Gulf Atlantic Warehouse Co.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to Section 3(b) of the Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sections 9 (c) (1) and 2 (6) and (7) of the Act' 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: 8 All production, maintenance, and processing employees at the Employer's operations near Buhl, Idaho, including truckdrivers, but excluding office clerical employees, guards, working foremen, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 3 The Employer contends that the Board is without jurisdiction on the ground that the employees involved herein are agricultural employees to whom the Act does not apply . The Employer is engaged in the raising , butchering , packing, freezing, and dis- tribution of rainbow trout at its operations near Buhl , Idaho. In determining whether employees are "agricultural" and therefore outside the coverage of Section 2(3) of the Act, the Board is governed by section 3(f) of the Fair Labor Standards Act. See Swift and Company, 104 NLRB 922, 923. We have been advised by the Department of Labor, whose interpretation of section 3(f) of the Fair Labor Standards Act it is our policy to follow whenever possible, that employees engaged in "fish farming," of the type involved herein, are not employed in agriculture within the meaning of section 3(f) of the pertinent act. Upon this basis we find that the employees employed' in the Employer's operations described above are not agricultural but are employees as defined in Section 2(3) of the Act. Accordingly, the Employer's contention is rejected. 8 There was no disagreement as to the unit except that the Employer , contrary to the Petitioner, would exclude working foremen . The foremen direct employees in their re- spective departments and have authority , which they exercise , to hire and discharge employees under them. We find the working foremen to be supervisors as defined in the Act and exclude them from the unit. Gulf Atlantic Warehouse Co. and Local 591, United Packing- house Workers of America, AFL-CIO. Case No. 15-CA-1501. September 15, 1960 DECISION AND ORDER On March 14, 1960, Trial Examiner John H. Dorsey 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 Inter- 129 NLRB No. 9. GULF ATLANTIC WAREHOUSE CO. 43 mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified herein.' The Trial Examiner found, and we agree, that the Respondent violated Section 8(a) (5) and (1) of the Act by declining to furnish to the Union the requested seniority list of its employees.' As more fully set forth in the Intermediate Report, section 6, para- graph 2, of the contract entered into by the Respondent and the Union provides that any determinations with respect to promotions, demo- tions, layoffs, and rehirings will be based on "Ability" and "Versa- tility" and that if both of these factors are equal, "Seniority" will prevail. The clear intendment of these provisions is that seniority is an integral part of the promotion, demotion, layoff, and rehiring system, and, insofar as relevant thereto, the employees are entitled to have the seniority rights already secured by the contract fully protected by their collective bargaining agent.3 Accordingly, we find, in agreement with the Trial Examiner, that pursuant to and in order to enable the Union properly to administer the contract the Union was entitled to receive relevant seniority information, and that the Respondent by refusing to furnish the requested information vio- lated Section 8(a) (1) and (5) of the Act. As did the Trial Examiner, we find no merit in the Respondent's contention that the Union had waived any rights it might have to the seniority information 4 Certainly, the contract does not evidence 'In the absence of any exceptions to the Trial Examiner's failure to recommend specifically a remedy for the violation of Section 8(a) (1) of the Act, we adopt, pro forma, the Trial Examiner's recommendation that the remedy be limited solely to the 8(a) (5) violation. 2 The Trial Examiner failed to find that the Union was the representative of the employees in a unit appropriate for bargaining. The complaint alleged and the Respond- ent's answer admitted, and we accordingly find, that the Union was, at all times material herein, the exclusive bargaining representative of the Respondent's employees in an appropriate unit, as more fully described in our Order herein "See, e.g., Oregon Coast Operators Association et al., 113 NLRB 1338, 1345; Cali- fornia Portland Cement Company, 101 NLRB 1436, 1438. 4 In finding that the Union did not waive its right to receive a seniority list, the Trial Examiner relied upon the fact that the contract itself contained no waiver language. Insofar as this finding implies that a contract must contain such language before a waiver can be found, we do not adopt it. Although under certain circumstances an express contractual provision will evidence the parties' intention to put at rest a particu- 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such an intent on the part of the Union. Nor do we find evidence of such an intent from the precontract negotiations. At the first of some 32 bargaining sessions, the Union submitted to the Respondent a proposed contract which contained, inter alia, a provision which would make seniority the sole factor to be considered in all matters affecting promotions, demotions, layoffs, and rehirings. This seniority proposal of the Union also provided that "Seniority lists of all em- ployees shall be posted and made current every ninety (90) days. Sufficient copies shall be given to Union Representative." The Re- spondent, on the other hand, proposed that the provisions of the preceding contracts be carried over, thereby continuing to recognize "Ability" and "Versatility" as the governing factors, with "Seniority" prevailing only in the event the former factors were equal. Although seniority was a principal issue in the negotiations, not once, during the 32 sessions, was the seniority list mentioned, either as a possible source of future disagreement or as an obstacle in the path of con- tinued negotiations. On October 25, 1958, the parties executed their present contract which, while incorporating the seniority provisions proposed by the Respondent, is silent with respect to the establish- ment of a seniority list. The Union's acceptance of the Respondent's proposal which ex- plicitly provides for seniority cannot, under all the circumstances, be said to amount to a "clear and unequivocal" 5 waiver by the Union of its right to receive seniority information for the administration of that seniority provision. Nor can it be said that a finding of waiver is required because the Union's initial proposal which, inter alia, would have provided for a list, was rejected and both parties agreed upon a contract which lacks a provision expressly directing the Respondent to furnish such a list. "At best the finding would have to be that there was an implied waiver in such circumstances and such finding does not meet the Board's established test...." 8 Accordingly, particu- larly, as the furnishing of a seniority list, per se, was not a bone of contention in the negotiations and there is no provision in the contract that no such list need be furnished, we find that the Union did not waive its right to receive the requested seniority list either in the bargaining negotiations preceding execution of the contract or in the contract itself. lar matter in issue, it is equally clear that a finding of waiver may be made solely on the basis of oral, precontract negotiations. The Berkline Corporation, 123 NLRB 685. Our finding herein is based on the fact that the record does not establish that the Union waived its right to receive the requested information either during precontract negotia- tions or by any express or implied contractual provision 5 The Item Company, 108 NLRB 1634, 1640, enfd. 220 F 2d 956 (C.A. 5), cert. denied 350 U.S 836, rehearing denied 350 U.S. 905; California Portland Cement Company, footnote 3, supra; Tidewater A8sociated Oil Company, 85 NLRB 1096, 1098 0 Beacon Piece Dyeing and Finishing Co , Inc., 121 NLRB 953, 957. GULF ATLANTIC WAREHOUSE CO. 45 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, Gulf Atlantic Warehouse Co., New Orleans, Louisiana, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from refusing to bargain collectively with Local 591, United Packinghouse Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the appro- priate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, by refusing to supply the aforesaid Union with a seniority list of its employees in the collective- bargaining unit represented by said Union. The following unit of employees is appropriate for collective bargaining: All production and maintenance employees at the Respondent's Alabo warehouse, New Orleans, Louisiana, and Shrewsbury ware- house, Illinois-Central Railroad at LaBarre Road, in Jefferson Parish, near New Orleans, Louisiana, excluding office and clerical employees, messenger-truckdrivers, temporary maintenance and/or construction employees, mechanics, firemen, engineers, guards, watch- men, professional employees, and supervisors as defined in the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Without further request from said Union supply it, within 15 days from the date of this Order, with a seniority list of all employees within the unit for which Respondent has recognized said Union as the collective-bargaining representative and, upon further requests from said Union during the term of the existing collective-bargaining agreement, keep said seniority lists up to date, in order to enable said Union to discharge its functions as the statutory representative of the Respondent's employees. (b) Post at its warehouses in Alabo and Shrewsbury, in and near, New Orleans, Louisiana, respectively, copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent, be posted by the Respondent immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. v In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS, dissenting : I cannot agree with the finding of my colleagues, that the Respond- ent violated Section 8(a) (5) of the Act by refusing to accede to the Union's request for a seniority list. The Respondent and the Union or the latter's predecessor, have been in a contractual relationship with one another since 1939. On June 10, 1958, the parties commenced negotiations for a successor contract to supplant their then current agreement which was due to expire on July 26, 1958. The previous contracts all provided, in section 6, paragraph 2, that : In promotions, demotions, layoffs, and rehirings, the following factors will be taken into consideration : (a) Ability (b) Versatility (c) Seniority (defined as length of service) Factors (a) and (b) being equal, factor (c) shall prevail... . At the first bargaining session, the Union introduced a proposal which, if adopted, would have made promotions, demotions, layoffs and reemployment dependent exclusively upon employee seniority. In addition, the Union proposed that the new contract should provide that "Seniority lists of all employees shall be posted and made current every ninety (90) days. Sufficient copies shall be given to Union Representatives." These proposals were intended to change the aforementioned provisions of the previous contracts, as well as a long- established practice pursuant thereto, wherein decisions as to promo- tions, demotions, layoffs, and rehirings were left to the Respondent's discretion.' Thirty-one bargaining sessions ensued. The Respondent firmly, and consistently, rejected, in toto, the Union's proposed seniority pro- visions, and insisted that any subsequent agreement relating to pro- motions, demotions, layoffs, and rehirings should be governed by the terms of the preceding contract. On October 28, 1958, the parties executed their present contract which, instead of including the provisions sought by the Union, 8 All of the contracts, past as well as present, contain provisions which grant to the Union the right to invoke grievance machinery in the event it disagrees with a decision arrived at by the Respondent pursuant to section 6, paragraph 2, of the contract. How- ever, by the contract's express terms, the Respondent has exclusive authority, in the first instance, to make any decision regarding promotion, demotion, layoffs, and rehiring, and any subsequent attack upon such decision would necessarily involve consideration of such nebulous terms as "ability " and "versatility," the meanings of which depend upon the Respondent's personal evaluation . Consequently, and in my opinion, section 6, para- graph 2, of the past and present contracts is a "management prerogative " clause. GULF ATLANTIC WAREHOUSE CO. 47 carried forward the identical, above-quoted, "management preroga- tive" provisions of the previous contracts. Nevertheless, some 3 months after the contract was executed, on December 31, 1958, the Union wrote to the Respondent and requested, inter alia, a seniority list. This request was repeated on January 14, 1959, and again on March 17, 1959. To these requests, the Respondent replied that it "does not maintain a seniority list since none is required under the terms of the agreement." In my opinion, the controlling fact which clearly emerges from the foregoing, is that the Union, having proposed a scheme which would have made seniority the decisive factor with respect to employee status, consciously yielded in the face of the Respondent's objections, and agreed to the continuation of the existing contract and practice. Not only did the Union yield generally, but it specifically abandoned its request that seniority lists be furnished its representatives. Hav- ing had the opportunity to bargain for the best possible contract, the Union should not now be heard to complain because the resulting contract, which it signed, failed to measure up to its expectations. What the Board said in the Hearst 9 case is controlling here : ... it would be an abuse of the Board's mandate to throw the weight of Government sanction behind the Union's attempt, some 3 months later, to disturb the terms of the bargain the parties themselves achieved. . . . To hold otherwise is to encourage one party to a bargaining agreement to resort to the Board's processes to upset the terms of a contract which the other party . . . had every good reason to believe had been stabilized for a definite period.10 In the circumstances of this case, I would dismiss the complaint in its entirety. BInternatsonal News Service Division of The Hearst Corporation, 113 NLRB 1067. 'o Ibid, at 1071. APPENDIX A 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, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with Local 591, United Packinghouse Workers of America, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit concerning rates of pay, wages, hours of em- ployment, and other terms and conditions of employment, by refusing to supply said Union with a seniority list. The follow- ing unit of employees is appropriate for collective bargaining : 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees at our Alabo and Shrewsbury warehouses in and near, New Orleans, Louisiana, respectively, excluding office and clerical employees, messenger- truckdrivers, temporary maintenance and/or construction em- ployees, mechanics, firemen, engineers, guards, watchmen, pro- fessional employees, and supervisors as defined by the Act. WE WILL supply Local 591, United Packinghouse Workers of America, AFL-CIO, with a seniority list of all employees in the appropriate unit for which we have recognized said Union as the collective-bargaining agent so that it may exercise its functions as the statutory representative of our employees. WE WILL, upon further requests from said Union during the term of the existing collective bargaining agreement, keep the aforementioned seniority list up to date. GULF ATLANTIC WAREHOUSE CO., 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 Upon charges filed on February 5, 1959, by Local 591, United Packinghouse Workers of America, AFL-CIO, herein called the Union, against Gulf Atlantic Warehouse Co., herein called Respondent, the General Counsel for the National Labor Relations Board, herein called the General Counsel, caused a complaint to issue on October 12, 1959, alleging that Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. The gravamen of the complaint is an allegation that Respondent, after requests from the Union, collective-bargaining agent and party to a collective-bargaining agreement with Respondent, refused and continues to refuse to supply the Union with a seniority list of employees in the collective -bargaining unit. In its answer, duly filed, Respondent denied the allegation. It did not plead any affirmative defense. Pursuant to notice a hearing was was held before me at New Orleans, Louisiana, on January 26, 1960. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence , to present oral argu- ment, and to file briefs. Parties waived oral argument at the hearing. They sub- sequently filed briefs. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, is, and at all times material herein has been, engaged in handling, storing, and compressing into bales, raw cotton at com- presses and/or warehouses located in the States of Alabama , Georgia, North Carolina, South Carolina, Tennessee , Texas, and Louisiana. During all times material herein, Respondent was engaged in handling , storing, and compressing into bales, raw cotton at its Alabo warehouse in New Orleans, Louisiana , and its Shrews- GULF ATLANTIC WAREHOUSE CO. 49 bury warehouse, in Jefferson Parish near New Orleans, Louisiana. The above- named warehouses and/or compresses are the only ones directly involved in this proceeding. During the preceding 12 months, which period is representative of all times material herein, Respondent at its Shrewsbury and Alabo warehouses used or handled materials, supplies, and/or merchandise valued in excess of $200,000 of which approximately 80 percent was received from points outside of the State of Louisiana. During the same period, Respondent, at the above-named warehouses, received in excess of $200,000 for services performed on goods, of which approxi- mately 100 percent was shipped to points outside the State of Louisiana. The above services were performed for customers located within the State of Louisiana, which customers during the same period shipped goods and/or performed services valued in excess of $50,000 outside the State of Louisiana and/or purchased goods valued in excess of $50,000 from outside the State of Louisiana. Respondent concedes it is engaged in interstate commerce within the meaning of the Act and I so find. II. THE LABOR ORGANIZATION INVOLVED Respondent concedes that the Union is a labor organization within the meaning of Section 2(5) of the Act and I so find. III. THE MATERIAL FACTS The material facts are not disputed. Since 1939 Respondent has been in contractual relationship with the Union and its predecessor, Local 207, International Longshoremen's and Warehousemen's Union (ILWU). The Union became successor to an existing contract between Respondent and ILWU in early 1958. This contract was due to expire on July 26, 1958. Negotiations between the Union and Respondent for a successor contract were commenced on June 10, 1958.1 The contract negotiations were not concluded until October 25, 1958, at which time the parties, after 32 bargaining sessions, reached agreement and executed a new contract for a term extending to July 25, 1961, subject to certain reopening provisions not here material. We are concerned with the bargaining only insofar as it related to the subject of seniority. On June 10, 1958, the Union submitted a proposed contract which contained the following provisions: SECTION S-SENIORITY Paragraph 1. Seniority is defined as the length of continuous service with the Company, and shall operate on a plant-wide basis. All present employees and new employees who come within the scope of this Agreement shall acquire seniority rating from the date of employment with the Employer after having completed at least thirty (30) days of service in the aggregate during the term of this Agreement. B. In all cases of promotion, layoffs, or reduction of forces and re-employ- ment seniority shall govern. When there is a decrease in working forces those employees with the greatest amount of seniority shall be the last to be laid off. When there is an increase in work after the layoff former employees shall be reemployed in accordance with their seniority rating. C. Seniority lists of all employees shall be posted and made current every ninety (90) days. Sufficient copies shall be given to Union Representatives. D. Seniority shall be lost for the following reasons. (a) If the EMPLOYEE voluntarily resigns. (b) If the EMPLOYEE is discharged for just cause. (c) If the employee fails to report for work within five (5) work days and does not give good and sufficient reason for not reporting. The Company shall notify the Union monthly of all Employees discharged, reassigned, and hired. Throughout the negotiations Respondent rejected this proposal, adamantly in- sisting that any new agreement with reference to seniority should be the same as 1 The collective-bargaining unit covers all production employees with specified excep- tions, employed by Respondent at its Alabo warehouse in New Orleans, Louisiana, and at its Shrewsbury warehouse located In Jefferson Parish near New Orleans. 586439-G1-vol. 129-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the seniority provision in the contract immediately preceding. The provision which Respondent insisted upon reads: Section 6. Reassignments, Layoffs and Rehirings Paragraph 2. In promotions, demotions, layoffs, and rehirings, the follow- ing factors will be taken into consideration: (a) Ability (b) Versatility (c) Seniority (defined as length of service) Factors (a) and (b) being equal, factor (c) shall prevail. If the Union disagrees with the EMPLOYER'S decision under this paragraph, it shall have the right to handle the matter as a grievance pursuant to Paragraph 2(a) and 2(b) of Section 5... 2 In the bargaining Respondent prevailed. It appears that Respondent added to its proposal for a wage increase in consideration of the Union dropping its seniority and insurance demands. Consequently, the existing contract contains the same seniority provision as was in the preceding contract .3 After execution of the contract the Union by letters addressed to Respondent under dates of December 31, 1958, January 14, and March 17, 1959, requested that Respondent furnish it with a seniority list of employees in the bargaining unit. Respondent replied to each letter refusing to supply a seniority list. Respondent's position is stated in its reply, dated January 6, 1959, to the Union's request dated December 31, 1958: ". . . The Company finds nothing in the existing agreement requiring the Company to furnish a seniority Iist.. . The Company does not maintain a seniority list since none is required under the terms of the Agreement. Therefore, none is available." It maintained this position at the hearing.4 The president and business agent of the Union testified that he could not properly administer the seniority provision of the contract because "I needed a seniority list because whenever there comes a question of seniority I would know who have the seniority. They come in to me and tell me they are laid off and kept Paul Jones on and I am told Paul Jones didn't have seniority and I don't know who they laid off." IV. CONTENTIONS OF THE PARTIES The respective contentions advanced by the parties during the hearing and in their briefs are: 1. The General Counsel contends that in the absence of a seniority list the Union cannot properly administer the existing contract. Therefore, Respondent's failure and refusal to supply such a list violates Section 8(a)(1) and (5) of the Act. s Section 5 reads as follows : SECTION 5-GRIEVANCE PROCEDURE Paragraph 1. It is agreed that any individual EMPLOYEE and/or the grievance committeeman shall have the right at any time to present grievances or complaints to the EMPLOYER. It is further agreed that the EMPLOYEE and/or the griev- ance committeeman shall first make an effort to settle such grievances or complaints with his foreman. If the grievance or complaints presented to the foreman are not satisfactorily adjusted, they. may be handled under the provisions of Paragraphs 2 and 3 below : Paragraph f. Disputes involving application and interpretation of this Agree- ment or grievances of an EMPLOYEE or group of EMPLOYEES shall be handled in the following manner : (a) All such disputes or grievances shall first be presented orally or in writing by the EMPLOYEE or the grievance committeeman to the General Plant Manager. If presented and the parties fail to reach a satisfactory adjustment and settlement within three (3) working days (excluding Sundays and holidays), then (b) Such disputes or grievances shall be presented in writing by the EMPLOYEE and/or the grievance committeeman and/or an officer of Local 591 and/or an Inter- national Representative to a principal executive of the EMPLOYER. If the parties cannot reach a satisfactory settlement within ten (10) working days (excluding Sundays and holidays) after filing written notice, then either party may submit this matter to arbitration under the provision of Paragraph 2(c) of this Section a Supra. 4 Respondent's counsel In his opening statement stated It was impossible for It to pre- pare a seniority list. Respondent's witnesses, however, testified that it had records from which such a list can be compiled. GULF ATLANTIC WAREHOUSE CO. 51 2. Respondent contends that since the Union, during the course of the bargaining negotiations, abandoned its seniority proposal which provided for a seniority list and accepted Respondent's proposal which does not mention such a list, this action constituted a waiver and estops the Union from demanding a seniority list during the term of the contract. V. CONCLUDING FINDINGS Research has failed to reveal any reported case with facts identical to those in the instant case. But, the principle of law involved has been firmly established. Collective bargaining is a continuing process. It involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract. The Union not only has the duty to negotiate collective-bargaining agree- ments but also the statutory obligation to police and administer the existing agree- ments. The employer has the statutory duty to furnish the Union with relevant and necessary information in its possession which the Union needs to perform this function.5 That the Union, in the absence of a seniority list, could not and cannot protect the employees' rights secured by section 6, paragraph 2 6 of the contract here involved is clear from the record, and I so find. There is no language in the contract which, under the circumstances, can be con- sidered a waiver of the Union's right to receive the requested seniority list.? I find that Respondent's failure and refusal and its continuing failure and refusal to supply the Union with a seniority list of its employees, for which the Union i5 the collective-bargaining agent, is a violation of Section 8(a) (1) and (5) of the Act: VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection 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 tend to lead to labor disputes obstructing commerce and the free flow of commerce. VII. THE REMEDY While a violation of Section 8(a) (5) of the Act is ipso facto a violation of Section 8(a)(1), in view of Respondent's long collective-bargaining relationship with the Union and its predecessor and in the absence of probative evidence that Respondent has interfered with, restrained, or coerced employees in the exercise of rights guar- anteed in Section 7 of the Act, other than its failure to supply the seniority list, my recommendations as to relief will be confined to remedying the specific violation of the Act. Upon the basis of the above findings of facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent by its failure and refusal and its continuing failure and refusal to supply the Union with a seniority list of employees in the collective-bargaining unit has engaged and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. [Recommendations omitted from publication.] 6J. I. Case Company (Rock Island, Illinois ), 118 NLRB 520 , 253 F. 2d 149. See Oregon Coast Operators Association ; et al, 113 NLRB 1338, 1345; Leland-Gtfford Com- pany, 95 NLRB 1306; California Portland Cement Company, 101 NLRB 1436, 1138, 1455. 6 Supra 7 Cf. International News Service Division of The Hearst Corporation, 113 NLRB 1067, 1070, where the Board held that there must be a clear and unmistakable showing that a waiver occurred ; and Beacon Piece Dyeing and Finishing Co., Inc, 121 NLRB 953.