Montag Bros., Inc.

In the Matter of MONTAG BROS., INC., and UNITED WHOLESALE, RETAIL AND WAREHOUSE EMPLOYEES OF AMERICA, C. I. O. Case No. C-2630.-'Decided July 16, 1943 DECISION AND ORDER On June 1, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceedings, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist from the unfair labor practices found 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 supporting brief. No request for oral argument before the Board was made by any of the parties. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the respondent's brief and exceptions, and the entire record in the case and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner' 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 ordersthat the=respondent; Montag,,Bros., Inc., Atlanta, Georgia, its officers, agents, successors, 'and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Wholesale, Retail and Warehouse Employees of America, C. I. 0., or any other labor organi- zation of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to I In the section entitled "Conclusion" the Intermediate Report (page 7, line 5) errone- ously refers to the discharge of McCain and Kuykendall as of November 11, 1943. The correct date of discharges is November 11, 1942, as stated elsewhere in the Intermediate Report. 51 N. L. R. B., No. 75. 366 MONTAG BROS., INC. 367 their hire and tenure of employment, or any term or conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protec- tion, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole Lorene McCain and Ella Kuykendall for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them, by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages during the period from November 11, 1942, the date of the respondent's refusal to rehire them and their reinstatement on Janu- ary 4, 1943, less their net earnings during said period; (b) Immediately post in conspicuous places throughout its plant at Atlanta, Georgia, and maintain for a period of at least sixty (60) consecutive days from the date of the posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; and (3) that the respond- ent's employees are free to become and remain members of United Wholesale, Retail and Warehouse Employees of America, C. I. 0., and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (c) Notify the Regional Director for the Tenth Region, within ten (10) days from the date of the receipt of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Dan M. Byrd, Jr., and Mr. James T. Termini, for the Board. Mr. Barry Wright, of Rome, Ga. Mr. Madison Richardson, and Mr. Philip E. Shulhafer, of Atlanta, Ga., for the respondent. Mr. C. H. Gillman, of Atlanta, Ga., for the United. STATEMENT OF THE CASE Upon an amended charge duly filed on May 1 , 1943,, by the United Wholesale, Retail and Warehouse Employees of America , C. I. 0., herein called the United, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia ), issued its complaint dated May 4, 1943, against Montag Bros., Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting commerce within the meaning of Section 8 (1) and " (3) and" Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices of the hearing thereon were duly served upon the respondent and the United._ With respect to the unfair labor practices, the complaint alleges, in substance : (1) that from November 11, until December 31, 1942, the respondent refused to reinstate Lorene McCain and Ella Kuykendall , herein referred to as the com- plainants, employees who had remained away from work on November 9 and 10, 1942, "in sympathy for or because of, the strike" called by the Atlanta Printing Pressmen & Assistants Union No. 8, subordinate to International Printing Press- men & Assistants Union of North America, herein called the Pressmen , for the reason "that they had assisted or had become members of the [United] or had participated in or refused to work because of the strike" of the Pressmen ; and (2) by such refusal the respondent interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about May 12, 1943, the respondent filed its answer admitting certain facts as to its organization and the character of its business and conceding that it was engaged in interstate commerce within the meaning of the Act. The respondent further admits in its answer that the complainants did not work at its plant on November 9 and 10, 1942, and that it refused to reinstate them to their former or a substantially equivalent position on November 11, 1942. The respondent, however, denied that it had engaged in any unfair labor practices. Pursuant to notice a hearing was held in Atlanta, Georgia, on May 17, 1943, before Charles E. Persons , the undersigned Trial Examiner, duly designated by the Chief Trial Examiner . The Board and the respondent were represented by counsel and the United ' was represented by a union official . All parties par- ticipated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties . The respondent rested at the close of the Board 's presentation and did not 'call witnesses to the stand . Its participation in the hearing was limited to cooperation in the formulation of stipulations and assent thereto, and to cross-examination of the Board's witnesses. At the opening of the hearing the Board moved to require the respondent to make its answer "more definite and certain" with respect to its reasons for failing to reinstate the complaints November 11, 1942, on their request. This motion was denied with the proviso that if in the progress of the hearing the Board found itself surprised by the respondent's presentation, it might expect , on timely motion, to secure a reason- able amount of time to prepare its rebuttal . The respondent requested that "the'rule" be enforced providing that witnesses be excluded from the hearing room until called to testify . This request was granted except that the com- plainants as parties to the proceeding were not excluded.' At the conclusion of the hearing , counsel for the Board moved "to amend the pleadings to conform with the proof in minor matters, such as the spelling of names, dates, and the like." This motion was graritecl without objection. The Board presented oral argument before the Trial Examiner . This privilege was waived by the respondent and United. The parties were duly informed that briefs presented by them on or before May 27 , 1943, would be considered by the Trial Examiner. A brief presented by the respondent has been duly con- sidered by the undersigned. 11, Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : 1 1. 3 A third Board witness was excluded but was not thereafter called to the stand. MONTAG BROS., INC. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 369 The respondent, Montag Bros., Inc., is a Delaware corporation, licensed to do business in the State of Georgia. Its principal office and plant is located at 182 Marietta St., in the city of Atlanta, Georgia, where it engages in the manu- facture, sale, and distribution of social stationery, school tablets, and allied items. During the company's fiscal year ending March 31, 1942, the respondent pur- chased a substantial amount of raw materials consisting of paper, cardboard, ink, and other miscellaneous supplies. Over 80 percent of the total raw materials was purchased outside the State of Georgia. During this fiscal year the respond- ent's gross volume of business amounted to over $1,500,000, of which in excess of 80 percent was shipped outside the State of Georgia. The respondent admits that its operations affect commerce within the meaning of the Act. It further appears in evidence that the respondent's business has not changed substantially since March 31, 1942. At its principal office and plant at Atlanta, Georgia,, the company employs a total of about 350 workers.', H. THE ORGANIZATIONS INVOLVED United Wholesale, Retail and Warehouse Employees of America, C. I. 0., and Atlanta Printing Pressmen and Assistants, Union No. 8, subordinate to International Printing Pressmen and Assistants Union of North America, are labor organizations admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background The United was first organized in the plant of the respondent in April 1941. Shortly thereafter temporary officers were elected. On November 7, 1941, a consent election covering the entire plant, was held under the Board's auspices for the purpose of determining whether or not the employees desired to be rep- resented by the United. The United lost the election and thereafter its members were less active in their advocacy of this union. Kuykendall testified, "We felt like after we lost the election it was to - we didn't work as hard on it as we did, we were just going to let it rock along a little while." Very shortly after losing the election the employees of the papeterie department as a group con- ferred with the management and secured an increase in wages. This was done without reference to the United. The Pressmen began an attempt to organize the employees of the printing department of the respondent early in November 1942 On November 4, 1942, this union filed a petition with the Board for investigation and certification of representatives. The appropriate unit desired covered only the employees in the printing department of whom there were about 22. Notice of hearing was issued an November 5, providing for a hearing duly held on November 10, 1942.8 A controversy developed between the respondent and the Pressmen over the ex- tent of the appropriate unit. On November 9 the Pressmen struck without pre- vious warning and picketed the plant. The parties agree that this strike was not authorized by appropriate union authority and did not result from any unfair labor practices on the part of the respondent. It directly involved 22 out of the 350 employees in the plant. Picketing continued at least until December 23, 1942. 2 These findings are based on a stipulation of the parties which was incorporated in the- record and on allegatioh1s In the complaint admitted by the respondent in its answer. 3 The United, through a C. I. 0. official , disclaimed any interest in this proceeding. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The refusal to reinstate Lorene McCain and Ella Kuykendall The findings in this Section are based on the testimony of McCain and Kuy- kendall which was not refuted since the respondent placed no witnesses on the stand. Their testimony was mutually corroborative, was not shaken on cross- examination and is credited by the undersigned. McCain_ and Kuykendall were of long service in the papeterie department. McCain was first hired in 1924. After approximately 4 years of employment she was,out of the plant'5 years. On returning some time'in 1933 she was employed "fairly steadily" for approximately 9 years until November 9, 1942. Kuykendall was first hired in 1924 and was thereafter employed until some time in 1929. She returned about July 30, 1937, and was continuously employed until November 9, 1943, that is, for over 6 years. Nothing in the record suggests that the service of either McCain or Kuykendall was not entirely satisfactory. On November 12, 1942, after their employment had been definitely terminated they were told by Harold Montag, president of the firm, as stated in her testimony by Kuy- kendall: "Ella, ... I want you and Lorene both to know I am sorry this has happened, and that you know and I know you are the best two girls I have ever had in this plant.... I'll have to 'put two,-I mean three or four girls to fill your places." On this occasion Montag further said, "that the majority of his employees showed him the year before that they didn't want a union, and that if it kept flaring up he was going to have to close,his doors."' Both McCain and Kuykendall were recognized leaders in the activity relating to the organization of the United. McCain was elected vice president shortly after organizational efforts began. About a week before the election she, together with another employee,5 was directed by Superintendent Joseph A. Smollin to cease visiting other floors than that on which she worked. McCain testified that she had no duties on these floors, "but was trying to organize the CIO." Kuykendall was selected by the United to check the respondent's pay roll at the Board office before the election of November 7, 1941. Smollin directed her to leave her work for this duty. At the Board office she met Personnel Director Philip Shulhafer. Kuykendall described this "as a very unpleasant meeting." However, she served as the United observer at the election and maintained friendly relations with Shulhafer there and later. On November 9, 1942, when McCain and Kuykendall came to work in the morn- ing they found the printing department on strike and pickets on duty before the plant. They did not cross the picket line but remained in the vicinity of the plant during the working hours of the forenoon and the closing hour of the afternoon. Both were approached by Smollin during the morning and questioned about their failure to report. They attended a Pressmen meeting at the Piedmont Hotel that noon where the causes of the strike were explained. Kuykendall signed Pressman application card which she withdrew next day. McCain did not apply for membership. She had been approached about a week earlier and McCain's testimony was to substantially the same effect : "Ella, Lorene, I want you to know I am sorry this has all happened, for you know that you are two of the best workers I have in the entire plant." He said he couldn't understand why we came out on strike since we were making as much money as the majority of his men in the plant, he said, since it was only the printers trying to organize. He said "Last year, my employees, a majority of them, didn't want a union" and he said he couldn't understand us. McCain further testified that Montag said he was not opposed to a union and "if these things kept flaring up that he was going to close the front door." Rheba Butler Almond. 5 MONTAG BROS., INC. 371 asked to take part in the Pressmen campaign. She refused because "I had worked so hard in the C. I. O. and I really didn't want to work with them." On November 10, also, McCain and Kuykendall did not enter the plant but remained in its vicinity. McCain stated her reason for remaining out of the plant as follows : "Well, when I saw the picket line I didn't know what it was all about. I didn't go in." Under cross-examination she testified : "I couldn't cross the picket line because my father-in-law was AF of L and then I was afraid also to cross it." Kuykendall, in response to a similar question, testified "Well, my husband is affiliated with the AF of L in the Electric Workers, and I have always known not to cross the picket line, because I didn't know whether I would affect his job, I didn't go in." On the morning of the second day of the strike Smollin came to the car in which Kuykendall was sitting with another employee and said "I don't understand what this is all about. You all didn't act this way last year ... But whenever you get ready to come in, your job is waiting for you. I told you you had a job as long as I had one." At about the same time Smollin made a similar statement to McCain. On the evening of the second day of the strike McCain and Kuykendall con- sulted with McCain's father-in-law, who was a member of an A. F. of L. railroad union. Kuykendall also discussed her position in the strike with her husband's business agent in the "Electric Workers." Each of these persons advised the complainants that since they would not take the job of anyone else if they returned to their employment, they should go back Accordingly each of the complainants called Smollin that evening, stating they were ready to return to work and asking if their jobs were still open. Smollin told them that several of the employees who had remained away from work had made similar inquiry of him and that they should call at the office in the morning, that is, November 11, 1942. About a dozen of the employees who had refrained from work although not in the press department were at the office next morning. They were inter- viewed by Shulhafer in the presence of Smollin and one, Guthman, whose exact function in the plant is not defined by the record A stenographer was present also and took notes. Twos of the women employees present were told their jobs had been filled and that they were dismissed. All of the others interviewed, except McCain and. Kuykendall, were offered reemployment. Shulhafer asked each of the complainants why she had remained away from work on November 9 and 10. Their answers were in accord with the reasons stated above Shul- hafer asked McCain why she was afraid to cross the picket line since police protection had been provided. McCain explained that she "understood that Mrs. White got a whipping down there the day before." To Shulhafer's further inquiry who she decided to come in today, McCain quoted her father-in-law's advice. After his preliminary question of Kuykendall: "Why didn't you come to work?" and her answer, Shulhafer said : "Well, you believe in unions, don't you?" Kuykendall's testimony at this point reads as follows : I told him yes, that I believe in organized labor, but I said I didn't know anything about this strike until this morning when I come across the bridge and seen those banners wave. He said "We are not here to judge your innocence." I told him I knew he was not, but I was telling him. McCain testified that Shulhafer told her "It's like this, some of the girl,s said, Mrs. McCain, they refused to work with you, and if I let you go upstairs to go to work, there will be several of them come down." Kuykendall testified that Shulhafer's statement to her was "Well, it's like this, if we let you go upstairs there is going to be several of the girls come down, they have refused to work ° Doris Patillo and Bootsey Lisle. 540612-44-vol. 51-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with you." McCain and Kuykendall inquired of both Shulhafer and Smollin who had refused to work with them and for what reason . Neither gave them any information. Each of the complainants positively denied having given their associates any reason for refusing to work with them. During her interview McCain asked Shulhafer : "I am fired, am I not?" He replied "Not exactly that." Kuykendall asked "Well , do you want to give me my time or what?" Since at the close of these interviews the complainants were paid in full, removed all their belonging from their work places; and their places were filled, their dismissal constituted a discharge and the undersigned so finds. They were escorted to their work places by Guthman to make an accounting of piece work accomplished and to gather up their personal belongings. Next day they returned for some forgotten articles and were met by President Montag who made the statements to them quoted above.7 The respondent admitted on the record that at the time the employment of the complainants was terminated neither of their positions had been filled . Later their work was taken over by employees transferred from other duties in the papeterie department. On December 31, 1942, Shulhafer telephoned to each of the complainants asking them to come down and talk with him about returning to their jobs. They went to the plant together next morning, January 1, 1943. Shulhafer told them, "We was told to put you two ladies back to work on your same table , same jobs, at the same pay." McCain and Kuykendall accepted this offer and returned to work the following Monday morning January 4, 1943. At the time of the hearing they had been continuously employed since that date. CONCLUSION It thus appears in the record that McCain and Kuykendall were competent and acceptable employees for periods of 9 and 6 years respectively immediately before their discharge on November 11, 1943. Their services were highly praised by President Montag on the following day. The respondent gives as a reason for their discharge that other employees , not named, had refused to work with them. In its brief respondent suggests that such refusal arose from "wholly personal reasons." No affirmative proof supports this suggestion . Both com- plainants when interviewed on November 11, 1942, positively denied that any basis existed for such an attitude on the part of their fellow employees. Re- spondent's brief correctly states that during the period when McCain and Kuy- kendall were active in United "there was not any discord whatever " between them and their fellow employees . Nor does the record include any suggestion that such discord developed during the strike. Respondent had full knowledge of the participation of McCain and Kuykendall in the concerted activities on November 9 and 10. Each complainant based her participation therein primarily on her disinclination to cross a picket line and on sympathy for the A. F. of L.8 adherence of a near relative . Such concerted - action is lawful and is accorded full protection by the Act. When on the evening of November 10 the complainants made an unconditional request for reinstatement, coupled with reference to their concerted activities, Superintendent Smollin stated that several other employees similarly circum- stanced had made like requests . He directed them to report for an interview next morning. Personnel Director Shulhafer first questioned each of them about 7 See p. 4, and footnote 4. 6 Throughout the hearing both complainants habitually referred to the Pressmen as A F. of L. MONTAG BROS., INC. 373 her reason for failing to report and elicited the information that they were disinclined to cross a picket line and feared doing so might prejudice the standing of near relatives in the A. F. of L. Their strike activities were the only subject discussed in their "exit" interview. It is a necessary conclusion that this was the consideration which influenced Shulhafer in refusing to reinstate them. It will not be forgotten in this connection that Shulhafer , a year previous, had a meeting with Kuykendall , described by her as "very unpleasant," when they jointly checked the pay roll before the consent election. Further clear indication of the underlying cause for discharging and refusing to rehire the complainants is contained in the interview which they had with President Montag on the day following their discharge . Montag clearly inti- mated that these valuable and highly paid employees would not have been dis- missed were it not for their share in union and strike activities , the continuation of which might cause him "to close the front door" of his plant. Ten or a dozen other employees who had shared in the concerted activities of November 9 and 10, and whose places had not been filled, were reinstated on November 11. McCain and Kuykendall were the only employees so circumstanced who were refused reinstatement. This discrimination in the terms and condi- tions of their employment plainly resulted from the respondent 's recognition of their position of leadership among the employees of the papeterie department. About 24 of the 32 working in that department did not report on November 9 and 10. Under the- circumstances established by the record the undersigned is convinced and finds that both the discharge of the complainants and the re- spondent's refusal to rehire them until January 4 , 1943, were based on their activities in the United and on their participation in the Pressmen 's strike. The undersigned finds that the discharge of Lorene McCain and of Ella guyken- dall by the respondent on November 11, 1942, and its refusal to rehire them until January 4, 1943, were discriminatory , based on their union and concerted activi- ties, having the effect of discouraging membership in the United . By thus dis- charging and refusing to rehire McCain and Kuykendall until January 4, 1943, the respondent discriminated in regard to their hire and tenure of employment and interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. The undersigned has found that the respondent refused to reinstate Lorene McCain and Ella Kuykendall on November 11, 1942, on their application, and discharged them because of their union and concerted activities , thereby dis- criminating in regard to their hire and tenure of employment . To effectuate the policies of the Act it will be recommended that the respondent make them whole for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them by payment to each of them of a sum of money equal to 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amount which she would normally have earned as wages from Novem- ber 11, 1942, the date of their discharge and of respondent's refusal to reinstate them, to the date of their reinstatement by the respondent on January 4, 1943, less their net earnings9 during said period. Upon the basis of the above findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Wholesale, Retail and Warehouse Employees of America, C. I. 0., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Lorene McCain and Ella Kuykendall, and thereby discouraging membership in United Wholesale, Retail and Warehouse Employees of America, C. I. 0., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of section 8 (3) of the Act. 3. 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. 4. 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 recommends that the respondent, Montag Bros., Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Wholesale, Retail and Warehouse Employees of America, C. I. 0., or any other labor organization of its employees, by discharging any of its employees or refusing to reemploy them, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or, coercing its employ- ees, in the exercise of their right to self-organization, to form, join, 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 affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Make whole Lorene McCain-and Ella Kuykendall for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by the payment to each of them of a sum of money equal to that which she would normally have earned as wages during the period from November 11, 1942, the 9 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by these employees in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the respondent's discrimination against them and the consistent necessity of their • seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440. Monies received for work performed upon Federal, State, county, municipal or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. MONTAG BROS., INC. 375 date of the respondent's refusal to rehire them and their reinstatement on Janu- ary 4, 1943, less their net earnings 10 during said period ; (b) Immediately post in conspicuous places throughout its plant at Atlanta, Georgia, and maintain for a period of at least sixty (60) consecutive days from the date of the 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; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations; and (3) that the respondent's employees are free to become and remain members of United Wholesale, Retail and Warehouse Employees of America, C. I. O. and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Direc- tor 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 proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. yA.s 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. CaARI.ES E. PERSONS, Trial Examiner. Dated June 1, 1943. 10 See footnote 9, supra.