Lucas County Farm Bureau Co-Operative Association

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lucas County Farm Bureau Co-Operative Association and American Federation of Grain Millers , Local 58, AFL-CIO. Case No. 8-CA-1952. August 5, 1960 DECISION AND ORDER On March 22, 1960, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 brief, and the entire record in the case,' and hereby adopts the findings,2 conclusions,' and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner, and for the reasons set forth in the Intermediate Report, that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to meet and negotiate with the Union following that Union's certification by the Board and its requests to bargain. 2. We also agree with the Trial Examiner that the Respondent further violated Section 8 (a) (5) and (1) by changing the terms and conditions of employment of employees Miller and Gruben without consulting the Union. Contrary to the Respondent's contention, the job classification occupied by these two employees was included by the Board in the certified unit. In the representation proceeding,4 the Board included all "truckdrivers," a classification then occupied by 1 The Respondent 's request for oral argument is hereby denied as the record , exceptions, and brief adequately present the issues and the positions of the parties. 2 As it is unnecessary to our determination of the issues in this case, we do not pass upon the statement of the Trial Examiner to the effect that the Respondent was under a duty and legal obligation to bargain with the Union as regards transfers of employees to job classifications outside the certified unit. 3 In his Conclusions of Law numbered 2, the Trial Examiner , apparently inadvertently, omitted certain words from the unit description . This is corrected by the insertion after the words "plant clerical employees ," the words "but excluding all office clerical employees." * Lucas County Farm Bureau Co-Operative Association , Case No. 8-RC-3367, decided April 7, 1959, unpublished 128 NLRB No. 56. LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN. 459 Miller, and one into which Gruben was subsequently transferred. While the Board did exclude "full-time outside salesmen" from the unit, the Board's decision and direction of election makes it clear that this exclusion applied only to the salesman who acted as contact than to the Respondent's customers and spent most of his time on the road. The Board did not exclude truckdrivers such as Miller, who in addition to their truckdriving duties performed some sales func- tions. Accordingly, by unilaterally changing terms and conditions of employment in the truck-drivers' job classification which was within the certified unit, the Respondent violated Section 8(a) (5) and (1) of the Act. We find it unnecessary to determine whether Gruben, prior to his transfer to the truckdriving classification, held a position outside the unit, since his transfer clearly brought him within the unit and to a job the terms and conditions of which the Respondent could not law- fully unilaterally change. 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 Respondent, Lucas County Farm Bureau Co-Operative Association, Maumee, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Taking unilateral action, without consulting the Union, by changing the terms and conditions of employment of employees in the appropriate unit. (b) In any other manner refusing to bargain collectively with the Union as the exclusive representative for purposes of collective bargaining of all its employees in the appropriate unit. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the Union or any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the Union as the ex- clusive representative of employees in the appropriate unit, with respect to rates of pay, wages, hours of work, and other conditions 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Maumee, Burkee, and Curtice, Ohio, copies of the notice attached hereto marked "Appendix." 5 Copies of the notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply therewith. 5In 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." APPENDIX NOTICE TO ALL EMPLOYEES 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 notify our employees that : WE WILL, upon request, bargain collectively with American Federation of Grain Millers, Local 58, AFL-CIO, as the ex- clusive representative of all our employees in the unit described below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers, yardmen, warehousemen, and mill and grain department employees at our Maumee, Burkee, and Curtice, Ohio, plants, including plant clerical employees, but exclud- ing all office clerical employees, full-time outside salesmen, foremen, and other supervisors as defined in the Act. WE WILL NOT, by refusing to bargain with the Union or in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist American Federation of Grain Millers, Local 58, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN. 461 other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSOCIATION, Employer. 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 This proceeding was heard before the duly designated Trial Examiner of the National Labor Relations Board, herein referred to as the Board, in Toledo, Ohio, on December 1, 1959, on the amended complaint of the General Counsel of the Board and answer of the Respondent, Lucas County Farm Bureau Co-Operative Association, of which more anon. The issues litigated were whether in violation of Section 8(a)(1) and (5) the Respondent refused to bargain with American Federation of Grain Millers, Local 58, AFL-CIO, herein referred to as the Union, the duly certified bargaining representative of its employees in a unit previously found appropriate by the Board in Case No. 8-RC-3367 (unpublished), of which more anon below. Since the amended complaint contains an allegation which has gravely concerned the Trial Examiner in his ultimate findings herein, he feels that a resume of the allegations in the complaint as amende dand the Respondent's answers thereto should be set forth in some detail herein. The complaint as amended alleges the usual jurisdictional facts and then in sub- stance alleges certain specific dates on which the Union requested and the Respondent failed and refused to meet and bargain with the Union's representatives. The amendment to the complaint which was served on the Respondent on or about November 19, 1959, is, in the considered opinion of the Trial Examiner of the utmost importance, because to him, to say the least, it is the most controversial issue in the entire case. An excerpt therefrom follows below: On or about November 1, 1959, Respondent, without consulting the Union, changed the terms and conditions of employment of Orville C. Miller and Ollie Gruben, employees in the unit set forth in paragraph 7 heretofore, by requiring said employees to enter into written agreements changing their wages, hours and terms and conditions of employment, and by entering into such agreements with said employees without consulting the Union. In due course the Respondent filed (1) its answer to the original complaint and (2) an answer to the amended complaint. Since the record clearly shows that the Respondent's main contentions in opposition to the allegations in the complaint are that, (1) the Board lacks jurisdiction over the Respondent's business operations; (2) it was under no legal obligation to bargain with the Charging Union until such time as the Respondent "has had an opportunity of a judicial review as to the lawful- ness of the assertion of jurisdiction" over by the Board; and (3) as regards the allega- tions in the amendment to the original complaint, the Respondent denied that its dealings with the two employees named therein, Gruben and Miller. was violative of the Act because both were in categories specifically excluded from the appropriate 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit found by the Board in the representation Case No. 8-RC-3367 (unpublished), of which more anon below. At the close of the hearing herein the parties were advised of their rights as regards oral argument before the Trial Examiner, and to file proposed findings of fact and conclusions of law and briefs in support of their respective positions. Only the General Counsel chose to present oral argument. Proposed findings of fact and conclusions of law and a brief in support thereof were received from counsel for the Respondent on or about December 31, 1959. They have been carefully con- sidered by the Trial Examiner, and will be further discussed and disposed of herein below. Upon the basis of the entire record in the case, and from his observation of the witnesses who testified at the hearing herein, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT In the R case referred to above, Lucas County Farm Bureau Co-Operative Asso- ciation and American Federation of Grain Millers, Local 58, AFL-CIO, Case No. 8-RC-3367 (unpublished), the Board in its Decision and Direction of Election, dated April 7, 1959, found as follows as regards the Respondent's business activities: The Employer is a farmers ' cooperative association engaged in the marketing of grain, processing seed and feed for its members , and in retail sales to its members and to the public. In connection with its conceded retail operations, the Employer purchases over $35,000 worth of goods from out of state, and has sales in excess of $500,000. The fact that 50 percent of the Employer's total receipts "must be derived from doing business" with its members does not render inapplicable our retail standard. Accordingly, as the Employer's retail operation satisfies that standard, we find, contrary to the Employer, that it is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. See Carolina Supplies and Cement Co., 122 NLRB 88. In the circumstances the Trial Examiner finds that the Respondent at all times material herein has been and is now engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED American Federation of Grain Millers, Local 58, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. TH. THE ALLEGED UNFAIR LABOR PRACTICES Preliminary Statements The Respondent's position as regards the issues herein is well stated in its opening statement, its "Proposed Findings of Fact and Conclusions of Law," and its brief in support thereof. An excerpt from its "Proposed Findings of Fact and Conclu- sions of Law" in this regard follows below: ' 1. The matter came before the Trial Examiner at this time on the Complaint and Amendment to the Complaint and testimony was introduced and taken. The specific charge of unfair labor practices before the Trial Examiner at this time is set forth in Paragraph 11 of the Amendment to Complaint , reading as follows: 11. Since on or about June 26, 1959, and at all times thereafter, Re- spondent did refuse and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees in the unit described above in Paragraph 7, by refusing to meet, discuss and/or nego- tiate with the Union with respect to wages, hours, and other conditions of employment, notwithstanding the fact that the Board has certified the Union as the collective bargaining representative. On or about November 1, 1959, Respondent, without consulting the Union, changed the terms, and conditions of employment of Orville C. Miller and Ollie Gruben, employees in the unit set forth in Paragraph 7 heretofore, by requiring said employees to enter into written agreements changing their wages, hours and terms and conditions of employment , and by entering into such agree- ments with said employees without consulting the Union. LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN. 463 2 The Examiner first finds that the employer, Lucas County Farm Bureau Co-Operative Association, appeared at the hearing pursuant to objection and entered a special appearance without admitting or submitting to the jurisdiction of the National Labor Relations Board over the business of the employer and solely for the purpose of protecting its rights as against such charge, and claimed and asserted that the exercise of jurisdiction over its business by the NLRB was contrary to its constitutional and lawful rights. 3. The Trial Examiner next finds, in connection with the charge of refusal to bargain, that such charge is supported by the evidence that no proof of failure to bargain has been established and that the same should be dismissed. The Trial Examiner specifically finding that G.C. Exh. 3-A, being a request to commence negotiations, was prematurely filed in that the order of certification was not final at that time; that G.C. Exh. 3-C was never refused nor was G.C. Exh. 3-F, both of the same being answered by G.C. Exh. 3-D, G.C. Exh. 3-E and G.C. Exh. 3-G. There is no evidence of any set date ever having been set by the representatives of petitioner at which employer or his representatives failed to appear for the purpose of collective bargaining and likewise, the oral testimony of Deloy Sattler, manager of the employer association, establishes there has never been an outright refusal to bargain with petitioner. (T. 68-70.) 4. The Trial Examiner next finds that the action of the employer in changing the terms and conditions of employment of the two named employees does not constitute an unfair labor practice under the Act for the reason that said em- ployees are not included in the appropriate bargaining unit for collective bar- gaining purposes as established by the Board, but are specifically excluded from the same as being "full time outside salesmen , managers, and/or supervisors." Specifically, the unit certified by the Board in this case was to include: All truckdrivers, yard men, warehousemen, and mill and grain department employees at the Employer's Maumee, Burkee, and Curtice, Ohio plants, including plant clerical employees, but excluding all office clerical em- ployees, full-time outside salesmen, foremen, and other supervisors as de- fined in the Act. See G.C. Exh. 2-B. 5 The uncontradicted testimony of Orville C. Miller, one of the employees concerned in this charge, clearly establishes he was not included in the ap- propriate unit for collective bargaining purposes, see testimony in the Tran- script pages 36-37, wherein he uncategorically admits that prior to the certifica- tion date and since the certification date, he has been an "outside tank truck salesman." The uncontradicted testimony of the other involved employee clearly estab- lishes that prior to January of 1959, he was "branch manager" of the Curtice store; that from January on he was "manager" of the Maumee store; and that at the time of the election and since then, he has been employed as a "tank truck salesman" working in the territory outside the stores. (T. 39, 40-43.) For reasons set forth below the Trial Examiner rejects the Respondent's "Pro- posed Findings of Fact and Conclusions of Law." A. Background The record shows that the Union filed an RC petition with the Board's Regional Office in Cleveland, Ohio, on January 21, 1959, which was designated Case No. 8-RC-3367 (unpublished). Thereafter a representation hearing was held in Toledo, Ohio, before John Sincek, hearing officer, on February 9, 1959. On April 7, 1959, the Board issued its "Decision and Direction of Election." Since the evidence ad- duced at the hearing herein in support of the General Counsel's complaint as amended has raised a serious problem as regards the status of certain employees who participated in the election the Trial Examiner feels that the following excerpts from the Board's "Decision and Direction of Election" should be inserted herein for the perusal of all concerned.' The Trial Examiner after careful consideration and with full knowledge of the Board's policy of the impropriety of a Trial Examiner to reconsider pertinent and basic findings of the Board in a representation case, as the Board has stated in cases too numerous to cite ad infinitum herein ( see National Van Lines, 117 NLRB 1213, 120 NLRB 1343, and 123 NLRB 1272 ), however where as here there is an obvious inadvertent error in the last sentence of footnote 3 in the Board 's Decision and Direction of Election in 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act 2. The labor organization(s) named below claim(s) to represent certain employees of the Employer.2 3. A question affecting commerce exists concerning the representation of certain employees of the Employer, within Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within Section 9(b) of the Act: 3 All truckdrivers, yard men, warehousemen, and mill grain department employees at the Employer's Maumee, Burkee, and CuTtice, Ohio, plants, including plant clerical employees, but excluding all office clerical em- ployees, full-time outside salesmen, foremen, and other supervisors as_ defined in the Act 1 See above "The business of the Respondent " 2 We are presently administratively satisfied that the Petition is in compliance, Standard Cigar Company, 117 NLRB 852. and that its showing of interest is ade- quate. 0. D. Jennings d Company, 68 NLRB 516. 3 The parties agree that the unit includes the employees at the Employer's three locations in Maumee, Burkee and Curtice, Ohio, but dispute the unit placement of certain categories, all of whom the Petitioner would exclude The record shows that the branch managers at Burkee and Curtice and the petroleum manager at Maumee have authority to hire and discharge their subordinates, and that the manager trainee at Maumee, responsibly directs the work at that branch, attends super- visors' meetings, and may grant time off for short periods. We exclude these individuals. The Employer also seeks to include the full-time outside salesman at Maumee who acts as contact man to customers, spends most of his time on the road, has little contact with other employees, sets his own hours and reports directly to the General Manager rather than the branch manager. Contrary to the Employer, we find that his interests are dissimilar from the other mill employees and therefore exclude him. The two office clerks at Maumee, perform customary secretarial duties in the general office, do not enter the mill, are salaried and work a different work week from the other employees. We exclude them as office clerical employees. Two clerks at Burkee sell over the counter, stock merchandise, keep inventory records and also weigh the trucks of grain. As their duties are primarily those of plant clericals, we include them in the unit. the representation case involved herein [Case No 8-RC-3367], he honestly feels that the error should be called to the Board 's attention because it does have a vital bearing on the issues in the instant case . The Trial Examiner has reference to the following language in the footnote mentioned above : . . . The record shows that the branch managers at Burkee and Curtice and the petroleum manager at Maumee have authority to hire and discharge their sub- ordinates , and that the manager trainee at Maumee, responsibly directs the work at that branch, attends supervisors ' meetings , and may grant time off for short periods. We exclude these individuals. The record in the R case clearly shows that the manager of the Maumee store was Robert Foust, and that the manager of the Curtice store was one Ronald Sattler con- cerning whom there was a host of testimony in the representation hearing The Trial Examiner feels that the 'following excerpt from the testimony of Deloy B. Sattler, general manager of the Lucas County Farm Bureau Co-operative Association, the Respondent herein, in this regard should be brought to the attention of the Board (front page 48, official transcript of the record in Case No 8-RC-3367) : Re-direct Examination Q And, you have a man bearing the designation of manager at the Curtice Branch, Ronald Sattler. Specifically, what does he perform and what authority if any, does he have" A. He directs the activities of the other two employees I have not at this particu- lar time given hint, the poker to hire or fire employees since lie is new on the job and rather young. I'm reserving the right to hire and fire for myself. [Emphasis supplied.] Further examination of the R record clearly shows that Ronald Sattler was at the time the Board considered the representation case designated as branch manager of the LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN. 465 Thereafter, pursuant to the Board's "Decision and Direction of Election," an election was "conducted by mail" among the employees in the unit found appro- priate by the Board on April 27, 1959. It is important to note at this time that the list of employees to whom ballots were mailed was furnished to the Board's repre- sentative in charge of the election by the Respondent before the election. The tally of ballots shows that there were 14 employees on the list. The election was won by the Union, 11 to 3. Insofar as the instant proceeding is concerned there are two important facets in the tally of ballots that have had considerable bearing on the Trial Examiner's ultimate findings herein. They are as follows: (1) The Re- spondent's "authorized observer" was D. B. Sattler, general manager of the "Lucas County Farm Bureau Co-operative Association," at all times material herein; and (2) there were no challenged ballots. On May 18, 1959, the Respondent filed "Objections to the Conduct of the Elec- tion," in which it contended inter alia as follows: (2) Agents of the National Labor Relations Board obtained the signature of the employer's Manager to a certification that the tally of ballots and tabulating of the same was fairly and accurately done, and to a certification as to the conduct of the election to the effect that the election was properly con- ducted, all without submission of such certification forms to counsel for examina- tion, study and advice. It is significant that nowhere in the Respondent's objections to the election does it mention the status of the employees named in the complaint as amended, Orville C. Miller and Ollie Gruben. On May 28, 1959, the Regional Director for the Eighth Region, issued his report on objections in which he found that ". . . there has been no irregularity in the conduct of this election which would warrant setting it aside, and it is there- fore recommended that the objections be overruled." On June 3, 1959, the Respondent by its counsel, requested an extension of time in which to file exceptions to the report of the Regional Director on objections to the conduct of the election. Shortly thereafter the Board granted the Respondent's request and extended the date for filing exceptions to the Regional Director's report to June 17, 1959. On June 22, 1959, the Board issued its "Supplemental Decision and Certification of Representatives" in the representation case, Case No. 8-RC-3367, hereinafter referred to as the R case, in which it found inter alia as follows: No timely exceptions were filed to the Regional Director's report by any of the parties within the time provided therefor.' We therefore adopt the recom- mendations of the Regional Director as contained in his report. The Objections are hereby overruled. 'At the request of the Employer, the Board extended the time for filing excep- tions to the Regional Director's report to Julie 17, 1959. On June 18, 1959, the Board received exceptions from the Employei, which are rejected as untimely filed within the meaning of Section 102.09 and 102.91 of the Board's Rules and Regulations. In passing the Trial Examiner desires to point out that the Respondent, in sup- port of its exceptions to report on objections to election, filed a memorandum in support of exceptions, which as indicated above were untimely filed and hence not considered by the Board. Nevertheless the Trial Examiner feels that he should consider it in his determina- tion of the issue herein, primarily because it was offered and received in evidence Curtice, Ohio, store of the Respondent herein, and that his authority was limited as such. Clearly it was he that the Board referred to as a "Manager trainee," in its decision In the circumstances discussed and described above the Trial Examiner feels com- pelled to point out to the Board that in footnote 3 in Case No. 8-RC-3367, the last sentence thereof should be corrected to read as follows- The record shows that the branch managers at Burl,ee and Maumee and the petroleum manager at Maumee have authority to hire and discharge their sub- ordinates, and that the manager trainee at Cwtice, responsibly directs the work at the branch, attends supervisors' meetings, and may grant time off for short periods We exclude these individuals. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without objection as one of the General Counsel 's exhibits at the hearing herein. In its memorandum in support of its objections to the election the Respondent makes no mention of the employees named in the amended complaint for reasons which will become apparent below the Trial Examiner feels that this factor should be brought to the attention of all concerned. On June 24 , 1959, counsel for the Respondent filed a motion for vacation of supplemental decision and certification of representatives and for reconsideration of exceptions on objections to conduct of election. On June 29, 1959, the Board denied the Respondent's request for vacation and reconsideration. At the hearing herein counsel for the General Counsel and counsel for the Respondent entered into a stipulation in the form of a request . that the transcript in the representation hearing in this matter be incorporated by reference into these proceedings." The Trial Examiner accepted the stipulation of the parties with the modification that he under no circumstances "could reach a different con- clusion" than the Board . The parties agreed on the record to the Trial Examiner's statement in this regard. An examination of the exhibit file in the R case shows that on July 27, 1959, the Respondent filed a complaint "In the United States District Court for The North- ern District of Ohio, Western Division " against the members of the board and the Charging Party' herein, Civil Action No. 8253. The gist of its complaint was that "Plaintiffs objections to the jurisdiction of the NLRB . . . [and] to the actions of the agents of th NLRB have been arbitrarily and capriciously overruled by members of the NLRB all to plaintiffs constitutional rights and in violation of the intent and purpose of . . . the National Labor Relations Act." The complaint requests that the court reverse the Board's determination that plaintiff is subject to the jurisdiction of the board, and set aside the results of the election.2 On December 15, 1959, the court "Ordered that Plaintiff's Complaint be dis- missed and Plaintiff's Motion for Injunction Pendente Lite be and the same hereby is denied . Frank L. Kloeb, Judge, United State District Court." The Trial Examiner has inserted the foregoing excerpts from the proceedings in the district court because the Respondent in its answer , its opening statement, its proposed findings of fact, and its brief in support thereof will not bargain with the Union until it has had the opportunity of a judicial review as to the lawfulness of the assertion of jurisdiction over its business activities by the Board In the circumtances the Trial Examiner felt compelled to set forth in considerable detail the position of the Respondent in this regard. B. The refusal to bargain For the most part the General Counsel's case-in-chief as to the alleged violation of Section 8(a)(5) and ( 1) of the Act was presented in documentary form. By that statement the Trial Examiner has references to correspondence between the Union and the Respondent in this regard. On June 25 , 1959, Fred Kunz, president and business representative of the Union, sent the following letter to the Respondent by registered mail: JUNE 25, 1959 Mr. DELOY SATTLER, MANAGER Lucas County Farm Bureau Co-Op Association Monclova Road Maumee, Ohio DEAR MR. SATTLER : I and the Union Committee would like to meet with the Company Representatives to commence negotiations for a contract as soon as possible. Please let me know by return mail when you will meet with us. Yours truly, FRED KUNZ President & Bus. Repr. Local #58 On June 26 , 1959, the Respondent by its counsel, Ralph Boggs , replied to Kunz' letter of the 25th . This letter is likewise inserted below primarily because it sets forth in part one of the main defenses of the Respondent to the 8 (a)(5) allegation in the complaint. 2 Quotes from the General Counsel 's "Memorandum in support of Motion to Dismiss Complaint, or in the alternative for Summary Judgment in favor of defendants " LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN. Mr. FRED KUNZ Local 58 American Federation of Grain Millers 912 Adams Street Toledo, Ohio Re: Lucas County Farm Co-op Association 467 JUNE 26, 1959. DEAR MR. KUNZ: Receipt is acknowledged of your request of June 25, 1959. This will advise that on June 24, 1959, we forwarded to the National Labor Relations Board in Washington on behalf of the employer, a motion to vacate their ruling and order of June 22, 1959. In view of the foregoing, we ate not disposed to commence negotiations on a contract until this matter has been fully determined [Emphasis supplied.] Very truly yours, BOGGS, BOGGS & BOGGS By ------------------- On July 3, 1959, Kunz wrote the Respondent again and requested a meeting with its representatives for the purposes of collective bargaining. The Respondent by Robert O. Foust, its office manager, replied by letter on July 6, 1959, and advised Kunz that Sattler, the general manager, was on vacation and that the Union's letter would be brought to his attention as soon as he returned to his office. On July 20, 1959, the Union filed its original charge herein. Shortly thereafter the Regional Director for the Eighth Region of the Board sent a copy of the charge to the Respondent on July 28, 1959; the Respondent by its counsel, Ralph Boggs, wrote the Regional Director for the Eighth Region a letter in which he set forth the Respondent's relations with the Union since it was certified as the collec- tive-bargaining representative of its employees in the appropriate unit and its position as regards future relations with the Union. The Trial Examiner considers this letter of the utmost importance in his ultimate determination of the issues herein. Moreover, it sets forth for the first time in considerable detail one of the Respondent's main defenses to the allegations in the complaint as regards violations of Section 8(a)(5) and (1) of the Act, which it advanced at the hearing herein, in its answer, its opening statement, and in its proposed findings of fact and conclusion of law to wit: that it was under no obligation to bargain with the Union until certain constitutional rights of the Respondent had been determined by the Federal courts. For this reason the Trial Examiner feels that this letter should likewise be inserted herein for the perusal of all concerned. It follows below Law Offices BOGGS, BOGGS & BOGGS 413 Michigan Street Toledo 2, Ohio Nolan Boggs July 28, 1959 CHerry 3-5117 Howard W. Boggs Ralph S. Boggs PHILIP Fusco Regional Director-Eighth Region National Labor Relations Board Ninth-Chester Building Cleveland 14, Ohio Re: Lucas County Farm Bureau Cooperative Association-No. 8-CA-1952 DEAR MR. Fusco: The above named employer has referred to us for reply your comunication and enclosure dated July 20, 1959. This will advise you that on Monday, July 27, 1959, at the direction and on behalf of the Lucas County Farm Bureau Cooperative Association, we filed a complaint in the United States District Court for the Northern District of Ohio, Western Division at Toledo, Ohio, against the National Labor Relations Board and Local No. 58, American Federation of Grain Millers, A.F. of L.-C.I.O., asserting that the constitutional rights of said employer had been violated in the proceedings in this matter, questioning the jurisdiction of the Board over this employer under the National Labor Relations Act and alleging violations of the Act itself by agents and' representatives of the National Labor Relations Board . The filing of this action was authorized at a meeting of the Board of Directors of the employer group held on Thursday evening, July 23, 1959. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Fred Kunz, President and Business Representative of Local No . 58, first requested 'a conference for bargaining purposes by a communication dated June 25, 1959 . By letter dated June 26, 1959, he was advised that a motion had been filed with the National Labor Relations Board in Washington, seek- ing vacation of their order of certification and was advised until this was disposed of that the employer would not commence negotiations on a contract. Following the notification from the National Labor Relations Board on June 29, 1959, that they would not consider the request for vacation and reconsidera- tion filed by the employer, Mr. Kunz again by letter dated July 3, 1959, requested, through Mr. Deloy Sattler, Manager of the employer group, a meeting with company representatives for the purpose of commencing negotia- tions on a contract. By letter dated July 6 , 1959, he was advised by Mr. Robert O. Foust, Office Manager, that Mr. Sattler was out of town on vacation and his letter would be brought to his attention as soon as he returned. Upon his return from vacation, Mr. Sattler endeavored to contact Mr. Kunz several times for the purpose of advising him that the Board of Directors of the employer group was meeting on July 23, 1959, and at that time a decision would be made as to whether or not to recognize the certification and proceed- ings under the Act or to seek judicial protection of the employer 's constitutional and legal rights. Mr. ^Sattler was not successful in contacting Mr. Kunz although he left his name and number and requested return telephone communications . Apparently during this interval the charge which you enclosed with your letter was filed with your Board. The Board of Directors discussed these charges with Mr. Sattler at their recent meeting and I am authorized to advise you that they deny each and every allegation asserted by Mr. Kunz against them and deny that even if they are properly covered by the National Labor Relations Act, which they deny, that they have violated any sections of said Act . [Emphasis supplied.] Very truly yours, LUCAS COUNTY FARM BUREAU COOPERATIVE ASSOCIATION By -------------------------- BOGGS, BOGGS & BOGGs RSB:cg cc: Mr. Deloy Sattler Mr. Fred Kunz On August 24, 1959, the Union again wrote the Respondent and requested a meet- ing with its representative for the purpose of negotiating a contract . The Respondent, by its counsel replied to the Union's letter on September 3, 1959. In this letter counsel for the Respondent stated that ". . . As I advised you by telephone prior to leaving on my vacation , the Company is not disposed to meet and negotiate with you on any labor contract until the action we filed in the Federal District Court in July questioning the jurisdiction and procedures before th 'e National Labor Rela- tions Board has been disposed of." [Emphasis supplied.] On September 2, 1959, the Union filed an amended charge against the Respondent. On the same date the Regional Director for the Eighth Region so advised the Re- spondent in this regard . Thereafter on September 15, 1959, counsel for the Respond- ent sent a letter to the Eighth Regional Office, Cleveland , Ohio, in which he acknowl- edged service of the amended charge, and in addition reiterated therein the Respond- ent's position as regards the Union's charges, in the following language: By way of answer to this most recent charge , we refer you to our communi- que addressed to Mr. Philip Fusco, dated July 20, 1959. Rather than repeat the information therein set forth , we merely refer you to this letter as a com- plete answer to the most recent charge of Local 58 The position of the Lucas County Farm Bureau is that they do not and are not refusing to bargain collectively, or are they in any sense in violation of the N.L.R B. They merely refuse to negotiate with this local until their con- stitutional rights have been passed upon by the courts. Very truly yours, BOGGS, BOGGS & BOGGS By -------------------- As indicated above the amendment to the complaint alleged that the Respondent had on or about November 1, 1959, changed the terms and conditions of employ- ment of Orville C. Miller and Ollie Gruben , employees in the appropriate unit, by requiring them to enter into a written agreement changing their wages, hours, and LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN. 469 terms of employment, and by entering into such agreements without consulting the Union, and that by such conduct violated Section 8 (a) (5) and (1) of the Act. The General Counsel in support of his case-in-chief in regard to the foregoing amendment to his original complaint offered the testimony of Gruben and Miller, of whom more anon. As indicated above the amendment to the complaint refers to a "written agree- ment." This document was offered in evidence by the General Counsel at the hearing, and was admitted by the Trial Examiner over the objections of counsel for the Respondent, on the ground that it was ". . . immaterial and irrelevant" to the issues herein. An examination of the agreement shows that while it was actually signed on October 22, 1959, by f. B. Sattler for the Respondent, and by the above- named employees on or about November 2, 1959,3 it had been in effect by agreement by the parties since July 1, 1959. As indicated supra in the Statement of the Case, the Respondent's position as regards the above was to the effect that the Respondent was under no duty to discuss its relations with Gruben and Miller, because they were not included in the appro- priate unit, of which more anon. The basic change in terms of employment of Miller and Gruben was not only in their wages but in the benefits that they had previously enjoyed. For example, both were on a salary before the change, thereafter they were paid strictly on a commission basis, which as the Trial Examiner interprets the record, decreased their "take-home" pay, at least at the time of the hearing herein. In addition they were no longer entitled to vacations with pay which they had enjoyed prior to their trans- fer on July 1, 1959. In support of its contention that it had never refused to meet with and/or bargain with the Union at time material herein, the Respondent offered the testimony of Deloy Sattler, its general manager, who has been referred to above. For the most part his testimony on direct examination was confined to the status of the two employees named in the amended complaint, Orville C. Miller and Ollie J. Gruben, at times material herein. He testified that Gruben was the manager of the Re- spondent's Maumee, Ohio, branch store from January 1 to August 1, 1959, and that prior to that was manager of the Respondent's Curtice, Ohio, store. He further testified that as manager of the Maumee store he had employees under his super- vision and the authority to make decisions ".. . as it effected the operations of that store." Gruben who had been called at a witness for the General Counsel in support of his case-in-chief as regards the allegations in the amendment to the complaint,4 testi- fied on cross-examination as regards his status at the Maumee store from January 1 to July 1, 1959. To the Trial Examiner at least his testimony in this regard is most confusing. At the onset thereof he testified that he was transferred from the Curtice branch where he had been branch manager to the Maumee store on January 1, 1959, and that he served in the same "capacity" there from January 1959 until he was transferred to the job of "tank truck salesman." His testimony as regards his duties in the Maumee store as indicated above is most confusing, as the following excerpts from his testimony on cross-examination indicates when considered in the light of his previous testimony which has been discussed immediately above which was to the effect that he was transferred from the Curtice store to be manager of the Maumee store. Q. I see. Prior to this time you were the manager of the Maumee Store? A. Well, I worked in the store, yes, as a salesman. I say I worked. I was a salesman in the store. Q. Well, what I am getting at is- EXAMINER SHAW: That is the Maumee? By Mr. BOGGS: Q. Were you the manager of the store or the salesman in the store, or what were you? A. I don't know if you classify me as a manager or a worker or what. I worked in the store. Q. What did you do at the store? A. I sold and took orders. Q. Anybody working under you? A. Well, there were two fellows there, two other fellows there. 8 See General Counsel's Exhibit No. 5 and the testimony of Gruben and Miller as regards the signing of the above agreement. * See infra. 577684-61-vol. 128-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you direct their activity, what they did, tell them what to do? A. Well, not exactly. Q. Well, what do you mean by that, either you did or you didn't? A. Well, somebody else told them, Bob Fawcett, he had something to do in the store, too. Q. Well, the head office is in the Maumee Store, isn't it? A. Yes, sir. Q. And Mr. Stattler's office is out there? A. Yes, sir. Q. And he is the manager of the whole county? A. That's right. Q. And Mr. Fawcett is his assistant? A. Well, I guess so. Q. Yes, and you were in charge of the store, you told the employees what to do out in the store, those two people that worked for you as it related to the operation of the Maumee store, isn't that right? A. Well, in cases, yes, but most of us knew what to do. Q. You had been manager of the Curtice Branch, hadn't you, for some three or four years? A. Yes, sir. Q. Then they transferred you over to run the Maumee store? A. Yes, sir. Q. Yes. Did you vote in this election? A. Yes, sir. Later in his testimony on direct examination Gruben testified that at the time of the election herein which was conducted, as indicated above, by mail ballot between April 27 and May 7, 1959, he was a "tank truck salesman" and that he voted in the election. At the hearing herein the General Counsel offered in evidence the list that was furnished by the Respondent, on its own letterhead stationery, to the Board, of the employees in the appropriate unit who were eligible to vote in the election. The document was admitted in evidence without objection by the Trial Examiner. An examination thereof reveals the following pertinent information, as regards the status of the employees in dispute, Ollie Gruben and Orville Miller. Maumee Branch ------------ --------- --------------- ------------ --------- --------------- Ollie Gruben-Clerk Petroleum Dept. Orville Miller-Truckdriver An examination of the R case record shows that there is no testimony as regards Ollie Gruben, moreover Sattler testified that the branch manager of the Maumee store at times material herein was Robert Foust. As to Orville Miller, Sattler testi- fied that he was a "truckdriver" in the petroleum department and that his immediate supervisor was one Trucell.5 As indicated above the Trial Examiner has felt at times that by the injection of the names of the above employees, Miller and Gruben, into the complaint as amended, that it was necessary to refer to the record in the R case in order to not only fully inform the Board of their status at times material herein, but to judiciously and fairly dispose of the issue as to them. For this reason he feels compelled to refer to the employer's brief in the R case particularly as regards these two employees. In its brief at page 3 the Respondent sets forth the names of all its employees. An examination thereof reveals that Ollie Gruben is classified as a "Utility" employee and Orville Miller as a "Petroleum Salesman" at the Maumee, Ohio, store. s As indicated above the Trial Examiner has referred to the R case record for the sole purpose of determining whether or not the evidence adduced at the hearing herein as regards Gruben and 'tiller might possibly be in the nature of "newly discovered evidence" that was not available to the Respondent at the time of the hearing in the representation case. After careful consideration of the record herein he is convinced and finds that it was not ; moreover he is further convinced and finds that the facts as regards the status of these two employees was within the peculiar and/or special knowledge of the Respond- ent at all times material herein. LUCAS COUNTY FARM BUREAU CO-OPERATIVE ASSN . 471 Concluding Findings as Regards the Status of Ollie Gruben and Orville Miller After careful consideration of the entire record herein the Trial Examiner is con- vinced and finds that at -all times material herein Gruben and Miller were employees of the Respondent at its Maumee, Ohio, store and were properly included by the Board in the appropriate unit in its decision and direction of election. His findings in this regard are predicated on the following factors: (1) Both employees were on the list of employees eligible to vote in the Board-ordered election furnished to the Board's agent in charge of said election by the Respondent on its own stationery; (2) the ballots of neither employee were challenged by any of the interested parties at the time the ballots were opened and counted; (3) Gruben's name was not men- tioned at the hearing in the R case; (4) Sattler testified at the R hearing that Robert Foust was the manager of the Maumee, Ohio, branch store at times material herein; (5) Sattler further testified at the R hearing that Miller was a "truckdriver" and he was so listed on the list of employees furnished the Board before the election; and finally (6) the Respondent at no time either in its objections to the election or in its briefs in support of its position in this regard even mention any irregularity in the conduct of the election as regards either their particiupation in the election or as employees included in the appropriate unit. Concluding and Overall Findings In the circumstances found and described above the Trial Examiner concludes and finds that the Respondent by the conduct alleged in the complaint violated Section 8 (a) (5) and (1) of the Act. To begin with the Trial Examiner rejects the contention of the Respondent that it never at any time refused to meet with representatives of the Union for the reason that Union never at any time set forth a time and place for a meeting of the parties. To the Trial examiner this contention of the Respondent is without merit. An examination of the letters from Fred Kunz, business representative of the Union, clearly show that he left the time and place up to the Respondent. All that he requested was a date that was convenient to the Respondent. As the Trial Examiner sees it in the light of the record considered as a whole, it would have been useless for the Union to have set forth a time and place for a meeting of the parties. In the first place to have done so would have been an arbitrary and capricious gesture on the part of the Union, and certainly not conducive to friendly bargaining relations between the parties. Secondly it would have been a futile and "useless" gesture when considered in the light of the defense of the Respondent that it would not meet with the certified bargaining agent until certain of its constitutional rights had been disposed of in the Federal courts. In the circumstances the Trial Examiner is con- vinced and finds that the Union's requests for meetings with the Respondent's repre- sentatives for the purpose of a negotiating contract were couched in clear and un- mistakable language, and that the lack of the phraseology relied upon by the Re- spondent as a defense is in the final analysis meaningless. It is axiomatic that equity will not require the doing of a vain and useless thing. So is it here insofar as the Respondent's contention that the Union should have set the time and place of meet- ings between the parties in its requests for bargaining conferences. The Trial Examiner is also convinced and finds that the defenses advanced by the Respondent in justification of its refusal to meet and bargain with the Union to wit, that it was under no obligation or duty to do so while its objections to the election and thereafter appeals to the Board and the Federal courts for relief had been determined, are without 6 merit, for reasons set forth below. In the considered opinion of the Trial Examiner the defense of the Respondent which as indicated is predicated on its various appeals to the Board for reconsidera- tion of its findings in the R case and on the objections to the election, and the action pending in the Federal court in Toledo, Ohio, are completely without merit in view of numerous decisions of the Board and the courts. They have consistently held that,the duty to bargain cannot be postponed by the pendency of petitions and appeals for reconsideration 7 As the Trial Examiner sees it, if the Respondent, or any party, were to be per- mitted to refuse to bargain, because it was pursuing certain legal processes, the certification year would become meaningless because of its dissipation during the See infra for a full discussion of these issues 7See Pasco Packing Company, 115 NLRB 437, 447; Borden Company. 108 NLRB 807, 812; Trinity Steel Company, Inc, 103 NLRB 1470; International Idlewild Catering Corp, 124 NLRB 513 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of such legal proceedings. Here the legal proceedings began on July 27, 1959, and were disposed of by the Federal district court in Toledo, Ohio, on De- cember 15, 1959, a period of approximately 5 months during which the Respondent was under a duty to bargain with the Union. This it failed and refused to do for reasons discussed and set forth above. The Trial Examiner has found above that employees Miller and Gruben, named in the amendment to the complaint, were properly included in the appropriate unit by the Board in its decision and direction of election in the R case, and at times material herein employees in the unit. Consequently the Trial Examiner concludes and finds that at all times material herein the Union herein was their certified bar- gaining agent. He further finds that as such the Respondent was under a duty and legal obligation to bargain with the Union as regards their transfer to another job classification outside the unit found appropriate by the Board in the R case.8 In the circumstances the Trial Examiner finds that the Respondent by failing to -discuss and negotiate with the Union as the certified bargaining representative of -its employees in the appropriate unit the change in the term and conditions of Orville C. Miller and Ollie J. Gruben on November 1, 1959, as regards wages, ,ours, and other conditions of employment and by requiring them to enter into written agreement changing their status as employees, was violative of Section 8(a)(5) and (1) of the Act. The Appropriate Unit The Board found in the R case, the complaint alleges, and the Trial Examiner finds that the following employees of the Respondent constitute a unit for the purposes of collective bargaining within the meaning the meaning of Section 9(b) of the Act: All truckdrivers, yard men, warehousemen, and mill and grain department employees at the Employer's Maumee, Burkee, and Curtice, Ohio, plants, including plant clerical employees, but excluding all office clerical employees, full-time outside salesmen, foremen, and other supervisors as defined in the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent refused to bargain with the Union, the duly certified representative of its employees in an appropriate unit, it will be recom- mended that it cease and desist from such refusal and, on request, bargain with the Union as said exclusive representative with respect to rates of pay, wages, hours of work, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The Respondent having changed the terms and conditions of employment of Orville C. Miller and Ollie Gruben, employees in the appropriate unit, by requiring said employees to enter into written agreements changing their wages, hours. and terms and conditions of employment, without consulting the Union, it will be recommended that the Respondent cease and desist from this and any other like or related conduct. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act 2. All truckdrivers, yard men, warehousemen, and mill and grain department employees at the Employer's Maumee, Burkee, and Curtice, Ohio, plants, including plant clerical employees, full-time outside salesmen, foremen, and other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 8 See Brown Truck and Trailer Manufacturing Company, Inc., at al., 106 NLRB 999, and Shamrock Dairy Inc, et al, 124 NLRB 494. EDWARD E. GURIAN & CO., INC . 473 3. The Union was on June 22, 1959 , and at all times since has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on and after June 25, and July 3, 1959, to bargain collectively with the Union as exclusive representative in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By changing terms and conditions of employment of Orville C. Miller and Ollie Gruben , on or about July 1, 1959 , and by requiring and entering into a written agreement with them on or about November 1, 1959, changing their wages, hours, and terms and conditions of employment , and by entering into such agreements with said employees without consulting the Union, the Respondent engaged in conduct violative of Section 8(a) (5) of the Act. 6. By the said refusals to bargain or consult with the Union , the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Edward E . Gurian & Co., Inc. and Local 1031, International Brotherhood of Electrical Workers, AFL-CIO. Cases Nos. 13-CA-3371 and 13-CA-3378. August 5, 1960 DECISION AND ORDER On March 25, 1960, Trial Examiner Owsley Vose issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, exceptions to the Inter- mediate Report and supporting briefs were filed by the Respondent and the Charging Party.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 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 2 The Board has considered the In- 'The Charging Party, while agreeing generally with the Trial Examiner 's conclusions and recommendations , excepted to certain statements in the Intermediate Report, claim- ing them to be "gratuitous and irrelevant ." We find no merit in these exceptions. The statements objected to are generally descriptive of the circumstances surrounding the unfair labor practices found herein, and , in any event, their inclusion in the Intermediate Report in no way prejudices the Charging Party with respect to the issues in the case. Nor do we find merit in its exception that Respondent 's filing of a petition with the Board constituted an additional violation of Section 8(a)(5). We deny Respondent's request for oral argument, as the record and briefs adequately present the issues and the positions of the parties. 128 NLRB No. 63.