Colony Materials, Inc.

COLONY MATERIALS, INC. 105 4. By the foregoing conduct, by interrogating employees concerning their mem- bership in and activities on behalf of the Union , by inviting them to sign antiunion petitions and to solicit other employees to sign such petitions, and by threatening employees with economic disadvantage in their employment in consequence of con- tinued union activities, the Respondent has interfered with, restrained, and coerced employees in the rights guaranteed 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendation omitted from publication.] Colony Materials, Inc. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492. Case No. 33-CA-635. Febrwary 10, 1961 DECISION AND ORDER On September 28, 1960, Trial Examiner Howard Myers 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. 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, conclusions, and recommenda- tions of the Trial Examiner, with the following additions. We find in agreement with the Trial Examiner that the Respondent is the successor employer of the business formerly operated by Ken- neth Pike, d/b/a Ken Pike Ready-Mix Concrete Company, and as such was obligated to bargain with the Union. The Union had been certified as the exclusive representative of Pike's truckdrivers and laborers less than a year before the Respondent purchased the plant, equipment, and good will of Pike's business, and continued its opera- tions. On March 31, 1960, Pike terminated all his employees and turned over his business to Respondent. The next day, the Respond- ent commenced operations. A substantial number of employees ter- minated by Pike were hired by Respondent while other employees were newly hired. Despite the contentions of the Respondent, we find that no substantial changes in operation, supervision, or in the duties of the employees were effected. It is well settled that a Board certification must be honored for a reasonable period, normally 1 year, in the absence of unusual circum- 130 NLRB No. 11. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances.' Neither change in ownership,' nor turnover in the compo- sition of the certified unit,' are such unusual circumstances as to affect the force of the certification. As the Respondent has continued its predecessor's business from the same location, using the same equip- ment, handling the same products, and with employees, a substantial .group of whom were Pike's employees, performing the identical func- tions as Pike's employees, we find that the obligation of the prede- cessor employer to bargain with the Union devolved upon his successor, and that Respondent's refusal to bargain is therefore a vio- lation of Section 8(a) (5). We also agree with the Trial Examiner that the Union did not limit its request for bargaining to the replacement of Pike's employees who had not been hired by Respondent, but relied on its certification as the basis for negotiating a bargaining agreement with the Respondent. 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, Colony Ma- terials, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, as the exclusive representative of all its truck- drivers and laborers employed at its Santa Fe ready-mix concrete plant, excluding office clerical, plant clerical, technical, and profes- sional employees and all other employees, guards, and supervisors, as defined in the Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose 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 authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 1 Ray Brooks v NLRB , 348 U S 96. 2 See cases cited in footnote 7 of the Intermediate Report 3 Old King Cole, Inc, 119 NLRB 837, 842, enfd. sub nom. Old King Cole, Inc. v. NLRB, 260 F 2d 530 (CA. 6). COLONY MATERIALS, INC. 107 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act; (a) Upon request, bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, as the exclusive representative of all employees in the aforesaid appropriate unit, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Santa Fe, New Mexico, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after having been duly signed by Respondent's repre- sentative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. d 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 Deciee 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, as amended, we hereby notify you that : WE WILL bargain collectively, upon request, with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, as the exclusive representative of all our employees in the unit described herein with respect to rates of pay, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. The bargaining unit is: All truckdrivers and laborers employed by the undersigned at its Santa Fe, New Mexico, operations, excluding office clerical, plant clerical, technical, and professional employees, 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and all other employees, guards, and supervisors as defined by the Act. WE WILL NOT in any like or related manner interfere with, re- strain or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or refrain from any and 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. COLONY MATERIALS, INC., 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 a charge duly filed on April 11, 1960, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel i and the Board, through the Regional Director for the Sixteenth Region (Fort Worth, Texas, issued a complaint, dated June 2, 1960, against Colony Materials , Inc., he>,ein called Respondent , alleg- ing that Respondent has engaged in and is engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (a)(5) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called the Act. Copies of the charge, the complaint, and notice of hearing thereon were duly served upon Respondent and copies of the complaint and notice of hearing thereon were duly served upon the Union. Specifically, the complaint alleged that since April 1, 1960, Respondent, although requested to do so, has refused to bargain collectively with the Union. Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was heard at Albuquerque, New Mexico, on July 27 and 28, 1960, before the duly designated Trial Examiner Each party was represented by counsel and participated in the hearing. Full opportunity was granted the parties to examine and cross -examine witnesses , to introduce evidence pertinent to the issues, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before August 25, 1960. Each party has filed a brief and said briefs have been carefully considered? 1 This term specifically includes counsel for the General Counsel appearing at the hearing 2 On August 18, 1960, Respondent's counsel filed a motion, copies of which were duly served upon counsel for the other parties, seeking to correct certain inaccuracies appearing in the stenographer's report of the hearing The motion is hereby granted and the motion papers are hereby received in evidence and are marked "Trial Examiner's Exhibit No 1 " COLONY MATERIALS, INC. 109 Upon the record as a whole, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS OPERATIONS Kenneth Pike, doing business as Ken Pike Ready-Mix Concrete Company, herein called Ken Pike, prior to April 1, 1960, was engaged in the manufacture, sale, and distribution of ready-mix concrete and related products at Santa Fe, New Mexico, and was the only such business in the Santa Fe area. Colony Materials, Inc., was incorporated under the laws of the State of New Mexico on February 23, 1960, and since April 1, 1960, has been engaged, upon the premises formerly used by Ken Pike, in the manufacture, sale, and distribution of ready-mix concrete'and related products. On a projected basis during the first year of Respondent's business operation it will purchase trucks, equipment, and other goods and material of a value in excess of $50,000 from other firms located in the State of New Mexico, who, in turn, will receive said trucks, equipment, and other goods and material directly from points located outside the State of New Mexico. Upon the basis of the foregoing admitted facts, the Trial Examiner finds, in line with established Board authority, that Respondent is engaged in, and during all times material was engaged in, business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that its business operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Re- spondent. III. THE UNFAIR LABOR PRACTICES A. The pertinent facts On August 20, 1959, following a Board-conducted election, the Union was cer- tified as the collective-bargaining representative of all Ken Pike's truckdrivers and laborers. Following such certification, negotiations were carried on between repre- sentatives of the Union and representatives of Ken Pike. However, no agreement on a contract was reached. On February 23, 1960,3 Ken Pike entered into a contract of sale to Philip H. Naumburg. Said contract covered certain physical properties consisting of the batch plant, a silo, trucks and spare parts, and office equipment, but specifically excluding Ken Pike's bank account, accounts receivable, and accounts payable. The contract further provided for the delivery of possession to Naumburg on or before April 1. Paragraph 10 of the contract reads as follows: Buyer does not acquire or assume any contractual obligations of Seller, ex- cept as Lessee and Licensee under those two certain leases with the Atchison, Topeka, and Santa Fe Railway and pipeline license with the said Railway here- inabove described; and Seller represents that there are no outstanding contracts for the delivery or purchase of materials which purport to be binding upon Seller's successors or assigns; and there is specifically excluded from this Con- tract and transaction any obligation upon or undertaking by Buyer with respect to any Union Contract or other type of obligation or purported obligation to any Union or organization of employees, nor shall Buyer have any obligation to employ any of the employees presently hired by Seller or who may be em- ployed by Seller at the time possession of the business and property is delivered to Buyer, nor does Buyer assume any other obligation which Seller may owe any of his aforesaid employees. On February 23, Respondent was incorporated and Naumburg became its presi- dent and he transferred the aforementioned contract to Respondent. Following the sale, Ken Pike continued to operate the business for over a month during which period Naumburg familiarized himself with the operation of the batching plant, the mixer trucks, as well as acquainting himself with the em- ployees' abilities and capabilities. Sometime in February, but prior to the execution of the contract of sale, Naum- burg was introduced to Leonard L. Pickering, Esq., by Pike. Naumburg then and there retained Pickering, a specialist in labor law, as Respondent's advisor. Picker- 3 Unless otherwise noted all dates hereinafter mentioned refer to 1960. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing explained to Naumburg that Naumburg, by purchasing Ken Pike's business, would not have to accord the Board's August 20, 1959, certification any recognition at all nor would the said certification have any binding effect upon the new owner of Ken Pike's business. In addition to the specific written terms of the contract of sale, Kenneth Pike agreed to remain at the plant for about a month in an advisory capacity, to intro- duce Naumburg to the customers, and to explain to Naumburg the various plant operations and problems. Following the transfer of the business from Ken Pike to Naumburg, Ken Pike's name remained on all the equipment for at least 2 months and the enterprise was held out to the public as that of Ken Pike. The name on the seller's equipment was not changed until nearly a month after the charge in the instant proceedings was filed. On March 31 and shortly prior thereto, Ken Pike had the following persons em- ployed in the respective classifications set forth opposite their names. Dan Ortiz--------------- ------------------------ Part-time extra driver. Max Vigil --------------------------------------- Truckdriver. Casamiro Archuleta------------------------------- Laborer. Dave Griego------------------------------------- Driver. Joe Tena---------------------------------------- Do. Rother Yeager ------------------------------------ Do. Gilbert Gallegos---------------------------------- Batch plant operator. Hilario Anaya------------------------------------ Driver. Dudley Odell ------------------------------------- Laborer. Florentino Rael----------.------------------------ Driver. Tony Leyba-------------------------------------- Do. Jack Sloan--------------------------------------- Mechanic. Leonard Heidel----------------------------------- Supervisor. Ted Williams------------------------------------- Office man. On April 1 , Respondent took possession of the physical assets and began opera- tions at the site where Ken Pike had conducted its business operations . Respondent began operations with the following employees: Leonard Heidel ------------------- Batch plant operator and truckdriver. David J. Allen ------------------- Bookkeeper and truckdriver. Casamiro Archuleta --------------- Laborer. Jess Cordova --------------------- Truckdriver. Elmer Duffield -------------------. Do. Juan Chavez --------------------- Do. Dave Griego --------------------- Do. Dan Ortiz ------------------------- Do. John E . Sloan -------------------- Do. Carl Sverre ----------------------. Do. Max Vigil ----------------------- Do. The only change in the operation of the business was with regard to the greasing and cleaning of the trucks. Under Ken Pike, Odell, a part-time employee did that work; under Respondent the work is now being done by the individual drivers. Although Respondent denies that Heidel is presently a supervisor, Naumburg testi- fied, and the Trial Examiner finds, "And Mr. Heidel the first week or two there, had the idea that he was running the plant, because he had been there so long, and one thing and another. And it took us a week or two to get him down to where he was nothing more than batch plant operator and a truck driver, which is what he was hired for." Heidel, however, continued to do the same things he had done for the predecessor employer, he gave orders to the truckdrivers, and the employees were not informed that he was no longer a supervisor. The orly change in the duties noticed by the disinterested witness, Kenneth Pike, was after the strike began April 12. Again this was after the charge in the present case was filed. The mechanic for the predecessor company continued to do the same work, until the strike began when he was ur;ed to drive a truck. Thus the record clearly discloses that on April 1, Respondent began operations with 10 men and 1 supervisor. Of these 11 men, 6 (Heidel, Archuleta, Griego, Ortiz, Sloan, and Vigil) had worked for the predecessor company the previous day. In addition, Jess Cordova had worked for Ken Pike as an extra driver on several occasions during the year. Only 4 of the 11 had never worked for Ken Pike. On April 1, the day Respondent took over the operation of the business. Roland B. Kool, Esq, attorney for the Union, telephoned Thomas B. Catron III, Esq., secretary-treasurer and attorney for Respondent. Regarding this telephone conver- sation, Kool testified, and the Trial Examiner finds, COLONY MATERIALS, INC. III I explained to him that I was the attorney for the Teamsters; that in August, 1959, the employees of Kenneth Pike had held an election with-under the auspices of the Federal government and had elected the Teamsters to represent them for purposes of contract. Prior to this I asked him if he was attorney for Colony Materials, Inc., and he advised me that he was. I asked him whether or not his client would recognize the Teamsters and bargain with them con- cerning the terms of a collective bargaining agreement. He replied that he was unaware of the certification but said that the terms of the contract were such that Colony Materials did not assume any of the obligations of Ken Pike Ready Mix. I told Mr. Catron that I did not feel that the contract between Ken Pike Ready Mix and Colony Materials, Inc., could affect the certification and that it was a right granted to the employees. The same day, April 1, Kool wrote Catron, in part, as follows: In further explanation of my position during our telephone conversation of this date, please find enclosed the National Labor Relations Board certification of the Teamsters as collective bargaining representative of the employees of- Ken-Pike. I understand that Ken-Pike has sold the plant and equipment to Colony Ma- terials, Inc., and that they assumed no responsibility under any pre-existing con- tracts; however, as explained today, this certification is not a contract between the employer and the employees, but, in fact is a determination by the United States Government that such employees within the plant desire representation.. This fact is not changed by the transfer of interest to another complete entity. Catron made no reply to either the telephone request for recognition nor to the letter Thus the request for recognition and bargaining as of April 1, is. uncontroverted. On April 6, Faro Caudill, secretary-treasurer of the Union, Roger Wallace, or- ganizer for the Western Conference of Teamsters assigned to the Union, and F. R. Childress, business agent for the Union, called upon Catron. Again Catron was. asked by the said union representatives to recognize the Union as the bargaining, representative of the employees for whom the Union had been certified on August 20, 1959. Caudill, after asking Catron, "To recognize the Union as a bargaining representative of the people and . . . to work out a contract covering hours, wages and conditions," stated "there were a number of people that had been either let go, or not taken by Colony who had formerly worked for Ken Pike and we'd like to ask that he (Naumburg) put those men back on the job and then sit down and work out an agreement." Catron replied that he did not know what Naumburg's position was "in the matter" but would contact Naumburg and would arrange a meeting. between himself, Naumburg, and the Union as soon as possible, the next day if possible. On April 7, the same union representatives who had conferred with Catron the previous day, met in Catron's office with Naumburg, Pickering, and Catron. Caudill testified that, after introductions had been had, the union representatives asked that Respondent "recognize the Union and bargain on a contract of [sic] wages, hours and conditions and the employees be put back to [sic] their normal positions and try to get things worked out." Pickering and Naumburg each testified 4 that no request for recognition or bargaining was made by any union representative at that meeting. The only discussion had at the meeting, referred to immediately above, was a lengthy discussion regarding the hiring of the Ken Pike employees whom Respondent did not retain when it took over Ken Pike's operations. The net result of the meet- ing was Respondent's refusal to recognize the Board's August 20, 1959, certification and Respondent's refusal to recognize or bargain with the Union unless and until the Board certified the Union as the collective-bargaining representative of Respond- ent's employees. On April 12, the Union placed a picket line at Respondent's establishment. B. Concluding findings Respondent argues in its brief "that at no time did the Teamsters ever request Colony to meet and negotiate with it for the purpose of negotiating a contract as the representative of Colony's employees " The record belies this argument. In the first place, Kool, on April 1, requested recognition of the Union as the statutory repre.- * Catron was not called as a witness. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative of the employees involved and that Respondent bargain with the Union as such representative in his telephone conversation with Catron. Kool followed up this oral request in his April 1 letter to Catron . In the second place, Caudill and two other union representatives demanded recognition and a meeting to negotiate a bargaining contract in the aforementioned April 6 meeting with Catron. At the nearing and in its brief Respondent contended that at the April 7 meeting no request for recognition was made. It is settled law that a request for recognition need not follow a prescribed form so long as it is clear from the entire situation that all essential elements of a valid demand are present . Considering the Union's re- marks at the April 6 meeting with Catron in the light of the relationship between the parties prior to that date, the Trial Examiner is convinced , and finds, that Re- spondent was aware that the Union was claiming to represent a majority of Re- spondent's employees at the April 7 meeting and was requesting recognition. Thus, on April 1 and 6, the Union explicitly and unequivocally requested recognition and it therefore follows that Respondent 's contention that no demand for recognition or to bargain was ever made is without merit or substance . This finding is buttressed by the fact that prior to the purchase of Ken Pike 's business Naumburg was well aware that the Board had certified the Union as the collective -bargaining representative of .the employees herein involved. Respondent also argues that it is not bound by the Union's certification because the terms of the sales contract expressly provide that Respondent "does not acquire or assume any contractural obligations of" Ken Pike "and these is specifically ex- cluded from this Contract and transaction any obligation upon or undertaking by Buyer with respect to any Union contract or other type of obligation or purported obligation to any Union or organization of employees , nor shall Buyer have any obli- gation to employ any of the employees presently hired by Seller or who may be em- ployed by Seller at time possession of the business and property is delivered to Buyer, nor does Buyer assume any obligation which Seller may owe any of his aforesaid employees." There is no merit or substance to that argument for it is well established that private parties may not by contract void an obligation imposed by a Federal law.5 Furthermore, it is well settled that a Board certification must be honored for a reasonable period of time, normally 1 year, in the absence of unusual circumstances.6 A change in ownership is not such an unusual circumstance as to affect the force of a Board certification . Where the enterprise remains substantially the same, as here, the obligation to bargain of a prior employer devolves upon his successor in title. A purchaser in such a situation is a successor employer.? Accordingly, the Trial Examiner finds that by refusing to bargain with the Union on and after April 1, 1960, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) of the Act. The Trial Examiner further finds that by such conduct , Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act within the meaning of Section 8(a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in con- nection with its business operations described in section I, above, have a close, inti- mate, 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices , the Trial Examiner shall recommend that it cease and,desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. The Trial Examiner shall therefore recommend that Respondent, upon request , bargain collectively with the Union as such representative and, in the event an understanding is reached , embody such understanding in a signed agreement. 8 See J I. Case Company v N L R B , 321 US 332 , National Licorice Company v NLRB , 309 US 350 6 Ray Brooks v N L R B, 348 U S 96 7 ligite Gas Incorporated, 120 NLRB 494; Fii chase Logging Company, Inc, 126 NLRB 1215 , N L R B v Albert Armato , etc, 199 F 2d 800 (C A 7 ) , Royal Brand Cutlery Company, A Division of Brockelman Brothers, Inc, 122 NLRB 901. LEONARD NIEDERRITER COMPANY, INC. 113 It will also be recommended that Respondent cease and desist from any like or related manner infringing upon the rights of employees guaranteed in Section 7 of the Act. 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. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, is a labor organization within the meaning of Section 2(5) of the Act. 2. Colony Materials, Inc., is an employer within the meaning of Section 2(2) of the Act. 3. All Respondent's truckdrivers and laborers employed at its Santa Fe, New Mexico, operation, excluding office clerical, plant clerical, technical, and professional employees, and all other employees, guards, and supervisors, as defined by the Act, constitute, and during all times material constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization at all times since August 20, 1959, has been the exclusive collective-bargaining representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on and after April 1, 1960, to bargain collectively with the afore- said labor organization as the exclusive collective-bargaining representative of all employees in the 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. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, And coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act;-and has thereby engaged in unfair labor practices within the meaning of Sec- tion 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.] Leonard Niederriter Company, Inc. and Retail Clerks Inter- national Association, Local Union 1538, AFL-CIO. Case No. 6-CA-1855. February 10, 1961 DECISION AND ORDER On August 11, 1960, Trial Examiner Henry S. Sahm 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 a copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report with 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-noelnber panel [Menibers Rodgers, Jenkins, and Fanning]. 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 130 NLRB No. 10. 597254-61-vol. 130-9 k