North Electric Co.

NORTH ELECTRIC COMPANY 675 duties theretofore performed by him. These unfair labor practices indicate a basic opposition to the purposes of the Act, and therefore danger exists that the Respondent may in the future commit other unrelated unfair labor practices . Accordingly, it will be recommended that the Respondent cease and desist not only from committing the unfair labor practices found , but also from in any other manner violating the rights guaranteed its employees in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent rescind its memo to Gordon Stone dated October 30, 1959, insofar as it relieves Stone of maintenance duties theretofore performed by him . It will further be recommended that the Re- spondent offer to Stone immediate and full reinstatement to his former or substan- tially equivalent maintenance duties, as they existed prior to October 30, 1959, and make him whole for any loss of pay he may have suffered by reason of the discrimina- tion against him by the payment to him of a sum of money equal to that which he normally would have earned in the performance of maintenance duties from October 30, 1959, to the date on which the Respondent restores him to the maintenance duties performed by him prior to October 30, 1959. It will further be recommended that the Respondent preserve and make available to the Board or its agents all records needed to determine the amount of backpay due hereunder, and post the usual notices . Finally it will be recommended that the com- plaint be dismissed, insofar as it alleges that the Respondent illegally interrogated its employees, discriminated against Gordon Stone on October 23, 1959, or discrimi- nated against George Labbe on November 30, 1959. Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. National Association of Broadcast Employees and Technicians (AFL-CIO) is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 2. By relieving Gordon Stone on October 30, 1959 , of certain maintenance duties theretofore performed by him thus discriminating in regard to his hire and tenure of employment, thereby discouraging membership in the above-named labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the above-described conduct, and by threatening its employees with discharge or other reprisals if they join or assist the above-named labor organization or select it as their bargaining representative , the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices , occurring in connection with the Re- spondent's operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof , and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to prove that the Respondent illegally interro- gated its employees , discriminated against Gordon Stone on October 23, 1959, or dis- criminated against George Labbe on November 30, 1959. [Recommendations omitted from publication.] North Electric Company and United Steelworkers of America, AFL-CIO. Case No. 8-CA-1975. November 16, 1960 DECISION AND ORDER On April 27, 1960, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices but recommending that the complaint be dismissed, as 129 NLRB No. 7R. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings and con- clusions, with the following modifications and additions : We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) of the Act by entering into a collective-bargaining agreement with the incumbent Independent union at a time when a conflicting claim by an outside union had raised a real question con- cerning representation. We further agree with the Trial Examiner's conclusion that a remedy in the form of an order setting aside the unlawful agreement and invalidating the certification of the Inde- pendent would be improper in the circumstances of this case, although we do not rely on the reasons advanced by the Trial Examiner to support that conclusion. However, we disagree both with the Trial Examiner's conclusion that any remedy less than one setting aside the contract and certification would fail to effectuate the policies of the Act, and also with his recommendation that the complaint therefore should be dismissed. By negotiating and executing a contract with the Independent during a time when a representation petition that raised a real ques- tion concerning representation was pending before the Board, the Respondent clearly committed a violation of the Act under the rule enunciated in the Shea Chemical Corporation case.1 There is no merit to the Respondent's contention that it was required to bargain with the incumbent Independent despite the pending petition because of the Independent's prior Board certification and the Respondent's belief that the Independent still represented a majority of the em- ployees. Since an employer who bargains with an incumbent during the pendency of a timely petition runs the risk of an unfair labor practice finding if the Board later determines that the petition raised a real question concerning representation, the Board has held that an employer is privileged to refrain from collective bargaining during this time? Even though the Respondent violated Section 8 (a) (1) of the Act, a remedy for this violation that resulted in setting aside the contract and invalidating the certification of the Independent would permit 1121 NLRB 1027 2 National Carbon Division, Union Carbide and Carbon Corporation , et at., 100 NLRB 680, 698. NORTH ELECTRIC COMPANY 677 the Charging Union to accomplish indirectly through the filing of an unfair labor practice charge what it could not accomplish directly by filing objections to the election. In this case, the negotiation and execution of the contract between the Respondent and the Independent occurred prior to the date that the Board issued its decision and direction of election. Although objections to the election were filed, they were later withdrawn, and properly so. For under well-estab- lished principles, the Board will not consider election objections based upon interference which occurs prior to the issuance of the decision and direction of election.' If the Board were now to set aside the Independent's certification and order a new election, it would be per- mitting the Charging Union to accomplish indirectly through the filing of a Section 8 (a) (1) charge what it could not have accomplished directly by pressing objections to the election. Furthermore, if the Charging Union in this case had filed a charge alleging a Section 8 (a) (1) violation prior to the election, the charge could have been waived and the election held. In the event that the Charging Union lost the election, and if, in the later unfair labor practice proceeding, a violation of Section 8(a) (1) was found to have occurred in fact, the Board would issue only a cease and desist order and would not set aside the certification of the victorious union. Therefore, the issuance of the usual Section 8 (a) (1) order in this case would put the Charging Union in the same position that it would be in if it had filed the charge prior to the election. Although we agree with the Trial Examiner that the contract should not be set aside and the certification invalidated,4 we do not agree with his recommendation that the complaint be dismissed. We find that such a dismissal will not effectuate the policies of the Act. It is well settled that orders dealing with unfair labor practices have a pre- ventive as well as a remedial purpose and effect.' Accordingly, we shall order the Respondent to cease and desist from infringing upon the rights guaranteed by Section 7 and to post an appropriate notice. ORDER Upon the entire record in the 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, North Electric Company, its officers, agents, successors, and assigns, shall : 3F W. Woolworth Company, 109 NLRB 1446, 1448; The Great Atlantic and Pacific Tea Company, 101 NLRB 1118. In agreeing with the Trial Examiner's conclusion on this point, we do not pass on the applicability of the doctrine of Louis Aiello, at at, d/b/a Aiello Dairy Farms, 110 NLRB 1365, to a case such as this one 5 American Sheet Metal Works, 106 NLRB 154. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, by entering into collective-bargaining negotiations and a contractual agreement with Independent Workers Union of North Electric Company of Galion, Ohio, or any other labor organization, at a time when the claim of an- other labor organization has raised a real question concerning representation. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in the Respondent's plant in Galion, Ohio, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, upon being duly signed by the Respondent's representative, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Noitfy the Regional Director for the Eighth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS RODGERS and KIMBALL took no part in the consideration of this Decision and Order. 0In 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 NOT interfere with, restrain, or coerce our employees by entering into collective-bargaining negotiations and a con- tractual agreement with Independent Workers Union of North Electric Company of Galion, Ohio, or any other labor organi- zation, at a time when the claim of another labor organization has raised a real question concerning representation. NORTH ELECTRIC COMPANY 679 WE WILL Nox in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. NORTH ELECTRIC COMPANY. Employer. Dated---------------- By------------------------------------- (Representative) (Title) (This notice is not intended to affect either the validity of the current contract between the North Electric Company and Independent Workers Union of North Electric Company of Galion, Ohio, or any benefits accruing to employees thereunder.) 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 STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the Labor Management Rela- tions Act, as amended, 61 Stat. 13,6 (herein called the Act), was heard in Galion, Ohio, on February 4, 1960, pursuant to due notice to all parties. The complaint, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but denied the commission of the alleged unfair labor practices. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence and to argue orally. At the close of the hearing, the General Counsel addressed a brief oral argument to the legal issues. The Respondent waived oral argument. On March 11, 1960, briefs were received from the Respondent and the General Counsel which have been fully considered. Upon the entire record in the case, the Board's formal records in Case No. 8-RC-3468, of which I take official notice, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation with its principal office and place of business in Galion, Ohio, where it is engaged in the manufacture, sale, and distribu- tion of communications equipment. From its plants in Ohio, the Respondent an- nually ships products valued in excess of $1,000,000 to points outside the State of Ohio. Upon the foregoing facts, the Respondent concedes, and I find, that North Electric Company is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America , AFL-CIO (herein called Steelworkers) and Independent Workers Union of North Electric Company of Galion , Ohio (herein called Independent) are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events Since 1950, when the Independent was certified as the bargaining representative of the Respondent's production and maintenance employees, that union and the Company have maintained contractual relations. In July 1956 they executed a con- tract which had an expiration date in July 1959. In January 1959 the Respondent 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Independent began negotiations for a new contract . By letter, dated April 8, the Steelworkers notified the Respondent of its claim to represent a majority of the production and maintenance employees and requested a meeting with the Respondent. The Respondent declined and , on April 22, 1959, the Steelworkers filed a representa- tion petition wherein it requested an election in a unit composed of the production and maintenance employees at the Galion plant. North Electric Company, Case No. 8-RC-3488 . On May 1, a notice of hearing was issued on this petition and on May 21 , 1959, a hearing was conducted by the Regional Office. It is undisputed that the Respondent continued to negotiate with the Independent from January 1959, -through June 8, 1959, when these parties finalized the terms of a collective -bargaining contract . Alan Ryon, director of industrial relations for the Respondent , testified to this effect and also conceded that such negotiations were continued with knowledge of the Steelworkers' demand, the filing of the petition, the notice of hearing, and the conduct of the hearing. On July 6, 1959, the Board issued a. Decision and Direction of Election in North Electric Company, Case No. 8-RC-3468 . Pursuant to this Decision an election was held at the Respondent 's plant on August 4, 1959. The Steelworkers, the Independent and the International Association of Machinists , AFL-CIO (herein called IAM) appeared on the ballot.' The Independent won the election? There- after the Steelworkers filed objections to the conduct of election which were later withdrawn . On August 19, the Steelworkers filed the charge out of which the instant proceeding arose. The charge alleged, in relevant part, that the Respondent violated Section 8(a)(1) and (5) of the Act in having bargained and executed a contract with the Independent during the pendency of and prior to the settlement of an issue concerning representation . On August 26, 1959, the Regional Director for the Eighth Region, on behalf of the Board, certified the Independent as the majority representative for the production and maintenance employees at the Respondent's Galion plant. B. Contentions of the parties; conclusions with respect thereto In reliance on the recent case of Shea Chemical Corporation, 121 NLRB 1027, the General Counsel contends that the Respondent violated Section 8(a)(1) of the Act by continuing to bargain with the incumbent union after a rival, the Steelworkers, had raised a real question concerning representation. In answer, the Respondent asserts that: (1) there was no real question of representation during the period in dispute; and (2) that it was required to bargain with the Independent as the majority representative during the time in question, so that such bargaining was, per se, lawful. In the Shea Chemical case the Board held that the employer had violated Section 8(a)(1) and (2) of the Act by signing a collective-bargaining agreement with one union at a time when the claim of a rival union had raised a real question con- cerning representation. In reaching this conclusion the Board restated its adherence to the original Midwest Piping doctrine 3 and held that (ibid., at 1029) "upon presen- tation of a rival or conflicting claim which raises a real question concerning repre- sentation, an employer may not go so far as to bargain collectively with the in- cumbent (or any other) union unless and until the question concerning repre- sentation has been settled by the Board." If the petition of the Steelworkers be held to have raised a real question concerning representation the holding of the Shea Chemical case is clearly applicable to the instant situation. In North Elec- tric Company, Case No. 8-RC-3468, which involved all the parties in the present proceeding and in which .the same question concerning representation was raised and ruled upon, the Board found that a real question of representation existed and directed an election. Under these circumstances, and in view of this decision, I conclude and find, that the Steelworkers' petition, filed on April 22. 1959, raised a real question concerning representation and that, as 'a result, the Respondent and the Independent were not thereafter free to bargain collectively until that question had been resolved by the Board. The Employer and the incumbent union, how- ever, admittedly continued to bargain until they reached agreement on the final terms of a collective-bargaining contract on about June 8, 1959. On the basis of i Both the Independent and the TAM intervened in the representation proceeding. 2 The official tally of ballots records the following votes cast, For the Steelworkers----------------------------------------------------. 300 For the Independent-------------------------------- ----------------------------------------------------- 374 For the TAM ------------------------------------------------------------ 63 8 Midwest Piping & Supply Co., Inc., 63 NLRB 1060. NORTH ELECTRIC COMPANY 681 Shea Chemical, supra, I find that this conduct on the part of the Respondent violated Section 8(a) (1) of the Act. See also: Brittany Dyeing and Printing Corp., 126 NLRB 785; Novak Logging Company, 119 NLRB 1573, 1574-1576; Detroit Plastic Products Company, 126 NLRB 1182.4 IV. THE ISSUES AS TO AN APPROPRIATE REMEDY; CONCLUSIONS WITH RESPECT THERETO Under normal circumstances, having found that the Respondent has engaged in ,and is engaging in unfair labor practices, it would be incumbent upon the Trial Examiner to recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. To the problem of what remedy, if any, would be appropriate in the situation presented here, we will now turn. This entire case is centered on the Respondent's having negotiated with the Independent during the months of April, May, and June 1959, and having concluded those negotiations with the execution of a collective-bargaining contract. I have found that these negotiations were unlawful and in violation of Section 8 (a) (1) of the Act. It follows that the fruit of this unlawful conduct, the contract agreed upon in June 1959, was likewise illegal. Shea Chemical Company, and cases cited supra. Moreover, the maintenance of such an agreement, unlawful from its inception, con- stitutes -a continuing violation of the Act. N.L R.B. v. Gaynor News Company, Inc., 197 F. 2d 719, 722 (C.A. 2), affd. sub nom., Radio Officers' Union, etc. (A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17; Leo Katz, et al., d/b/a Lee's Depart- ment Store v. N.L.R.B., 196 F. 2d 411, 415 (C.A. 9); Bryan Manufacturing Com- pany, 119 NLRB 502, 505, enfd. sub nom., Local Lodge No. 1424, International As- sociation of Machinists, AFL-CIO; et al. v. N.L.R.B., 264 F. 2d 575 (C.A.D.C.), 360 U.S. 916 [362 U.S. 411, reversing 264 F. 2d 575].5 It is for this reason that in Shea Chemical Corporation, on which the General Counsel relies, the Board ordered the employer there involved to cease and desist from recognizing or contracting with the offending union and to cease giving effect to the agreement arrived at in vio- lation of the Midwest Piping rule "unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among such employees." (Ibid., at 1030.) This type of remedy has been standard in those decisions where the Board has found a violation of the Midwest Piping rule. See: Brittany Dyeing and Printing Corp., supra; Detroit Plastic Products Company, supra; Novak Logging Company, 119 NLRB 1573, 1576-1577. At this point it is in order to review the chain of circumstances which led up to the filing of the charge on August 19, 1959. All of the events on which the charge was based occurred prior to the election. Moreover, on this record, it is apparent that during this period the employees at the Galion plant were apprised of the ne- gotiations then in progress between the Respondent and the Independent On June 23, 1959, the president of the Company addressed a letter to all the employees in which he urged that they approve and accept the terms of the new agreement offered to the incumbent union by the Respondent. In this letter, President William Tucker stated, in part, as follows: For the past eight weeks, bargaining representatives of the union [the Inde- pendent] have met with bargaining representatives of the Company for the purpose of negotiating a new contract to become effective July 1. The ne- gotiations have been marked with sincerity on the part of both groups and I personally feel that lack of agreement has resulted from lack of understanding rather than the absence of good will. This letter is addressed to you in an effort to clarify the matters still at issue and to bring about on your part a de- 4 The Respondent also contends that any violations of the Act which were committed in the preelection period were rendered moot by the Board's certification of the Independent. The Board 'has held otherwise, however, as to unfair labor practices which are inde- pendent of the election issues Union Furniture Company, Inc. 118 NLRB 114S. 1149, footnote 1 ; American Furniture Compan4j, Inc, 118 NLRB 1139 1140, footnote 1 : and American Sheet Metal Works, 106 NLRB 154, 155 5In Bryan Manufacturing the Board stated (119 NLRB at 505) • . we can per- ceive no difference in illegality between a contract unlawful on its face, that is, one prescribing a form of union-security prohibited by the statute, and a contract invalid because certain requisites to the making of a valid contract have not been complied with In 'both Instances the invalidity begins at a point in time and continues so long as the unlawful contract remains in effect." [Emphasis supplied I 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cision that will contribute to the welfare of all of us who collectively make up North Electric Company. Now is the time for you to demonstrate your understanding and your appreci- ation of these circumstances and pledge to your management your continued support. Advise your representative that you, individually, approve and accept the terms offered-DO IT NOW' There is no evidence whatsoever that the Respondent made any effort to conceal its negotiations with the Independent. Indeed, by the widespread circulation of the foregoing letter among the employees at the plant, the fact that the Respondent and the Independent had been negotiating the terms of a new agreement obviously became a matter of common knowledge. It would be naive to presume that the,representa- tives of the Steelworkers were unaware of these developments. On the contrary, from the widespread promulgation of the aforesaid company letter alone, it is inferable, and I find, that the Steelworkers learned of the negotiations between the Respondent and the Independent long before the election. Moreover, it must also be presumed that the Charging Union was aware of the Shea Chemical case decided in September 1958, which held that such conduct by the Company and the incumbent labor or- ganization constituted an unfair labor practice. Nevertheless, the Steelworkers did not file a charge to that effect prior to the election. To have done so then, of course, would have stopped the election. Aiello Dairy Farms, 110 NLRB 1365, 1367. Not until after the Steelworkers had lost the election of August 4, did that union file charges that the Respondent had violated Section 8(a)(1) and (5) by its conduct. This type of maneuver has been condemned by the Board. Thus, in the Aiello case, the Board stated (ibid., at 1368): We see no reason for permitting a labor organization after it has thus resorted to a representation election with knowledge of unfair labor practices to revert to an 8(a) (5) proceeding based upon the same unfair labor practices as a means of establishing its representative status. We therefore find that the Union may not now urge facts which. took place before the representation election- as grounds for finding a violation of Section 8(a) (5). Accordingly, the Board in that case dismissed the 8 (a)(5) allegations of the com- plaint.6 Here the General Counsel did not issue a complaint under Section 8(a)(5), as well as Section 8(a) (1), although the charge had alleged violations of both those subsections. Instead, the complaint alleged a violation solely of Section 8(a)(1). Nevertheless, the only appropriate remedy for the type of violation herein involved requires that the unlawful contract be set aside and that the Respondent cease recog- nizing the Independent unless and until the latter demonstrates its majority status in a Board election. This, of course, would require that the certification of the Inde- pendent, dated August 26, 1959, be set aside. The General Counsel, however, does not seek an order that would set aside the unlawful contract and invalidate the certi- fication yin Case No. 8-RC-3468. Indeed, in his brief he stated : The General Counsel in this case expects an order that will prevent such future unfair labor practices and in no way intends to remedy the damage wrought by the unfair practices that occurred early in 1959. [Emphasis supplied.] 7 From the above I must conclude that the General Counsel seeks only a narrow order which would require no more than the posting of a notice and a pledge by the Respondent that in the future it will not violate Section 8(a)(1) of the Act. Such limited relief would in no way disturb the agreement born of the Respondent's unlawful conduct. Nor would it affect the certification of the Independent, the other OIn concluding that the complaint should be dismissed, the Board stated in Aiello: . . sound administrative practice . . . requires that the Board refuse to proceed with a representation election when charges of refusal to bargain 'have been filed. [Footnote omitted I For the Board, as custodian of a public statute, should not be compelled to diffuse its energy and expend time and public funds in useless and repetitive proceedings. The Union in this case by delaying the filing of its 8(a) (5) charge circumvented the Board's sound practice of not conducting a representation election when an 8(a) (5) charge is pending and caused the Board to conduct a futile election. . . . [14cm 1 7 The Steelworkers did not engage in oral argument at the hearing or file a brief. Con- sequently, its theory, if any, as to the appropriate remedy, must remain in the realm of speculation AMERICAN CYANAMID COMPANY (MARIETTA PLANT) 683 party to that unlawful course of action. Very plainly, an order so limited that it disturbed neither the contract with the Independent nor the certification in the repre- sentation proceedings would only insure to the Respondent the fruits of its unfair labor practice. Consequently, it is my conclusion, on the basis of the unfair labor practice here involved, and the above cited cases, that any remedy short of an order which set aside the unlawful agreement and invalidated the certification in Case No. 8-RC-3468 would not only be inadequate but would fail to effectuate the purposes and policies of the Act. On the other hand, an order that was comprehensive enough to remedy the unlawful conduct in question would permit the Steelworkers, after having lost the election, to accomplish an objective that is forbidden by the Aiello case.8 Accordingly, I shall recommend that the complaint in this case be dismissed. Aiello Dairy Farms, 110 NLRB 1365, 1367-1369; Rupp Equipment Company, 112 NLRB 1315, 1318; Southwester Co., 111 NLRB 805, 807; Armstrong Tire and Rub- ber Company, Tire Test Fleet Branch, 111 NLRB 708, 709-710, enfd. 228 F. 2d 159 (C.A. 5). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Independent and the Steel- workers are labor organizations, all within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) of the Act. 4. For .the reasons set forth above, more particularly in section IV, the complaint herein should be dismissed. [Recommendations omitted from publication.] 8 See Aiello Dairy Farms, 110 NLRB at 1368. "[B]y delaying the filing of its 8(a) (5) charge, [the Charging Party] circumvented, the Board's sound practice of not conducting a representation election when an 8 ( a)(5) charge is pending and caused the Board to conduct a futile election." American Cyanamid Company (Marietta Plant ) and Inter- national Chemical Workers Union, Local 120, AFL-CIO.' Case No. 9-CA-1445. November 16, 1960 DECISION AND ORDER On August 26, 1959, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that said complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel and the Union filed exceptions to the Intermediate Report, together with supporting briefs. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the limited extent indicated below 2 i Hereinafter referred to as the Union. 2 We do not approve or adopt the gratuitous and injudicious comments of the Trial Examiner in footnote 3 of the Intermediate Report 129 NLRB No. 77.