Retail Clerks International Association

'754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undetermined time during the period before the election. While it is true that in some cases the Board has set aside elections regardless of the fact that conduct found to have interfered with the elections could not be attributed to any of the parties involved, in such cases the char- acter of the conduct involved was more serious than that complained of in this case and was affirmatively shown to have occurred in close proximity to or during the election."l Accordingly, under all the circumstances, including the fact that Robinson's conduct in this case cannot be attributed to the Petitioner, we find that his conduct did not interfere with the exercise of free choice by the employees in the election. As there was no other evidence presented which in our opinion supports the Employer's second broad objection, we will over- rule the second objection .12 Accordingly, as no evidence has been presented which persuades us that conduct occurred which prevented the employees from exer- cising a free and untrammeled choice of representatives, we hereby overrule the objections. As the tally of ballots shows that the Peti- tioner was selected by a majority of employees voting, we shall certify the Petitioner as the collective-bargaining representative of the em- ployees in the appropriate unit. [The Board certified the United Steelworkers of America, CIO, as the designated collective-bargaining representative of the employees of Bridgeport Castings Company at its Bridgeport, Connecticut, plant, in the unit found appropriate in the Decision and Direction of Election herein.] CHAIRMAN FARMER took no part in the consideration of the above Supplemental Decision and Certification of Representatives. u E. g., Diamond State Poultry Company, 107 NLRB 3 ; P. D. Gwaltney, Jr., and Com- pany, Inc , 74 NLRB 371. However, in numerous other cases the Board has declined to set aside elections because of conduct which could not be attributed to any of the parties. The Gruen Watch Company, 108 NLRB 610; Poinsett Lumber Company, 107 NLRB 234; E I. DuPont de Nemours and Co., Inc, 105 NLRB 710; Marman Bag Company, Inc., 103 NLRB 456 , J. J Newberry Co., 100 NLRB 84. 12 In its exceptions and brief , the Employer took exception to a number of findings of the hearing officer to which we do not refer in this Decision. As in our view of this case these findings of fact are unnecessary to our decision, we neither adopt nor reject them. RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1179, AFL, AND ESTHER LUTHER, AGENT and CALIFORNIA ASSOCIATION OF EM- PLOYERS FOR AND IN BEHALF OF J. C. PENNEY COMPANY. Case No. 2O-CB-,065. August 9,195. Decision and Order On August 13, 1953, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 109 NLRB No. 111. RETAIL CLERKS, ETC. 755 spondents violated Section 8 (b) (3) by failing to comply with the requirements of Section 8 (d) (3) after serving a contract reopening' notice upon the Charging Party, but finding, otherwise, that the strike thereafter called by the Respondents was not unlawful. He recom- mended, as to the unfair labor practices found, that the Respondents- cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondents, the General Counsel, and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Respondents also requested oral argument. This request is hereby denied, because the record, including the exceptions and briefs, adequately presents the issues and the positions of the parties. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the exceptions, modifications, and additions hereafter noted. The principal issue of this case turns upon a question of law. Is strike action, taken while a collective-bargaining agreement is in effect and for the purpose of compelling modification of its terms, lawful de- spite the Union's failure to serve notice of the dispute upon the Fed- eral Mediation and Conciliation Service, as required by Section 8 (d) of the statute? The Trial Examiner found that the Union's failure to serve notice upon the Federal Mediation and Conciliation Service was an unfair labor practice, in violation of Section 8 (b) (3) of the Act, and we agree. He also concluded that the strike was nevertheless law- ful, because he considered notice to the Federal agency to be only an ancillary aspect of the 8 (d) notice requirements. On this latter point we do not agree. The essential facts are not in dispute. The Respondent Union's contract with the Company was made on January 11, 1952, and ran from November 1, 1951, to October 31, 1953. It also provided that "Upon sixty (60) days' written notice prior to November 1, 1952, either party may open for amendments" those sections dealing with wages and hours of work. On about August 22, 1952, pursuant to the terms of the contract, the Union served notice upon the Company of its desire to modify sub- stantial terms of the agreement. There followed a series of bargaining conferences during which the parties attempted to negotiate their differences respecting a number of substantial provisions of the con- tract. The Union was not satisfied with the progress of negotiations and on ' December 11, 1952, struck. At the time of the hearing, more 334811-55-vol. 109--49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than 6 months later, the strike was still in progress. The record shows, and the Respondents admit, that no notice of the dispute was given the Mediation Service until more than 1 month after the start of the strike. The complaint alleges that because the Union resorted to strike action while the contract was still in force and effect without serving notice upon the Federal Mediation and Conciliation Service it failed to satisfy the notice requirements of Section 8 (d) and therefore en- gaged in unlawful conduct. In defense, the Union contends that on the question of the legality of the strike all that the statute requires is that a full 60-day period elapse between the day when notice of desire to modify the contract is served upon the company and the time of strike action. It argues that the further statutory requirement of notice to the Mediation Service is only a formal part of Section 8 (d), which has no bearing upon the question of legality of the strike. The pertinent portion of Section 8 (d) provides as follows: ... where there is in effect a collective-bargaining contract cov- ering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party'desiring such termination or modification- (1) serves a written notice upon the other party to the con- tract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract con- tains no expiration date, sixty days prior to the time it is pro- posed to make such termination or modification; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dis- pute, . . . provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing con- tract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later : It is clear that the Union was subject to Section 8 (d) of the Act when the strike occurred in December 1952. The contract was in ef- fect when the Union struck. For the reasons fully stated in our recent decision in the Lion Oil case,' the Union, desiring to modify the terms of that agreement, was subject to the affirmative duty to serve the specified notices as set out in the section and to otherwise comply with its provisions.2 1 Lion Oil Company, 109 NLRB 680. 2 For reasons stated in his concurring opinion in the Lion Oil case, Member Peterson agrees with this conclusion. RETAIL CLERKS, ETC. 757 Considering the issue first in terms of whether the Union's conduct violated Section 8 (b) (3), the language of Section 8 (d) (3) leaves no room for doubt that the December 11 strike action was an unlawful refusal to bargain and therefore an unfair labor practice. Thus, Section 8 (d) states that "the duty to bargain . . . shall also mean that no party to such contract shall . . . modify such contract, unless the party . . . notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute .. . and continues [the contract] in full force and effect, without resort- ing to strike. . . ." The suggestion, urged by the Respondent Union as a defense and accepted in part by the Trial Examiner, that the re- quirement of notice to the Mediation Service was intended only as a voluntary offering to increase the chances of success in bargaining and presented only a device which the Union might or might not uti- lize, finds support neither in the language of Section 8 (d) nor in the overall purpose of that section. Indeed, that the affirmative duty imposed by the statute upon a party to a contract who wishes to terminate or modify it during its. term is a mandatory one, is amply shown by the legislative history of the provision. Thus, the Senate Report on S. 1126, in referring to Section 8 (d), reads : 3 Under this section, parties to collective agreements in the future would be required to give 60 days' notice in advance of the ter- minal date, if they desire to terminate or amend. Should the parties fail to agree on a new contract in the next 30 days, the party taking the lead in refusing the old contract has the duty to notify the new Federal Mediation Service of the impasse. [Emphasis supplied.] Senator Ives, in successfully proposing that Section 8 (d) (3) re- quire notice to appropriate State agencies, as well as to the Federal Mediation and Conciliation Service, said on the floor of the Senate : 4 I merely want to point out to the Senate that that language should be inserted because it was inadvertently omitted when the bill was being prepared. It is perfectly obvious that it was the intent and purpose to connect the language suggested with the section of the bill which provides that employers or employees shall serve notice 60 days before the expiration of a contract if there is going to be any change; and such notice has to be served upon the Na- tional Mediation Service proposed to be established under the bill. [Emphasis supplied.] In view of the unambiguous language of the section, and the equally clear legislative history, we find, as did the Trial Examiner, that the 8 Sen Rep . No. 105 on S. 1126, 80th Cong, 1st Sess. 24 (1947). 93 Cong. Rec. 5081 (1947). 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was under a statutory obligation to advise the Federal Media- tion Service of the existence of the labor dispute. We also find that because it engaged in such a strike without satisfying that statutory` notice requirement, it failed to bargain in good faith and thereby violated Section 8 (b) (3) of the statute.5 As stated above, despite his finding that the Union committed an unfair labor practice by its failure to serve notice upon the Mediation Service, the Trial Examiner also concluded that the strike was not unlawful. Therefore, while he recommended that the Union be or-' dered to cease and desist from refusing to bargain with the Company, he permitted the very act which constituted the Respondent Union's misconduct to go unremedied. There is no support in the statutory' language for this distinction, which in effect nullifies his unfair labor practice finding. We find no warrant for a holding that the notice to the Mediation Service is a mere subordinate or "ancillary" aspect of the statute. There is nothing to indicate that Congress regarded this mandatory requirement as less significant than any other of the mandatory pro- visions of Section 8 (d), and it would, in our opinion, be presump- tuous of an administrative agency to accord more or less significance, to particular statutory requirements which, from all that appears on' the face of the statute, Congress intended should be accorded equal dignity. It is not incumbent on us to determine which of the several parts of Section 8 (d) Congress deemed most essential to accomplish the legislative purpose. It is enough that each has been specifically set out as a part of a single congressional objective-which was, of course, to provide more peaceful and stable'labor relations-and it is our responsibility to give full force and effect to the whole statutory scheme. As the legislative history bears out, the purpose of requiring, notice to the Mediation Service is to provide for governmental medi- ation in the event the notice of intention to change the contract served upon the other party should fail to produce a mutual settlement of the labor dispute within a 30-day period. In that event, it is as- sumed, and experience has shown, correctly, that participation by the Federal Mediation and Conciliation Service will enhance the prob- ability of a peaceful settlement of the dispute. This requirement that the parties to a labor dispute invite the assistance of a special service of the Federal Government is no doubt collateral to the negotiations is International Union of Operating Engineers , Local No. 181 v. Dahlem Construction Co., ,93 F 2d 470 (C. A. 6). [Section 8 ( d)] requires that the notice [ to the Mediation Service] be sent within thirty days after the notice of modification. This provision is mandatory. The pur- pose of enacting the statute was that industrial strife might be prevented by prompt action of the Mediation and Conciliation Service. If the Service is delayed in com- municating with the parties and in offering mediation and conciliation, its efforts often will be frustrated. [Emphasis supplied.] RETAIL CLERKS,, ETC. 759 by the principal parties. However, it is no less an integral part of the scheme evolved by Congress for achieving a higher degree of stability in collective bargaining. Section 8 (d), by its plain language and intent, made it unlawful for the Respondent Union to strike in December 1952 without first serving notice of its dispute with the Company upon the Federal Mediation Service. The fact that the Union withheld strike action for more than 60 days after advising the Company of its desire to modify the contract could in no way relieve it of the statutory duty to call in the Mediation Service. That notice, as the statute provides, must be served "within thirty days" after notice to the Company. In this case, no service was made upon the Mediation Service and therefore the strike was unlawful from its inception. Accordingly, we find that the Respondent Union unlawfully refused to bargain, in viola- tion of Section 8 (b) (3) of the Act, both by its failure to serve notice of a labor dispute upon the Federal Mediation and Conciliation Serv- ice and by engaging in strike action before properly serving such notices THE REMEDY Because he made no finding of unfair labor practice with respect to the strike, the Trial Examiner made no reference in his recom- mended remedy to the Union's conduct in calling and continuing to engage in the unlawful strike. The record indicates that the strike was still in progress at the time of the hearing before the Trial Ex- aminer. To permit the Union to continue unhampered the very strike which constitutes the heart of its unlawful conduct would be to coun- tenance its continued flaunting of an explicit proscription of the stat- ute. As always, however, our remedial order must be coextensive with the unlawful conduct found.? Therefore, in addition to adopting the remedial action recommended by the Trial Examiner, we shall also order the Respondent to cease and desist from striking, or order- ing or instructing the employees of J. C. Penney to strike, without complying with the requirements of Section 8 (d). Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Retail Clerks As we are convinced and find upon the entire record that the strike of December 11, 1952, was not caused by bad-faith bargaining on the part of the Company, we do not pass upon the Respondents ' assertion that they would have been relieved of the obligations im- posed by Section 8 (d) of the Act if the strike was one caused by the Company 's unlawful refusal to bargain. 7 N. L. R. B. v. Empress Publishing Company, 312 U. S. 426. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association, Local No. 1179, AFL, its officers, repre- sentatives, agents, successors, and assigns, and Esther Luther, her rep- resentatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with California Association of Employers for and in behalf of J. C. Penney Company, or any other employer, by failing to notify the Federal Mediation and Con- ciliation Service and any appropriate State agency of the existence of a dispute within the meaning of Section 8 (d) (3) of the Act within 30 days after service of notice upon California Association of Em- ployers for and in behalf of J. C. Penney Company, or any other employer, that the Respondent Union seeks or desires modification of a collective-bargaining contract; provided, however, that no such notice to the Federal Mediation and Conciliation Service and any appropriate State agency shall be required if an agreement is reached within 30 days following service of a notice that modification of a contract is sought or desired. (b) Engaging in, or ordering or instructing the employees of J. C. Penney Company to engage in, a strike, without first having complied with the requirements of Section 8 (d) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the business offices of Retail Clerks International Asso- ciation, Local No. 1179, AFL, copies of the notice attached hereto and marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by official representatives of the Respondents, be posted by the Respondents immediately upon receipt thereof and be maintained by them for a period of sixty (60) days thereafter in conspicuous places, including all places where notices to members of the Respondent Union are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twentieth Region signed copies of the notice, attached hereto and marked "Appendix," for posting, the Company willing, on the bulletin boards of the three stores of J. C. Penney Company located respectively in Richmond, Pittsburg, and Martinez, California, where notices to employees are customarily posted. The notices shall be posted on the respective store bulletin boards and be maintained thereon for a period of sixty (60) s In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." RETAIL CLERKS, ETC. 761 consecutive days thereafter. Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by offidial representatives of the Respondents as provided in paragraph 2 (a) of this Order, be forthwith returned to the Re- gional Director for such posting. (c) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order as to the .steps they have taken to comply herewith. MEMBER MURDOCK, dissenting: For the reasons stated in my dissenting opinion in Lion Oil Com- pany, supra, and in my concurring opinion in United Packinghouse Workers of America, CIO, et al. (Wilson d Co., Inc.), 89 NLRB 310, 319, I am of the view that the proviso of Section 8 (d) applies only to the period around the expiration of a contract and does not apply earlier during the terms of a contract. Accordingly, I would dismiss the complaint in its entirety. MEMBER BEESON took no part in the consideration of the above Decision and Order. Appendix NOTICE TO ALL MEMBERS OF RETAIL CLERKS INTERNATIONAL ASSOCIA- TION, LOCAL No. 1179, AFL, AND TO ALL EMPLOYEES OF THE THREE J. C. PENNEY COMPANY STORES LOCATED RESPECTIVELY IN RIcu- MOND, PITTSBURG, AND MARTINEZ, CALIFORNIA Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT refuse to bargain collectively with California Association of Employers for and in behalf of J. C. Penney Company, or any other employer, by failing to notify the Federal Mediation and Conciliation Service and any appropriate State agency of the existence of a dispute within the meaning of Sec- tion 8 (d) (3) of the Act within 30 days after service of notice upon California Association of Employers for and in behalf of J. C. Penney Company, or any other employer, that we seek or desire to modify a collective-bargaining agreement; provided, however, that no such notice to the Federal Mediation and Con- ciliation Service and any appropriate State agency shall be re- quired if an agreement is reached within 30 days following service of a notice that modification of a bargaining contract is sought or desired. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT engage in, or order or instruct the employees of J. C. Penney Company to, engage in, a strike, without first having complied with the provisions of Section 8 (d) of the Act. RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1179, AFL, AND ESTHER LUTHER, AGENT, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE On January 21, 1953, California Association of Employers filed a charge with the National Labor Relations Board against the Respondents, Retail Clerks International Association, Local No. 1179, AFL, and Esther Luther.' Based upon the charge, the General Counsel of the Board, on April 28, 1953, issued a complaint alleging that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended (61 Stat. 136-163), also referred to herein as the Act. Copies of the charge and complaint have been duly served upon the Respondents. Among other matters, the complaint alleges, in material substance, that J. C. Penney Company (also referred to herein as the Company) is engaged in the business of selling wearing apparel and other merchandise at retail in three stores respectively located in Richmond, Pittsburg, and Martinez, California; that the Respondent Union, through its agent, Esther Luther, and the Company entered into a collective- bargaining agreement on January 11, 1952, affecting employees at the Company's three stores; that the agreement provided that it was to "remain in full force and effect from November 1, 1951, until October 31, 1953, except as otherwise therein pro- vided"; that the contract contained a provision that "either party could reopen it for amendments to the wage and hour provisions" upon 60 days' written notice to the other party; that on or about August 22, 1952, the Union notified the Company that it "desired to open the agreement for wage and hour discussions"; that thereafter the Union, through its agent, Esther Luther, and the Company, through its agents and representatives, "met in collective bargaining sessions at various times up to Decem- ber 2, 1952"; that on or about December 11, 1952, the Respondents struck the Com- pany "and established pickets" at the three stores; that "said strike and picketing has continued from that date and still continues"; that "no notice of dispute as required by Section 8 (d), subsection (3), of the Act was given by the Respondents to the Federal Mediation and Conciliation Service [also referred to herein as the Mediation Service] prior to the commencement of the strike"; and that by failing to give such "notice of dispute," calling the strike, and establishing pickets at the stores, the Re- spondents have failed and refused to bargain collectively with the Company, in viola- tion of Section 8 (b) (3) of the Act. The Respondents filed an answer which was amended prior to the hearing in this proceeding. The amended answer, in material essence, denies that the Respondents have failed and refused to bargain collectively with the Company, and that they have engaged in any unfair labor practices. For future reference, note may be taken here of the following excerpt from the amended answer:2 'The National Labor Relations Board is also referred to herein, as the Board ; Retail Clerks International Association, Local No 1179, AFL, as the Union or Respondent Union ; and California Association of Employers as the Association. 2 The amended answer contains an extensive recital of discussions and relations between representatives of the Union and the Company after the service by the Union of a notice requesting a reopening of the wage and hour provisions of the agreement. The relevant allegations appear to bear on the question of legality of the strike. In the light of the resolution of that question made below, I deem it unnecessary to detail the allegations in question. RETAIL CLERKS, ETC. 763 Respondent Esther Luther is informed and believes and therefore alleges that on or before December 2, 1952, and prior to the strike, the Federal Media- tion and Conciliation Service had knowledge of and was informed of the action of the employees taken on November 20, 1952, to strike, although respondents admit that they did not send to the Federal Mediation and Conciliation Service a formal written notice of the matter, but in this connection respondent alleges that she at all times up to the service upon her of the Charge filed by the Cali- fornia Association of Employers believed and thought that a written notice of the matter had been given to the Federal Mediation and Conciliation Service and respondent Esther Luther further alleges in this connection that only upon receiving the service of the said Charge did she become aware that by some in- advertence no notice had been given. . That following the service of the said Charges and during further negotiations under the auspices of the Federal Mediation and Conciliation Service hereafter set forth respondent Esther Luther was advised to give such notice to the Federal Mediation and Conciliation Ser- vice notwithstanding the fact that thirty days had transpired since the giving of notice of opening of contract, and such notice to said Federal Mediation and Conciliation Service was so given. Pursuant to notice duly given by the General Counsel to all other parties, a hear- ing was held at San Francisco, California, on June 30 and July 1 and 2, 1953, be- fore me as duly designated Trial Examiner. The General Counsel, the Respond- ents, and the Company were represented by counsel, and the Association by its president. All parties participated in the hearing and were afforded a full oppor- tunity to be heard, to examine and cross-examine witnesses, to adduce evidence, to submit oral argument, and to file briefs e The General Counsel, the Respondents, and the Company have filed briefs which have been read and considered. The Association has not filed a brief. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT` 1. THE BUSINESS OF THE COMPANY The Company is a Delaware corporation, maintains its principal office in New York, New York, operates retail stores "located throughout the United States," and is engaged in such stores in the business of selling at retail wearing apparel and other merchandise. Among its stores are three located respectively in Richmond, Pittsburg, and Martinez, California. I find that the Company is engaged in inter- state commerce within the meaning of the Act, that its operations affect such com- merce, and that the Board has jurisdiction of this proceeding H. THE LABOR ORGANIZATION INVOLVED The Respondent Union admits persons employed by the Company to member- ship and exists for the purpose, in whole or in part, of dealing with employers con- cerning conditions of employment. I find that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory findings All "store personnel" employed in the Company's stores at Richmond, Pitts- burg, and Martinez, California, excluding managers, assistant managers, con- fidential office employees, and supervisory employees as defined in the Act, con- stitute, and have constituted at all times material to this proceeding, a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The Respondent Union is, and has been at all material times, the exclusive collective-bargaining representative of the employees comprising the unit described above. O The General Counsel and the Respondents respectively made various motions at the hearing As the record sufficiently shows the rulings made thereon, it is unnecessary to set forth the motions and rulings here. * The findings set out below are variously based either upon undisputed evidence or upon admissions contained in the answer, as amended. 5It may be noted that the Board has found in a number of cases that the Company Is engaged in interstate commerce. Among others, see 97 NLRB 243 ; 92 NLRB 1454; and 92 NLRB 1286. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The three stores in question have been for some time, as one of the witnesses (Caldwell) put it, "individual members" of the Association. On January 11, 1952, the Association, for and on behalf of the three stores' entered into a collective- bargaining agreement with the Union with respect to wages, hours of work, and other terms and conditions of employment of persons employed in the stores. The contract provides that it "shall be in full force and effect from November 1, 1951, until October 31, 1953, except as hereinafter provided.. This provision is followed by another that "upon sixty (60) days' written notice prior to November 1, 1952, either party may open for amendments" to the sections relating to hours of work and wages. On or about August 22, 1952, the Company received a letter from the Union at each of the three stores. The three letters were identical, except for the respec- tive addresses, and were subscribed with Luther's name. Copies of the letters were received by the Association at or about the time of the receipt of the originals by the Company. Each of the letters in effect gave 60 days' notice "of the opening (of the agreement) by the undersigned for amendments" to the wage and hour pro- visions of the contract, and requested arrangements for negotiations. The first meeting between the Company and the Union, with respect to modifica- tion of the contract, was held on September 19, 1953. The Company was rep- resented by a man identified in the record as Mr. Feehan, and the Union by Luther and its counsel in this proceeding. The substance of what occurred was that Feehan said he was thtce to get the Union's proposals; that the Union's representatives thereupon told Feehan what the organization wanted; and that Feehan said that he "couldn't give any answer" with respect to the proposals, until he had discussed them with the managers of the stores; and that he would discuss the proposals with the managers and then notify the Union when another meeting could be held. The Company next communicated with the Union about October 7, and a meet- ing was arranged on that occasion for October 8. The parties met as scheduled. There was a discussion of a proposal by the Union for a 5-day week and of agree- ments which had been worked out with other employers in that regard. The Com- pany took the position that it could not afford such a workweek, and the upshot of the discussion was that the Company's principal negotiator said that he would re- view the proposal further with the managers of the stores. At a negotiating meet- ing held on November 6, the Company made a counterproposal of an increase in wages. The Union submitted the Company's proposal later that day to a meeting at- tended by the Company's employees. On the following day, Luther wrote a letter to the Association stating that a majority of the employees had rejected the Com- pany's proposal and had authorized the Union "to negotiate further, but not beyond November 15, 1952." No negotiating meetings were held between November 6-and November 20. On the latter date, Luther reported to a meeting of employees that she had been "unable to get the Company into a meeting; and that there was nothing further to present to them." The membership then voted "to take economic action to get them [the Com- pany] to meet" and "to negotiate the 5 day week." The membership also elected picket captains "for the conduct of the strike they had voted." The strike began on December 11, and pickets were established at the stores on that date.? No agreement 6 The complaint describes the contract as one between the Company and the Union. I find no merit in the claim advanced in the respondents' brief that the evidence does not support the allegation and that, in consequence, the General Counsel has failed to estab- lish an attempt to modify a contract between the Company and the Union. It Is clear from the record as a whole that the stores are Instrumentalities of the Company, and that in representing the stores, the Association was acting for the Company. Applying con- ventional rules of agency, It Is plain, from the evidence as a whole, that the Company and the Union are the real parties to the contract. 7 NO implication is to be drawn from findings made herein that the Company either refused to bargain or bargained in bad faith. I do not pass upon that question. The Com- pany's bargaining attitude would not condone a failure by the Union to comply with Sec- tion 8 (d) (3), since the section Is plainly designed to serve a public purpose. The claim, asserted by the Respondents, that the Company did not bargain in good faith Is Irrelevant to the Union's duty to comply with Section 8 (d) (3). In view of the conclusion reached herein concerning the legality of the strike, It Is unnecessary to determine whether the strike was caused by alleged bad-faith bargaining by the Company and thus, as an unfair labor practice strike, was not subject to Section 8 (d) (see Wagner Iron Works, 104 NLRB 445). Evidence concerning bargaining meetings and alleged refusals to meet after October 8 Is scant because I excluded proffered testimony relating to the subject, where objection RETAIL CLERKS, ETC. 765 for amendment or modification of the contract was reached prior to the strike. Picketing of the stores was still in progress at the time of the hearing. The Respondents contend in their brief that the evidence does not establish that they failed to notify the Mediation Service "of the existence of a dispute" within 30 days after serving the reopening notice upon the Company. Passing for the time being the question of the meaning of the term dispute, as used in Section 8 (d) (3), the record establishes that the Respondents did not notify the Mediation Service with- in the indicated 30-day period of the Union's intention to seek a modification of the contract. On that score, it may first be noted that the excerpt from the amended answer, quoted above, although prolix and containing irrelevant matter, amounts to a substantial admission that no such notice was given until after the charge in this pro- ceeding was served upon the Respondents. As the charge was served on January 22, 1953, it is apparent from the amended answer that the notice in question was not given within the 30-day period or, for that matter, was not given at any time prior to the beginning of the strike.8 Second, it is plain from other evidence that the Mediation Service was not notified within the required period. Luther is a respon- sible officer of the Union, and in that capacity acted in its behalf in executing the contract and in the negotiations seeking its modification. In fact, the record estab- lishes that she was the Union's officer in charge of the negotiations. It is clear from her testimony that she did not notify the Mediation Service "of the existence of a dispute" prior to the service of the charge, and she stated that "not to [her] knowl- edge" did "any official, officer or member" of the Union do so. She gave testi- mony to the effect that prior to the service of the charge she "thought" that such notice "had been given" by the Union's counsel. What she "thought" is beside the point, and I am convinced and find, from the whole record, that the Respondents did not, within 30 days after serving a written notice upon the Company of a•pro- posal to modify the contract, notify the Mediation Service "of the existence of a dispute." 9 B. Concluding findings As a preliminary to setting down concluding findings, it is appropriate to note the relevant statutory provisions. Section 8 (b) (3) provides that it is an unfair labor practice for a labor organization or its agents "to refuse to bargain collec- tively with an employer, provided it [the labor organization] is the representative of his employees subject to the provisions of section 9 (a)." Section 8 (d) pro- vides, in part: . where there is in effect a collective-bargaining contract covering em- ployees in an industry affecting commerce, the duty to bargain collectively was made. Such evidence is irrelevant on the issue of compliance with Section 8 (d) (3), and unnecessary, with respect to the strike, if the strike was lawful. All competent evi- dence offered with respect to the meetings of September 19 and October 8 was received for reasons which are fully stated in the record. 8 As appears from the quoted excerpt, the amended answer reads in part : ' . .. only upon receiving the service of the said Charge did she (Luther) become aware that by some inadvertence no notice had been given." The claim is made in the Respondents' brief that the term "notice" in the foregoing quotation should be read to mean " written notice." Viewing the record as a whole, I think it unnecessary to venture into a bog of semantic refinements. The claim is without merit. 0 The General Counsel offered a letter from the Regional Director of the San Francisco Regional Office of the Mediation Service to the Association to the effect that the Regional Office has "no record of having received an 8 (d) (3) notice" with respect to the "current dispute" between the Union and the Company. The letter was excluded on the ground that it was hearsay. It was offered again with an attached authentication of the Regional Director's signature by an official of the Regional Office. It was excluded again on the ground that the authentication did not conform to the requirements of rule 44 of the Rules of Civil Procedure applicable to the United States district courts. I construe rule 44, which prescribes the method of authenticating the existence or nonexistence of an official record, as prescribing an evidentiary standard applicable to unfair labor practice proceed- ings within the meaning of Section 10 (b) of the Act. The General Counsel argued in effect that it was not "practicable" to secure the proper authentication and that therefore the letter should be received. No showing was made in the form of evidence , as distin- guished from the statements of counsel, concerning the reasons why it was not "practi- cable" to secure a proper authentication. I need not decide whether the document would have been received if an evidentiary showing had been made, for the document in question is surplusage, inasmuch as the record fairly establishes that the notice in question was not given to the Mediation Service within the required period. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall also mean that no party to such contract shall terminate or modify such contact, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the pro- posed termination or modification sixty days prior to the expiration date there- of, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of nego- tiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously there- with notifies any State or Territorial agency established to mediate and con- ciliate disputes within the State or Territory where the dispute occurred, pro- vided no agreement has been reached by that time; and (4) continues in full force and effect without resorting to strike or lock- out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later. [Emphasis supplied.] The Respondents in effect contend that a necessary precondition of the applicability of Section 8 (d) (3) is that a dispute, in the literal sense, exist between the party seeking to terminate or modify a contract and the other party. Since no dispute actually arose between the Company and the Union until the meeting of October 8, more than 30 days after the reopening notice, the Respondents maintain that Section 8 (d) (3) is inapplicable , for, as they put it in their brief, "there was nothing to notify the Conciliation Service about." The legislative history of Section 8 (d) (3) is not quite decisive of the question. In proposing an amendment (which was adopted) to Section 8 (d) (3) to provide for notice to available State and Territorial conciliation facilities , as well as to the Mediation Service, Senator Ives said : "It is perfectly obvious that it was the intent and purpose to connect the language suggested (his proposed amendment) with the section of the bill which provides that employers or employees shall serve notice 60 days before the expiration of a contract if there is going to be any change; and such notice has to be served upon the National Mediation Service proposed to be established under the bill." (93 Cong. Rec. 5081 .) [ Emphasis supplied.] Similar- ly, in discussing his proposal on another occasion, he viewed it as a requirement "that the agencies of the States or Territories are to be notified in connection with any of these matters which came up involving new contracts." ( 93 Cong. Rec. 4719.) [Emphasis supplied .] It is apparent that Senator Ives viewed the notice con- templated by Section 8 (d) (3) as a notification by a party that he was seeking to terminate or modify a contract . On the other hand , a Senate report, in comment- ing on what is now Section 8 (d), said : "Should the parties fail to agree on a new contract in the next 30 days (apparently after service of the 60-day notice ), the party taking the lead in refusing the old contract has the duty to notify the new Federal Mediation Service of the impasse." (Sen. Rep. No. 105 on S. 1126, p. 25.) _[Emphasis supplied.] Thus, the report suggests , if nothing more, that an actual dispute within 30 days after the service of the 60-day notice by one party upon the other is a condition of the need for compliance with Section 8 (d) (3). But, it may be asked, what is the purpose of the section if , as is often the case, the parties do not meet until more than 30 days after the service of the 60-day notice , and no con- troversy actually arises until such a meeting is held? Is there any greater reason to foster the conciliation of disputes during the first 30 days after service of the 60- day notice than later? The answer to these questions , it seems to me, may be found in a whole view of Section 8 (d). The provision relating to notice to the Mediation Service should not be isolated from the rest of the section . Read as a whole what the section basically requires is that a party seeking to terminate or modify a collective -bargaining agree- ment must, as part of the duty to bargain collectively, serve upon the other party a prescribed written notice; offer to meet and confer with the other party for the purpose of negotiating a new or a modified contract, as the case may be; notify the Mediation Service (and available State and Territorial conciliation facilities) "of the existence of a dispute" within 30 days after the notice to the other party, if no agreement has been reached by that time; and continue the terms of the existing agreement "in full force and effect without resorting to strike or lockout" for a prescribed period . Each of these requirements is part of a comprehensive legis- lative design to establish a "cooling off" period in order, as Senator Taft put it, "to afford time for free collective bargaining, and time for the intervention of the Media- tion Service." (93 Cong. Rec. 3955.) RETAIL CLERKS, ETC. 767 Acceptance of the Respondents' interpretation of the phrase "notice of the existence of a dispute" would not effectuate the legislative purpose but, on the contrary, im- pose limitations upon it. Not infrequently, as is the case here, the first actual con- troversy arising from a proposal to modify a contract occurs more than 30 days after the service by one party upon the other of the prescribed notice that a modifica- tion is desired. If the party seeking the modification is not under a prior obligation, in such a situation, to notify the Mediation Service of his purpose, this would tend to reduce, rather than to encourage, the use of facilities provided by the Govern- ment for the implementation of "free collective bargaining." It is clear that Con- gress could not have intended such a result. It is far more reasonable to conclude that what Section 8 (d) (3) actually means is that its application does not hinge upon the existence of an actual dispute, but that a party seeking termination or modification notify the Mediation Service of his purpose within 30 days after serv- ing the prescribed written notice upon the other party, provided no agreement has been reached during that period. Accordingly, I find that Section 8 (d) (3) imposed a mandatory obligation io upon the Respondents to notify the Mediation Service, within 30 days after the re- opening notice to the Company, that the Union was seeking to modify the contract; that the Respondents did not comply with the requirements of Section 8 (d) (3); and that their failure to do so constituted a refusal to bargain collectively with the Com- pany in violation of Section 8 (b) (3) of the Act. The remaining question is whether the strike was unlawful because of the Union's noncompliance with Section 8 (d) (3). The General Counsel contends "that Con- gress intended the notice of dispute to be given as a condition precedent to going out on strike," and that the Union's omission infected the strike with the taint of illegality. No controlling authority is cited in support of that position. I am un- able to agree with the contention for reasons which will appear. Section 7 of the Act protects concerted activity in the form of a strike, and Sec- tion 13 embodies a congressional mandate that "nothing in this Act shall be con- strued so as to interfere with or impede or diminish in any way the right to strike." The congressional purpose to accord protection to the right is plain, and it is evident that unless some legal principle demonstrably requires a derogation of the right, a construction that noncompliance with Section 8 (d) (3) rendered the strike unlaw- ful is not permissible. On that score, it is well to note that there is nothing in the Act which requires compliance with Section 8 (d) (3) "as a condition precedent to going out on 'strike." That broad result, as applied to the facts of this case, is achieved by a construction of the Act by the General Counsel, which neither Section 8 (d) nor its underlying legislative history warrants, The basic theme of Section 8 (d) is to require parties, in a proper case, to bargain collectively concerning modification (or termination) of a contract, instead of re- sorting to the economic action of strike or lockout to achieve the result sought. Har- nessed with the congressional purpose is a "cooling off" period during which such ecnomic action is forbidden. The legislative design is made manifest by expressions in the Senate prior to the adoption of Section 8 (d). The Senate Report on S. 1126, from which the section was derived, states: Another substantive feature of this subsection is a provision which relates to employers and labor organizations which are parties to collective agreements. Most agreements have an expiration date, with an automatic renewal clause in the absence of advance notice by either side of a desire to terminate or modify. Under this section, parties to collective agreements in the future would be re- quired to give 60 days' notice in advance of the terminal date, if they desire to terminate or amend. Should the parties fail to agree on a new contract in the next 30 days, the party taking the lead in refusing the old contract has the duty to notify the new Federal Mediation Service of the impasse. Should the notice not be given on time, irrespective of the presence or absence of a 60-day clause in the collective agreement, it becomes an unfair labor practice for an employer to change any of the terms or conditions specified in the contract for 60 days or to lock out his employees. Similarly, it is an unfair labor practice by a union to strike before the expiration of the 60-day period. Any employee who engages in a strike during the 60-day period would lose any rights under Sections 8, 9, and 10 of the Wagner Act, unless and until he is reemployed. It should be noted that this section does not render inoperative the obligation to conform to notice 10 The obligation to give the notice specified in Section 8 (d) (3) Is mandatory in situa- tions to which it is applicable Engineers Local v. Dahlem Construction Company, 193 F. ' 2d 470 (C. A. 6). Cf. Boeing Airplane Co. v. N. L. R. B, 174 F. 2d 988 (C. A., D. C.). 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provisions for longer periods, if the collective agreement so provides. Failure to give such notice, however, does not become an unfair labor practice if the 60- day provision is complied with. (Sen. Rep. No. 105 on S. 1126, p. 25.) [Em- phasis supplied.] In discussing Section 8 (d) in the Senate, Senator Taft said: We have provided in the revision of the collective bargaining procedure, in connection with the mediation process, that before the end of the contract, whether it contains such a provision or not, either party who wishes to open the contract may give 60 days' notice in order to afford time for free collective bar- gaining, and time for the intervention of the Mediation Service. If such notice is given, the bill provides for no waiting except during the life of the contract itself. If, however, either party neglects to give such notice and waits, let us say, until 30 days before the end of the contract to give notice, then there is a waiting period provided during which the strike is an unlawful labor practice for 60 days from that time, or to the end of the contract and 30 days beyond that time. In that case there is no so-called waiting period during which a strike is illegal, but it is only brought about by the failure of the union itself to give the notice which the bill requires shall be given. So it seems to me to be no real limitation of the rights of labor unions. (93 Cong. Rec. 3955.) [Emphasis supplied.] The recurring theme in the cited legislative history is that where the 60-day notice is given, the duration of the notice is the "waiting" or "cooling off" period during which resort to strike or lockout is forbidden. That tends to negate the claim, necessarily implicit in the General Counsel's position, that where the 60-day notice is given, a strike after the expiration of the 60 days is unlawful. The provision for notice to conciliation services appears to be an ancillary feature of the longer notice period of 60 days which measures the "cooling off" period designed to bring about collective bargaining between the parties. What the General Counsel is urging, in effect, is that the limited "cooling off" period established by Section 8 (d) loses its limiting features where there is a failure to comply with Section 8 (d) (3). I can find no such intention in the Act. In short, the criterion for determining the legality of a strike for termination or modification of a contract, where a 60-day notice has been given, is to be found in Section 8 (d) (4) which prescribes the "cooling off" period before such a strike may be called. The question thus presented is whether the strike was brought within the "cooling off" or "waiting" period which Section 8 (d) (4) is designed to establish. The strike began on December 11, 1952, more than 60 days after the reopening notice was given, but before the expiration date of the contract. Section 8 (d) (4) imposes the obligation upon a party seeking modification of a contract to continue "in full force and effect without resorting to strike or lockout , all the terms and conditions of the existing contract for a period of 60 days after such notice is given or until the ex- piration date of such contract, whichever occurs later." [Emphasis supplied.] As the 60-day period which followed the reopening notice expired before the expiration date specified in the contract, a question arises whether the "cooling off" period applicable to the Union was the contract term or the 60-day period. The holding of the Board in United Packinghouse Workers of America, CIO, 89 NLRB 310, is dispositive of the question. There, as in this case, a strike was called more than 60 days after the service of a written notice of a desire to modify a contract, but prior to the expiration date of the agreement. Citing the excerpts, quoted above, from Senate Report No. 105 on S. 1126 and Senator Taft's statement, and concluding that the strike was not unlawful, the Board said: It cannot be denied that the result reached by the Trial Examiner is supported by a purely literal reading of Section 8 (d) (4), for the strike occurred before the termination date of the contract and that date "occurred later" than the end of the 60-day notice period. In our opinion, however, the results which follow from such a literal reading are patently unreasonable, and at variance not only with the broad policy of the Act, but also with the specific purpose of the proviso to Section 8 (d). If Section 8 (d) (4) is read so as to prohibit a strike for modification of a contract until that contract expires the concept of contract modification is rendered almost meaningless, and the Act will have de- stroyed the effectiveness of provisions contained in hundreds of collective bar- gaining agreements whereby the parties have agreed to consider wage and simi- lar adjustments during the term of the agreement, and, in the absence of a no- strike clause, have further recognized that demands made pursuant to reopening clauses may be supported by the traditional modes of economic pressure. Such a result would constitute a serious deterrent to the execution of collective bar- RETAIL CLERKS, ETC. 769 gaining agreements of any substantial duration, and would thereby remove a most important encouragement to stability in industrial relations. * * * * * * * Thus, in our view, the phrase "whichever occurs later" was specifically di- rected at a situation in which notice of a desire to modify or terminate a con- tract was given less than 60 days before the termination of the contract. Congress wished to make certain that in such a case the 60-day "cooling off" period would nonetheless be observed before a strike or lockout is resorted to. The expiration of the contract does not automatically permit strike action if the 60-day notice period has not expired by that time. For example, where notice is given 30 days before the expiration of the contract, the end of the 60-day notice period "occurs later" than the expiration of the contract and the parties must wait until 30 days after the expiration of the contract before taking economic action." It is immaterial that the United Packinghouse Workers case did not involve an issue of noncompliance with Section 8 (d) (3). As already pointed out, the decisive question, with respect to the legality of the strike, is whether it occurred within the "cooling off" period established by Section 8 (d) (4). In the light of the Board's construction of that section in the cited case, I find that the strike was not unlawful." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Company, 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 com- merce and the free flow of commerce. V. THE REMEDY As it has been found that the Respondents, in violation of Section 8 (b) (3) of the Act, have refused to bargain collectively with the Company by failing to notify the Mediation Service of the existence of a dispute within the meaning of Section 8 (d) (3) of the Act, within 30 days after the service of a notice upon the Company that the Union desired a modification of the contract, I shall recommend that the Respondents cease and desist in the future from violating Section 8 (b) (3) in that manner, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of the fact and of the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, Local No. 1179, AFL, is, and has been at all times material to this proceeding, a labor organization within the meaning of Section 2 (5) of the Act. 2. Esther Luther is, and at all times material to this proceeding has been, an officer and agent of the Union. 3. J. C. Penney Company is, and at all times material to this proceeding has been, an employer within the meaning of Section 2 (2) of the Act. 4. All store personnel employed in the Company's stores at Richmond, Pittsburg, and Martinez, California, excluding managers, assistant managers, confidential office employees, and supervisory employees as defined in the Act, constitute, and have constituted at all times material to this proceeding, a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. n The Board recently reaffirmed the holding of the United Packinghouse Workers case In Wilson & Co , Inc., 105 NLRB 823. v The Company has appended to its brief a memorandum opinion by a judge of the Superior Court of Contra Costa County, California, in an action for an injunction brought in that court by the Union against the Company to compel compliance by the latter with the contract. The court, in denying an application for a preliminary injunction because the Union had not complied with Section 8 (d) (3), termed the strike "illegal" because of noncompliance with the section It does not appear from the opinion whether the court had before it the legislative history cited above and the Board's reasoning and holding in the United Packinghouse Workers case. Be that as it may, much as I respect the court, I am unable to agree with its conclusion concerning the legality of the strike. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The Union is, and has been at all times material to this proceeding , the ex- clusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining , within the meaning of Section 9 (a) of the Act. 6. By refusing to bargain collectively with the Company, as found in section III, above, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean. ing of Section 2 (6) and (7) of the Act. 8. The strike and picketing activities described in section III, al'ove , have not contravened, and do not contravene, the Act. [Recommendations omitted from publication.] ROBERT C. LONG, D/B/A LONG ELECTRIC SIGN CO., EUGENE 0. HIGHFILL AND G. P. MOfiELL, D/B/A VALLEY NEON SERVICE; ALVIN E. THOMP- SON, D/B/A THOMPSON NEON & ELECTRIC CO. REINHOLD REICH, D/B/A LODI NEON SIGN . CO.; W. G. NIEDER, D/B/A STOCKTON NEON SIGN Co.; ELECTRICAL PRODUCTS CORPORATION and LOCAL UNION No. 591, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER. Case No. 2O-RC-2550. August 10, 1954 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Shirley N. Bingham, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer 1 is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.2 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner requests a unit of all production and maintenance employees at the Stockton, California, plants of the Employer, ex- cluding office and plant clerical employees, professional employees, guards, and supervisors as defined in the Act. The Employer concurs with the unit requested by the Petitioner. The Intervenor, Sign, 1 The Employer's name in the caption is amended in accordance with the stipulation of the parties at the hearing. 3 The motion of Sheet Metal Workers, Local 238, AFL, to intervene, which was referred to the Board , is denied as that labor organization was not in compliance with the filing re- quirements of Section 9 of the Act at the time of the hearing, produced no evidence of repre-_ sentation among the employees in either the sheet metal workers unit, which it contended was appropriate, nor the units requested by the other parties, and has no contractual rela- tionship with the Employer. Keller Fishing and Packing Company, 95 NLRB 163; Jordan Marsh Company, 85 NLRB 1503. 109 NLRB No. 112.