H. G. Hill Stores, Inc.

In the Matter of H. G. HILL STORES, INC. and WAREHOUSE AND DISTRI- BUTION WORKERS UNION, LOCAL 207, INTERNATIONAL LONGSHORE- MEN'S AND WAREHOUSEMEN'S UNION, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS' Case No. C-2467.Decided April 28,1943 DECISION AND ORDER On December 23, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. The Union has not excepted to the findings and recommendations of the Trial Examiner. During the hearing the Trial Examiner made sev- eral rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner, and finds that no prejudicial error was committed. The rulings are hereby af- firmed. The Board has considered the Intermediate Report, the ex- ceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the qualification noted below. While the evidence clearly sustains the Trial Examiner's conclusion that the respondent has failed to bargain in good faith, we do not concur in the Trial Examiner's finding that the respondent has unlaw- fully refused to bargain since April 9, 1942. in our Decision and Direction of Election issued March 17, 1942, we found that a question had arisen concerning the representation of employees of the respond- ent."' That question was not determined until April 28, 1942, when' we certified the Union as the exclusive representative of said em- ployees.2 We therefore do not find that the respondent's refusal i See infra footnote 1 of intermediate report. '- Matter of H. G Hill Stores , Inc Warehouse and Local 2-7, International Longshore- men's and Warehousemen's Union, affiliated with the C. I. 0, 39 N L' R B. 874 2 Matter of H. G Ihll Stores, Inc., Warehouse and Local 2-7, International Longshore- men's and Warehousemen's Union, affiliated with the C. I. 0., 40• N: L. R. B. 959. 49 N. L. R. B., No. 25. 184 H. ^G. BILL STORES, INC. 185 to negotiate with the Union on or about April 9, 1942, constituted a violation of the Act. We agree, however, with the Trial Examiner's finding that on May 26, 1942, Penick told the employees that he would not sign'a contract with the Union ; and we find that by this declaration the respondent first manifested its unwillingness to bargain with the Union. On the basis of this declaration and the respondent's-subse- quent conduct as revealed by the 'entire record, we find that since May 26, 1942, the respondent has refused to bargain collectively with the Union, within the meaning of Section 8 (5) of the Act. r ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , H. G. Hill Stores, Inc., New Orleans, Louisiana, its officers; agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Warehouse and Distribu- tion Workers Union, Local 207, International Longshoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations , as the exclusive representative of all employees of the respondent employed at its warehouse, including truck drivers and helpers, porter, yardmen, and carpenter, but excluding clerical workers, supervisory employees, any persons having, the right to hire or discharge, and checkers, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form, loin, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2: Take the following action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Warehouse and Dis- tribution Workers Union, Local 207, International Longshoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all employees of the respondent employed at its warehouse, including truck drivers and helpers, porter, yardmen, and carpenter, but excluding clerical workers, supervisory employees, any persons having the right to hire or discharge, and checkers, with respect, to rates of pay, wages, hours of employment and other conditions of employment; 186 DECISIONS OF'NA.TIONAL LABOR RELATIONS BOARD (b) Post immediately in conspicuous places throughout its ware- house, at New Orleans, Louisiana, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the con- duct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order'; aid (2) that the respondent will take the affirm- ative action set forth in paragraph-2 (a) of this Order; (c) Notify the Regional Director for the Fifteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IS INTERMEDIATE REPORT Mr. Fontaine Martin, Jr., for the Board. Baldwin, Haspel, Molony & Lang, by Mr.- Sananel Lang, and Jones, Flanders &. Waechter, by Mr. A. J. TVaechter, Jr., all of New Orleans, La, for the respondent. Mr. Howard Goddard, of New Orleans, La, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed November 4, 1942,2 by Warehouse and Dis- tribution Workers Union, Local 207, International Longshoremen's and Ware- housemen's Union, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the,Regional Director for the Fifteenth Region, (New Orleans, La.) issued its complaint dated November 11, 1,942, against H. G. Hill Stores, Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act.. With respect to the unfair labor practices the complaint as amended at the hearing alleged in substance that: (1) on or about April 9, 3942, and at all times thereafter, the respondent refused to bargain collectively with the Union, although prior to that time the Union had`been designated as collective bargain- ing agent by a majority of the respondent's employees in an appropriate unit ; (2) the respondent on or about May 26, 1942, informed its warehouse employees that it would never sign a contract with the Union, and that the negotiations then being carried on by the respondent with the Union were only a, subterfuge and would never lead to a genuine collective bargaining agreement; (3) during the course of negotiations with the Union, and without notice to the Union, the respondent on or about August 14, 1942, granted a general wage increase to all of its warehouse employees; (4), on various occasions from February 27, 1942,- to the date of the complaint, during the course of negotiations with the Union, and without notice to the Union, granted individual wage increases to some or .all of its warehouse employees; and (5) the respondent by the foregoing acts interfered with, restrained, and coerced-its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. 1 The name of the Union in the caption (pare 1841 was corrected by motion at the hearing. 2 The original charge was filed August 31, 1942. H. G. HILL STORES, INC. 187 On November 27, 1942, the,respondent filed its answer, denying that it had committed the unfair labor practices alleged in the complaint. Affirmatively the answer alleged that the respondent had bargained collectively with the Union, until an impasse bad been reached, and the Union representative had advised it that he was interested only in building up a case under which the respondent could be tried for violation of the Act. In its answer the respondent denied that its operations were subject to the jurisdiction of the Board, and alleged that the increases granted its employees in August were given only after the impasse had been reached between the respondent and the Union. With respect to the individual increases the respondent alleged that they were the result of administrative adjustments. Pursuant to proper notice a hearing was held November 30, December 1, 2 and 3, 1942, at New Orleans, Louisiana, before Frank Mouritsen, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Board and the respond- ent were represented by counsel, the Union by its International Representa- tive. All participated in the hearing. Full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the respondent filed a motion to dismiss the complaint for want of jurisdiction. The motion was denied 3 At the conclusion of the hearing counsel for the Board moved to con- form the complaint to the proof with respect to names, dates and such minor matters. This motion was granted without objection. During the course of the hearing counsel for the Board moved to amend the complaint in minor mat- ters. These motions were granted without objection. At the end of the hear- ing counsel for the respondent and, counsel for the Board argued the matter orally. Counsel were adN ised that they might file briefs with the undersigned within 5 days from the close of the hearing. No briefs have been received. - Upon the entire record in the case and from the observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is a Louisiana corporation owning and operating approxi- mately 86 retail grocery stores in New Orleans, Louisiana, 4 in the State of Mississippi and a single warehouse with offices in New Orleans. Only the warehouse is involved in this proceeding. During the period between January 1, 1942 and October 3, 1942, the respond- ent purchased groceries valued at $6,448,792 52. Of this total $5,059,722.59 was expended in Louisiana on products originating in Louisiana and $1,230,068 75 was paid for products originating outside Louisiana. The warehouse handled goods valued at $4,278,773 82, including all the goods coming from sources out- side Louisiana and some of the goods local to Louisiana. The Mississippi stores received from the warehouse products amounting in value to $204,169 34. Mer- chandise sent to Mississippi from the New Orleans warehouse goes by way of common carrier. Sales made by the retail stores of the company are 100 per cent local in nature; for the above period sales totaled' $7,604,397.88 of which $460,501.79 represents Mississippi sales. f IIn its Decision and Direction of Election , in the Matter of H. G. JIM Stores, Inc., 39 N. L R. B. 874, issued March 17, 1942, the Board held that the respondent was engaged in commerce within the meaning of the Act. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE ORGANIZATION INVOLVED Warehouse and Distribution Workers Union, Local 207, International Long- shoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership certain employees of the respondent at its warehouse. III THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively; interference, restraint, and coercion 1. The appropriate unit The complaint alleged and the parties stipulated that "all employees of the respondent employed at its warehouse, including truck drivers and helpers, porter, yardmen, and carpenter, but excluding clerical workers, supervisory employees, any persons having the right to hire or discharge, and checkers, con- stitute a unit appropriate for the purpose of collective bargaining." In a prior decision involving the same parties, the Board found this to be an appropriate unit,' and the above unit was used at an election conducted by the Board on April 7, 1942.6 The undersigned finds that all employees of respondent employed at its ware- house, including truck drivers and helpers, porter, yardmen, and carpenter, but, excluding clerical workers, supervisory employees, any persons having the right to hire or discharge, checkers, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other /conditions of em- ployment, and that said unit insures to employees of the respondent at its ware- house the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuates the policies of the Act. There are approxi- mately 82 employees in the unit. 2. Representation by the Union of a majority in the appropriate unit Pursuant to its Decision and Direction of Election cited above,6 the Board, on April 7, 1942, conducted an election among the respondent's employees in the unit found above to be appropriate. A majority of the employees who voted at the election selected the Union as their collective bargaining agent. The Board on April 28, 1942, certified the Union as the collective bargaining agent of all employees in the appropriate unit. The undersigned finds that on and at all times after April 7, 1942, the Union was the duly designated representative of a majority of the employees in the aforesaid appropriate unit and that by virtue of Section 9 (a) of the Act, the Union at all such times was the exclusive representative of all the employees in such suit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain On April 9, just two days after the Union won the election conducted by the Board, Caleb D. Green, the Union representative, called W. E. Penick, president of the respondent, and requested that the respondent enter into negotiations with the Union. According to Green, Penick replied that he was entitled to postpone 4 See footnote # 3, supra 6 40 N L R. B 959. 6 See footnote # 3,supra. 7 40 N. L. R. B. 959. 1 9 H. G. HILL STORES, INIC. negotiations until the Union had been certified by the Board, and that he was going to insist upon his rights. Green deferred to Penick's claim that he was entitled to postpone negotiations until after the Union was certified by the Board, and accordingly made no further efforts to meet with Penick until after the certification of the Board issued on April 28, 1942. On May 5, 1942, Green left with C. M. Williams, vice-president of the respondent, a copy of the Uniod's proposed agreement. The Union's proposal formed the basis of the discussion of two conferences which were held prior to May 22. At these conferences the Union's proposal was discussed item by item. To• a number of the items Penick stated that he would agree. He stated that he would not agree to the Union's request for a closed-shop, arbitration of grievances, premium payment for work in excess of 8 hours per day, a wage increase, or straight plant-wide seniority. Green agreed (1) to modify his request for the closed-shop provision to the maintenance of membership provision suggested by Penick, (2) to eliminate the provision for the arbitration of grievances, (3) to present to the members a modification of the request for premium pay, so that it was to apply only to hours worked in excess of 40 hours per week, (this corresponded with the respondent's practice at that time) and (5) to modify the seniority provision to provide for departmental seniority to be given con- sideration when skill and ability were equal. The negotiations at the first two meetings were conducted in friendly fashion, Green's modifications of the Union's original proposal were made to meet objections raised by Penick, and Green agreed to present the modifications in writing for later consideration. At this point in the negotiations ostensibly the parties were not far from an agreement, and the only place where they appeared to be apart was with respect to the request for a wage increase, Penick stating that the respondent was unable to grant even 1 cent per hour increase because of the uncertainties involved in the imposition of price ceilings by the Office of Price Administration and for the further reason that Green insisted that the increase be for one year, the proposed term of the contract. On May 22, Green called a meeting of the members of the Union, for the purpose of presenting to them modifications of the Union's proposal to meet the respond- ent's objections. In the leaflet which he put out to advertise the meeting, Green stated that the meeting was to be held "to discuss the agreement that is about to be signed between the II G Hill Stores and the Union." At the meeting the proposed modifications drafted by Green were discussed and Green informed the members that negotiations• were proceeding satisfactorily, and that it appeared that a contract would be signed in the near future. On Tuesday May 2G Penick called together five or six of the employees in the warehouse, and exhibiting a copy of the leaflet for the May 22 Union meeting, _ stated to the employees his position about the signing of a contract with, the Union. There is some conflict in the testimony as to what he said on that occasion. James Hillard and Samuel Brooks, two employees who were present when Penick spoke, testified that Penick stated unequivocally that he would not sign a contract with the Union. Hillard testified that Penick likened the negotiations to horse trading, saying that you could promise forever to buy the horse, but never really buy. Penick testified that he told the employees that "there positively would not be a contract signed with the union that week, because it was then late in the week . . . and that I would not have an oppor- tunity to see Mr. Green to even discuss the contract with him for the balance of the week, and it was on that account that no contract could possibly be signed that week." [Italics supplied.] Penick further testified that in comparing the negotiations with horse trading, he stated that one might think he is close P 190 DECISIONS OF NATIONAL LABOR RE-LAT1VNS BOARD to buying or selling the horse, when as a matter of fact he doesn't know whether be is close or not ; adding that neither he nor Green could say when a contract could be signed. Penick admitted that he instructed the employees who were present to pass this information on to the other employees. Penick's testimony that he told the employees that the contract would not be signed that week be- cause it was then late in the week is obviously incorrect, since May 26 fell on Tuesday and not late in the wedk. As a matter of fact,-early in the negotiations Penick had himself requested that no conferences be set before Wednesday during the week, as a matter of convenience to him. Penick's testimony regard- ing the speech was contradictory in other respects. He claimed that he made the speech because a number of employees informed him that Green was spread- ing the rumor among the employees that they would have to join the Union or lose their jobs because a closed-shop contract was about to be signed with the respondent. His testimony as to which employees so informed him was vague and indefinite. He made no claim that he reassured the employees about the closed-shop feature of the contract, which according to his own testimony was the real reason for speaking to the men. Because of the unsatisfactory nature of Penick's testimony regarding the May 26 speech, the undersigned credits the testimony of Hillard and Brooks, and finds that Penick told the employees that he would not sign a contract with the Union, and in comparing the negotia- tions with horse trading, said that you could promise forever to buy but never buy. Even if Penick's version be accepted, it is clear that in going directly to the employees whom the Union was attempting to represent, and informing them that a contract was, not about to be signed, contrary to the Union's claim, Penick undermined their confidence in the Union, and cast doubt upon the Union's efficacy as a bargaining agent. On or about June 4 another bargaining conference was held. At this meeting one of the warehouse employees who had been serving on the Union bargaining committee, withdrew from the committee and announced that he did not desirq to participate further in the negotiations. At this conference Green and Penick discussed the proposals which Green had drafted to meet the respondent's objec- tions. Penick stated that the provision regarding maintenance of membership which Green had drafted was illegal,, and both agreed to have it checked by their attorneys. Penick refused to agree to Green's proposal that preference be given Union members in the hiring of new employees. Green submitted a new proposal for the handling of grievances which eliminated the references of such grievances to arbitration and provided for the handling of grievances through shop stewards. Penick requested more information regarding the shop-steward system, which Green agreed to furnish. Penick stated that he would agree to the modified seniority provision submitted by Green. Penick again stated that the respondent could not grant any wage increase, because of the price ceilings established by the OPA. Green requested that Penick submit a written counterproposal containing the matters to which the respondent had agreed and would agree, but Penick refused to, do so, stating that when an agreement was reached on- all items of the contract, it could then be drafted by the attorneys. On June 6 Green submitted to Penick additional information regarding the operation of the shop-steward system of handling grievances. The final conference was held either July 1 or July 8. ' Green charged that Penick was not bargaining in good faith and cited as evidence of this, among other things, Penick's talk to the employees on May 26. He stated that unless the respondent would agree to a contract providing for a substantial increase in pay and the open shop, or for the closed or union shop with the pay question left open, he would resort to his legal rights, and build a case for filing charges H. G. HILL STORES, I1",9C., under the Act. Penick stated that if Green was going to tale that position, he desired to secure the advice of his attorney before proceeding further,,and Green agreed to postpone further negotiations until Penick had had an opportunity to do so. On July 16 Green called Penick on the telephone and Penick advised that the respondent was unable to agree to either of the conditions set up by Green, and that since they were unable to agree there was no point in further negotiations. On July 17 by letter Green requested that Penick submit the following provi- sions to arbitration : 1 Maintenance, of membership 2. Seniority 3. Arbitration of disputes 4 Vacation with pay 5. 45¢ per hour minimum for warehousemen 6 500 per hour minimum for truck drivers. Penick on July 25 drafted a reply to Green's letter of July 17. Green testified that he did not receive the letter, and it was not shown that such letter was deposited in the mails. However, whether such letter was ever received is immaterial, since in the letter Penick refused to submit the above points to arbitration, stating that he could not agree to either of the conditions imposed by Green at the final conference. On or about July 31 Penick knew that the price ceilings set by the O. P. A. would be relaxed, and on or about August 5 the respondent, without informing the Union, announced to its employees that a general wage increase would be granted as of August 14 On August 14 the respondent increased the pay of its truck drivers from 40 to 50 cents per hour, and its warehousemen from 35 and 40 cents per hour to 40 and 45 cents per hour. Green wrote Penick a letter on September 28 stating that the Union desired to reopen and continue negotiations for a contract By letter of October 9, Penick refused to reopen negotiations because Green had filed charges with the Board. No further attempts to bargain were made by Green. From the foregoing it is clear that by refusing the Union's unconditional request to'reopen negotiations on October 9, the respondent refused to bargain with the Union. The reason given by the respondent for the refusal to reopen negotiations, namely, that the Union had filed charges with the Board, cannot excuse the refusal to bargain. If during the negotiations the Union had threat- ened to strike, or had actually struck, this fact would not excuse the respondent's refusal to negotiate 8 If resort to industrial strife does not justify a refusal to bargain, then most assuredly, filing charges with the Board, the peaceable alter- native, cannot as a-matter of public policy justify a refusal to bargain.9 However, consideration of the facts outlined above shows. that the respondent was not bargaining in good faith with the Union long prior to October. Penick's statement to his employees that he would not sign a contract with the Union, made on May 26 near the beginning of the negotiations, clearly shows the spirit in which he was undertaking negotiations with the Union. If any doubt remained about the nature of his negotiations, it was removed by his refusal at a point well along in the negotiations to submit written counterproposals embodying the points to which lie had agreed and to which he would agree. It is impossible to conduct negotiations as complicated as those involved in a collective bargaining 3N. L. R B. v. Reed and Prince Mfg Co., 118 F. (2d) 874 (C. C. A. 1 ) and cases cited therein ; cert denied, 313 U. S 595. 9 Cf. Hartsell Mills Co. V. N L. R. B., 111 F. (2d) 291 (C. C. A. 4) ; and Matter of Sheba Anti Frocks, Inc., 5 N.L. R. B. 12, 19. 192 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement covering numerous items, upon oral proposals alone.- Good faith bargaining requires that written counterproposals be submitted. The manner in which the respondent put its general wage increase into effect in August also shows that the respondent was not bargaining in good faith. It became clear during July that the Union was insisting upon a wage increase as one of two alternatives. About July 16 the respondent advised that further conferences were useless because it was unable to agree to the granting of a wage increase. On July 25 Penick in his letter stated in effect that it,was useless to submit the suggested matters to arbitration, because the respondent could not agree to grant a wage increase. Yet approximately 10 days later the respondent. without any notice to the Union, announced to its employees that a general wage increase, in substantially the amount requested by the Union, would be granted From the showing made by the respondent, the undersigned is not satisfied that conditions so changed during that 10 day period as to warrant such an abrupt-about-face, but even assuming that they did, the respondent in granting the increase without informing the Union that conditions now would permit such grant, was not making that "honest attempt to arrive at an agreements 10 required by the Act. Upon the entire record in the case, the undersigned is convinced and finds that from the time of the Union's initial request on April 9 and throughout the entire negotiations the respondent has not bargained in good faith as required by the Act. By its refusal to bargain, by Penick's speech of May 26 and by its general wage increase of August 14, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. _IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and that it take certain affirmative action in order to effectuate the policies of the Act. It has been found that the respondent has refused to bargain collectively with the Union as the exclusive representative of a majority of its employees in an appropriate unit. It will therefore be recommended that the respondent, upon request, bargain collectively with the Union. Upon the basis of the above findings of fact and upon the entire record of the case, the undersigned makes the following: CONCLUSIONS OF LAw 1- Warehouse Warehouse and Distribution Workers Union, Local 207, International Long- shoremen's and 'Warehousemen's Union, affiliated with the Congress of Indus- trial Organizations, is a labor organization within the meaning of Section 2 (5) . of the Act. 10 Aluminum Ore Company v. N. L. R. B., decided November 30, 1942 ( C. C. A. 7), 11 LRR 489. - H. G. HILL STORES, INC.. 193 2. All employees of the respondent employed at its warehouse, including truck drivers and helpers, porter, yardmen, and carpenter, but excluding cler- ical workers, supervisory employees, any persons having the right to hire or discharge, and checkers, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. 3. Warehouse and Distribution Workers Union, Local 207, International Long- shoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations was on April 7, 1942 and at all times thereafter has been the exclusive representative of all the employees in the aforesaid unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act.. 4 By refusing to bargain collectively with Warehouse and Distribution Work- ers Union, Local 207, International Longshoremen's and Warehousemen's Union,, affiliated with the Congress of Industrial Organizations, as the exclusive repre- sentative of its employees in the appropriate unit the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above, findings of fact-and conclusions of law the under- signed reccommends that the respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Warehouse and Distribution Workers Union, Local 207, International Longshoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations, as the exclusive repre- sentative of all employees of the respondent employed at its warehouse, including truck drives and helpers, porter, yardmen, and carpenter, but excluding clerical workers, supervisory employees, any persons having the right to hire or discharge, and checkers, with respect to rates of pay, wages, hours of employment and other conditions of employment; (b) In any other manner interfering with, restraining or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Warehouse and Distribution Work- ers Union, Local 207, International Longshoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations, as the exclusive repre- sentative of all employees of respondent employed at its warehouse, including truck drivers and helpers, porter, yardmen, and carpenter, but excluding clerical workers, supervisory employees, any persons having the right to hire or discharge, and checkers, with respect to rates of pay, wages, hours of employment and other conditions of employment; 194 DECISIONS OF NATIONAL •LABO1R RELATIONS BOARD (b) Post immediately in conspicuous places in its warehouse at New Orleans, Louisiana, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a,) of these recommenda- tions ; (c) File with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) within ten (10) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations,, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 2, as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, together with the original and -four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. I FRANK A. M0URITSEN, Trial Examiner. , Dated December 23, 1942.