. The facts establish such a refusal here. The Respondent has admitted the allegations of the complaint to the effect that it has refused to bar- gain "to date," and "particularly on or about June 24, 1966." This was after the issuance of the Board's decision in the representation case on June 16. In the cir- cumstances perhaps a refusal to bargain with the Union during the period between the filing of the decertification petition and the Board's decision might have been in good faith-an issue not necessary to resolve. However, after the Board's dismissal of that petition, the Respondent could no longer have had any good-faith doubt as to the Union's representative status. Having knowledge of the Board's decision, the Respondent's admitted refusal to accord the Union the requisite recognition and to bargain with it was in violation of the Act, regardless of the Respondent's perhaps genuine belief as to legal correctness of its action. A finding that a "refusal to bar- gain was based upon a desire to dissipate a union majority" (Respondent's Response p. 6), is not an essential premise to a finding of violation of Section 8(a) (5) in a refusal to recognize a union, where there is a current Board determination of the union's representative status. Respondent's admissions thus leave no relevant issue to be litigated in this respect.9 "Retroactive" Application of Keller Plastics As further ground for the need of another hearing, the Respondent asserts that the Keller Plastics decision represented a change in the law, and that it would be "manifestly unjust to deprive the Respondent of its day in court on the basis of a retroactive application of Keller Plastics." (Response, p. 5.) The Respondent has not indicated whether it would present any evidence at a hearing in this connection, and if so what evidence. The Respondent's position cannot be sustained. It has been seen that prior to the issuance of the Keller Plastics decision, the Union argued that governing Board precedent embodied the principle of law subsequently stated in Keller. The Respondent was thus made aware in the representation proceeding of the precise legal point on which it now apparently wishes to present matter in rebuttal. If, as the Respondent suggests, it refrained from proffering such material at that hearing, "based upon its understanding of the then extant law" (Response, p. 5), this was a matter of the Respondent's choice, and at its risk. A failure to submit See Cone Brothers Contracting Co v N L IZ B , 235 F 2d 37. 41-42 (C A 5), in which the court said : Since the Employer, deeming the certification invalid, declined altogether to bargain in good faith, this ultimate rejection by us of the claim of invalidity of the certifica- tion, automatically affirms the Board's basic finding of a violation and requires en- forcement of the affirmative order to bargain. The refusal to bargain was asserted in the genuine belief that the election was invalid, but, as we have held, this mistaken belief does not, cannot, excuse the Em- ployer from the consequences of this basic violation of the Act t t L i ! b The unfair labor practice was the outright, final refusal to bargain under the genuine, though mistaken, idea that this was [the Employer's] legal right This was a cal- culated risk which it took apparently with full consciousness of the consequences if it were wrong. MONTGOMERY WARD &, CO. 301 matter bearing on clearly stated issues, in reliance upon the belief that the under- lying legal principles urged are unsupported by or contrary to governing precedent, is not a ground for later reopening of the hearing in order to present such matter if the judgment turns out to be adverse . But even if it were adequate ground, the Respondent has not indicated what , if any, evidence or other material it would adduce in this regard at another hearing beyond what it has already offered as described above. Other Defenses The remainder of the Respondent 's response to the Motion for Summary Judg- ment is devoted to argument to the effect that Keller Plastics is distinguishable from the instant case. Those are observations to be directed to the Board, whose representation decision indicates that it deemed Keller applicable. Conclusion It is thus seen that all material issues have been decided by the Board, or are admitted . There are therefore no matters requiring a hearing before a Trial Exam- iner . Accordingly the General Counsel 's Motion for Summary Judgment is granted. On the basis of the pleadings and the above conclusions I make the following further: FINDINGS 1. JURISDICTION AND LABOR ORGANIZATION It is admitted in the answer , and therefore found , ( 1) that the Respondent is engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act; and ( 2) that the Union is a labor organization within the meaning of the Act. II. THE APPROPRIATE BARGAINING UNIT It is alleged in the complaint and admitted in the answer, and therefore found, that all employees of the Respondent , employed at its auto service station located at 77 Old Orchard Road , Skokie, Illinois, excluding the manager , assistant manager, sales people , guards, professional and supervisory employees as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act.10 M. THE UNION 'S REPRESENTATIVE STATUS On the basis of the findings heretofore made , it is found that on or about Febru- ary 10, 1966 , a majority of the employees of the Respondent in the appropriate unit designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent . At all times since February 10, 1966, the Union has continued to be the collective -bargaining representative of such employees. IV. THE REQUEST TO BARGAIN AND THE REFUSAL In further accord with allegations of the complaint admitted in the answer, it is found that ( 1) on or about June 22, 1966 , and continuing to date the Union has requested and is requesting the Respondent to bargain collectively as the exclu- sive representative of employees in the appropriate unit; (2 ) since on or about February 14, 1966 , and continuing to date, particularly on or about June 24, 1966, the Respondent has failed and refused , and continues to fail and refuse , to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. . By thus refusing to bargain the Respondent has interfered with , restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and ( 5) and 2(6) and (7) of the Act. io There is some difference in language between the unit described in the complaint and that described in the Recognition Agreement However , they appear to be the same in content The complaint , the answer , and the arguments made by the parties on the Motion for Summary Judgment assume that the two units are the same. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings and conclusions I recommend that the Board issue the following: ORDER Montgomery Ward & Company, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Truck Drivers, Oil Drivers , Filling Station and Platform Workers, Local 705, I.B. of T ., as the exclusive bargaining representative of the employees in the appropriate bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain collectively with Truck Drivers, Oil Drivers, Filling Station and Platform Workers, Local 705, I.B. of T., as the exclusive representative of the employees in the appropriate unit and , if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its auto service station located at 77 Old Orchard Road, Skokie, Illinois, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for Region 13, after being duly signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places , including all places where notices to employ- ees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by . any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.12 "In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "Recommended Order of a Trial Examiner" In the notice. In the further event that the Board 's Order is enforced by a decree of a 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 " ' In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify the Regional Director for Region 13, in writing , within 10 days from the date of receipt of this Order , what steps the Respondent has taken to comply herewith." 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Truck Drivers, OR Drivers, Filling Station and Platform Workers, Local 705, I.B. of T ., as the exclusive collective-bargaining representative of all our employees in the appropriate bargaining unit described below: All employees at our auto service station located at 77 Old Orchard Road, Skokie, Illinois, excluding the manager , assistant manager, sales people, guards , professional and supervisory employees as defined in the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the exercise of their rights guaranteed in Sec- tion 7 of the National Labor Relations Act. . WE WILL bargain collectively with the said Truck Drivers Union as the exclusive collective-bargaining representative of the appropriate unit and, if an understanding is reached , embody such understanding in a signed agreement. SYLGAB STEEL & WIRE CORP. 303 All our employees are free to join, assist , or support the said Truck Drivers Union or any other labor organization. MONTGOMERY WARD & COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 828-7570. Sylgab Steel & Wire Corp . and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America . Case 29-CA1-191. Decen2- ber 01, 1966 DECISION AND ORDER On February 9, 1966, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged 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 Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter the General Counsel filed exceptions and a supporting brief.' The Respondent filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, as modified herein. 1. The Trial Examiner found, and we agree, that Respondent by the conduct of its foreman, J. Gimmi, and statements of its president, 'A letter adopting and relying upon the exceptions and brief of the General Counsel was filed by the Charging Party. 162 NLRB No. 30.