Essex Wire Corp.

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speaking "to a lot of people about it." 8 I find that McLean's interrogation of em- ployees concerning their union sympathies was violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the 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 McLean's interrogation of Siele does not appear to be an isolated incident , in view of Siele's uncontradicted testimony that McLean told him that he had been talking "to a lot of people." Accordingly, it will be recommended that the Respondent cease and desist from interrogating its employees concerning their union membership and activities, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discharging Frank Tumminello and thereafter by failing to recall and re- employ him the Respondent did not engage in any unfair labor practices within the meaning of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. (Recommendations omitted from publication.] 8 Siele testified further concerning speeches made by both Brown and McLean about the time of a representation hearing held by the Board (May 11 , 1959 ) and before the election conducted by the Board . It is clear from this testimony as a whole that the Respondent was campaigning against the Union within permissible bounds and that its conduct was not violative of the Act. For example, during a speech to employees about June 15, 1959, Brown stated, "He was going to fight the union with the truth and for every pamphlet that the union put out he was going to put one out." Essex Wire Corporation and United Steel Workers of America, AFL-CIO. Case No. 10-CA-4076. February 17, 1961 DECISION AND ORDER On April 18,1960, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 130 NLRB No. 38. ESSEX WIRE CORPORATION 451 rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the exceptions to the Intermediate Report for the reasons discussed below. Accordingly, the Board adopts only those findings, conclusions, and recommendations of the Trial Ex- aminer which are consistent with this Decision and Order. As the charges pertain to both the Respondent's plant and ware- house in Birmingham, Alabama, which were concededly represented by the United Steel Workers (hereinafter referred to as the Union), and to a new warehouse opened by the Respondent in Birmingham, which is allegedly an accretion to the Union's unit, the facts pertain- ing to each location will be discussed separately. The new warehouse: In late 1958 or early 1959 Respondent decided to open a new warehouse in Birmingham in order to handle catalog items which previously had been handled at the warehouse connected with the main plant. On February 4, 1959,1 operations began and on February 6, six warehousemen, all new employees, were hired to staff the new installation. Local 612, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein- after referred to as the Teamsters), requested recognition as bar- gaining representative, was refused, and filed a petition and six designation cards with the Board on February 9. A stipulation for certification upon consent election was entered into by the Teamsters and the Respondent on February 12, an election was held on February 20, which the Teamsters won 6-0, with no challenges, and the Team- sters was certified on March 3. On March 9, Teamsters and Respond- ent entered into a contract effective as of March 11. Subsequently, the Union became aware of this situation, and on April 25 moved the Board to set aside the certification of representa- tives. The Board issued a show cause order which was answered only by the Respondent in the form of an affidavit setting forth the above facts, and on June 15 the Board vacated the certification and set aside the election. The Union picketed the Respondent's plant and warehouse and the new warehouse from June 15 to 25, effectively stopping the transfer of goods and equipment from the old to the new warehouse. On June 25, the Respondent and the Union entered into an "interim" agree- ment covering all Birmingham locations, and on June 26 the new warehouse reopened, now staffed with the six senior warehousemen from the old warehouse. The Teamsters pressed no charges regarding the abrogation of its contract or discharge of the employees it repre- sented. From June 26 until July 31, the new warehouse remained opened and stock and equipment were moved back to the old ware- house, and on July 31 the new warehouse was permanently closed. ' Unless otherwise specified, all dates are in the year 1959. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The old warehouse and plant: The Union was certified by the Board in 1952 and represented the approximately 175 employees in the plant and approximately 25 in the old warehouse by contract from March 1956 until March 22, 1959. Sixty days' notice of termination required by that contract was given by the Respondent on January 14. During December 1958, the employees and Union learned of the plans for a new warehouse and the Union orally demanded recogni- tion, apparently on the theory of accretion. In January and early February there were several small layoffs at the plant but bargaining continued between February 5 and March 30. On Friday, February 27, the Respondent terminated the plant employees and shut down the plant for concededly valid economic reasons. The old warehouse remained open and staffed. The old warehouse was shut down and all employees therein were terminated on March 29. As discussed above, the six senior warehousemen worked at the new warehouse from June 26 until July 31. From the latter date they continued employment at the old warehouse until it was permanently closed on November 25. Respondent no longer operates in the Bir- mingham area; its closest operation appears to be in Atlanta, Georgia, some 150 miles away. All of the shutdowns were concededly nondis- criminatory in character and for valid economic considerations. The Trial Examiner found that the new warehouse constituted an accretion to the Union's preexisting unit and that the terms of the Union's contract were applicable at all locations. Accordingly, he, found that the Respondent violated Section 8(a) (2), (3), and (5) and derivatively, Section 8 (a) (1) by refusing to bargain with the Union concerning representation in the new warehouse, by recogniz- ing and contracting with the Teamsters, and by failing to post jobs in the, new warehouse in accordance with the contract and/or honor the seniority provisions of the contract to the detriment of the six senior warehousemen. The Trial Examiner also found that the Respondent violated Sec- tion 8 (a) (5) and (1) by the unilateral nature of its February 27 shut- down, but recommended that no order be issued due to the concededly nondiscriminatory motive for the shutdown, the absence of any nearby operation of Respondent and attendant lack of situs of an unfair labor practice, and the absence of contention by the Union that it represents employees of the Respondent at Atlanta or elsewhere. No exception was taken to the Trial Examiner's recommendation that no order be issued concerning this finding. As indicated above, the Trial Examiner's findings of violations in- volving the new warehouse were predicated upon his conclusion that the new warehouse constituted an accretion to the unit represented by the Union and could not, therefore, constitute a separate appropriate unit. We do' not agree with this conclusion. ESSEX WIRE CORPORATION 453 As substantially set forth in the Intermediate Report, the record establishes that the new and old warehouses were separately located, about 3 miles apart; that they were under separate immediate but common ultimate supervision; that although the jobs at the two ware- houses were virtually interchangeable, there was in fact no inter- change; that although the supervisor of the new warehouse had formerly been a plant supervisor, none of the nonsupervisory em- ployees at the new warehouse had formerly been employed at the plant or old warehouse; that although the new warehouse took over some of the functions of the old warehouse and handled catalog items produced at this plant and other plants, it was not intended to dupli- cate any of the functions of the old warehouse while both were in operation, and did not handle any of the large items produced at the plant; and that the new warehouse had never been bargained for as part of the plantwide unit. On these facts we find, in accord with well-establis] ied Board precedent, that the new warehouse was a com- pletely new or different operation, rather than an accretion to the existing unit? Moreover, even assuming arguendo, that factors tend- ing to establish an accretion exist herein, it is apparent that they are effectively counterbalanced by the aforementioned factors which tend to establish the appropriateness of a separate unit. In these circum- stances, the Board has consistently held that the employees in the new area will decide, by means of a self-determination election, whether or not they wish to be represented separately or as part of the pre- existing unit.' To hold that the new warehouse is an accretion to the unit represented by the Union would be to contravene the policies expressed in this long line of cases, and would effectively deprive the employees of the right to determine the issue of representation. In these circumstances, and as the Union has not independently established its majority status among the employees at the new ware- house, we find that the Respondent's refusal to bargain with the Union concerning the new warehouse did not violate Section 8 (a) (5) of the Act. As the Union had no showing of interest among the em- ployees at the new warehouse, and would therefore not have been en- titled to a place on the ballot in the representation proceeding, even if it had had notice thereof,4 we find that its claim to represent such 3 Scrivner Stevens Company, 104 NLRB 506 ; Armstrong Cork Company (Lancaster Floor Plant), 106 NLRB 1147; Illinois Malleable Iron Company and Appleton Electric Company, 120 NLRB 451 ; and see Pittsburgh Valve Company, et al, 114 NLRB 193; American Engineering Company, 112 NLRB 14 , Plastic Molding Corporation, 112 NLRB 179, Southwestern Greyhound Lines, Inc, 112 NLRB 1014 , Rockingham Poultry Coopera- tive, Inc., 113 NLRB 376; Fleming & Sons, Inc, 118 NLRB 1451 ; Chrysler Corp. (Ohio Stamping Plant), 119 NLRB 1312 , General Electric Company , 111 NLRB 1246 ; United States Rubber Company, 109 NLRB 1293. See cases cited in footnote 2, above. See A.M. & F Products, 106 NLRB 1074, footnote 2. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees did not raise a real question concerning representation,5 and that the Respondent's recognition of the Teamsters did not there- fore violate Section 8(a) (2) .6 And as, in the absence of a finding of accretion, there is no basis for finding the contract between the Union and Respondent to be applicable to the new warehouse, the Trial Examiner's finding of discrimination in the staffing of the new ware- house, being predicated upon the contract, must necessarily fall. Ac- cordingly, in the absence of any other evidence to support the Trial Examiner's finding of discrimination, and assuming without deciding that a finding of accretion could have supported the finding of dis- crimination, we find that the Respondent did not violate Section 8(a) (3) of the Act in relation to the initial staffing of the new ware- house. The record establishes that when the Respondent shut down its plant on Friday, February 27, neither the employees nor the Union were forewarned. Indeed, the Union's first knowledge of the action came from newspaper reporters, the following Monday, March 2. The Trial Examiner found this unilateral shutdown a violation of Section 8(a) (5) and (1) of the Act. However, as mentioned above, he recommended that no order be issued due to the concededly non- discriminatory motive for the shutdown, the absence of any nearby operation of the Respondent and attendant lack of situs of an unfair labor practice, and the absence of a contention by the Union that it represents employees of the Respondent at its other locations. Due to those precise considerations we find no necessity to determine whether or not Respondent's shutdown of the plant constituted a violation of the Act. Moreover, assuming without finding, that the shutdown violated Section 8(a) (5), we would enter no order in the absence of exceptions to the Trial Examiner's recommendation that no order be entered. Member Jenkins does not agree that the Board should not determine this issue for the reasons expressed above, but solely because no exceptions were taken to this recommendation of the Trial Examiner, and for this reason only, refrains from deciding this question. [The Board dismissed the complaint.] MEMBER FANNING took no part in the consideration of the above Decision and Order. e Esso Standard Oral Company, 124 NLRB 1383; cf. Shea Chemical Corporation, 121 NLRB 1027, 1029. 9 See Shea Chemical Corporation, supra INTERMEDIATE REPORT STATEMENT OF THE CASE The issues on this case are whether Respondent Essex Wire Corporation (1) refused on and after February 5, 1959, to bargain in good faith with United Steel ESSEX WIRE CORPORATION 455 Workers of America, AFL-CIO, herein called the Union, as the statutory repre- sentative of Respondent's employees in an appropriate bargaining unit at its Birming- ham, Alabama, plant, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, by unilateral termina- tion of a majority of its employees in said unit, by refusing to bargain with the Union regarding employees in a separate warehouse, in Birmingham, by assisting and contributing support to Local 612, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Teamsters, through recognizing, bargaining, and making a collective-bargaining agreement with the Teamsters as the representative of the employees in said warehouse; (2) in its dealings with the Teamsters also violated Section 8(a)(2) of the Act; and (3) on or about February 5, 1959, failed and refused to staff its separate warehouse with employees in the unit aforesaid in order to discourage membership in the Union, in violation of Section 8(a)(1) and (3) of the Act. These issues arise on an amended complaint issued September 3, 1959, and further amended on October 28, 1959, and answers of Respondent admitting certain jurisdictional and other facts but denying the com- mission of any unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Birmingham, Alabama, on November 17 and December 1 and 2, 1959, in which all parties participated through counsel. At the close of the hearing all parties waived oral argument, but written briefs have been filed by General Counsel and Respondent. Motions of the Respondent at the close of the hearing to dismiss the amended complaint on the merits are disposed of by the findings and conclusions in this report.1 FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Michigan corporation with its principal office and place of business at Fort Wayne, Indiana, and is engaged in the manufacture, sale, and distribution of electrical wire and other electrical products. At all times material herein, it operated in Birmingham, Alabama, a branch production plant known as the Paranite Wire and Cable Division, and at certain times in 1959 it operated a separately located warehouse in the same city, which will be discussed below. These are the only facilities involved in this case. During the calendar year 1958 Respondent sold and shipped directly from its Birmingham, Alabama, facilities directly to customers located outside the State of Alabama products valued in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act, each of which admits to 'membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Background events and history In May 1952, in Case No. 10-RC-1820 (not published in NLRB volumes), the Union was certified by the Board as statutory bargaining agent for employees at the Birmingham plant in an appropriate unit consisting of all production and main- tenance employees, excluding office and clerical employees, watchmen, guards, pro- fessional employees, supervisors, and foremen. In March 1956, Respondent and Local 4772 of the Union executed a collective-bargaining contract covering all employees in that unit, which was to remain in effect until March 22, 1959, and from year to year thereafter unless terminated by either party upon 60 days' notice prior to the anniversary date. From early 1957 and up to March 29, 1959, Respondent operated a large ware- house and regional distribution center, covering about 150,000 square feet of space, as an integral part of the Birmingham plant. Approximately 25 employees worked in the warehouse, performing the usual warehouse duties of handling, shipping, and receiving of raw material and finished products, stockkeeping on all goods, handling all bookkeeping and paperwork in connection therewith, operating all warehouse and material handling equipment, making local deliveries, and taking care of general 'After the hearing closed , the parties stipulated certain changes in the record I have received the formal stipulation and admitted it as a formal exhibit in the record as Respondent's Exhibit No. 15. The record is hereby amended in accordance with the stipulation. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse maintenance. These employees were all in the appropriate unit aforesaid, and their work fell within four or five job classifications covered by the 1956 contract. On or about January 14, 1959, Respondent gave the requisite notice of termination of the 1956 contract and thereafter Respondent and the Union held bargaining meetings on the following dates in 1959: February 5, 6, 10, 16, 19, 20, 23, and 24; March 20, 21, 25, and 30; and June 25. In late 1958 or early 1959, Respondent leased 40,000 square feet of warehouse storage space in a plant located at 3219 11th Avenue North, Birmingham, Alabama? Respondent began active operation of the new warehouse on February 4, 1959, and on February 6 hired six warehousemen to staff it. They performed the same ware- house duties as employees in the old plant warehouse, except that they did not handle large special order items made at the plant and shipped directly therefrom to public utility customers. On February 9, 1959, the Teamsters filed a petition with the Board in Case No. 10-RC-4310 seeking certification as the bargaining agent of employees at the new warehouse. Pursuant to a stipulation for certification upon consent election executed on February 12, 1959, by the Teamsters and an official of the Paranite Wire and Cable Division, an election was held on February 20, 1959, in which all eligible employees voted for the Teamsters, and on March 3, 1959, a certification of that labor organization in the usual form was issued by the acting Regional Director for the Tenth Region. On March 9, 1959, Paranite Wire and Cable Division of Respondent executed a collective-bargaining agreement with the Teamsters, covering the shipping and receiving clerks, warehousemen, and checkers employed at the new warehouse, and pursuant thereto Respondent began to pay those employees at the rate of $2.01 per hour, effective March 11, 1959. On April 25, 1959, the Union moved to set aside the certification, and after notice to all parties, the Board on June 15, 1959, vacated the certification and set aside the election.3 B. Negotiations with the Union During the events described below, Donald Carpenter was manager, and Edward M. Kallanevich was assistant manager and personnel director, at the Birmingham plant. The duties of Kallanevich included negotiation of grievances and contracts with the Union up to February 27, 1959; after that date Carpenter was transferred elsewhere, and Kallanevich was made manager of the plant, with all the responsi- bilities of that position in addition to his previous duties. Wesley A. Wildman, an attorney on Respondent's legal staff at Fort Wayne, also participated in some of the bargaining sessions, as noted hereafter. Sometime in December 1958, employees at the plant learned that Respondent was preparing to open the new warehouse mentioned above, and asked Kallanevich how Respondent would staff that operation. Kallanevich replied that he had no control over it. At a grievance meeting held shortly thereafter between the union grievance committee and Carpenter and Kallanevich, in response to an inquiry from Bruce Thrasher, local representative of the Union, Carpenter admitted that Respondent was acquiring additional warehouse space because of the expansion of its business and the necessity of servicing its southeastern distributors properly. Thrasher told Carpenter that he considered the new warehouse and the workers to be employed in it as part of the bargaining unit represented by the Union, and suggested that Respondent hire members of the Union to staff it and thereby save itself a "lot of trouble." Carpenter and Kallanevich replied that they had nothing to do with the activities of the new warehouse and were not in a position to discuss it. Carpenter also commented that he was not in the habit of going out and signing up members for the Union, but that the Union could do so if it wanted to. Kallanevich promptly reported Thrasher's request to Frank L. Gallucci, general counsel of Respondent who was also in charge of its industrial relations staff at Fort Wayne. Gallucci told him that if Respondent were to execute an agreement with the Union incorporating the new warehouse in the existing bargaining unit, it would be illegal and might subject Respondent to liability to other unions in the area and probably to employees in the new warehouse, and that Respondent would take no part in assisting any union to become established in any location, and that any re- quest for recognition to the management of the Birmingham plant would have to be processed through the Board. 2 This warehouse will he called the "new" warehouse , or "center." to distinguish it from the warehouse space and facilities operated in the Birmingham plant , which was on 35th Avenue North, about 3 miles away 9 The above findings are based on documentary , stipulated , and other uncontradicted proof. ESSEX WIRE CORPORATION 457 At the first bargaining meeting of February 5, 1959, when the Union presented its contract proposals, Thrasher advised the company representatives (Carpenter, Kal- lanevich, and Wildman) that the Union was interested in representing employees in the new warehouse, that it considered them within the existing bargaining unit, because it felt that was an additional warehousing operation coming within the existing Board certification. Wildman pleaded ignorance of any new warehouse in the area, but Kallanevich admitted he had heard Respondent intended to set it up, and Carpenter said he preferred not to discuss it, as it was more important to negotiate a new contract. At the meeting of February 10, Thrasher asked the company repre- sentatives if they had changed their position about discussion of the new warehouse, and they replied that they preferred not to discuss it then, but to hold that in abey- ance, as they had more important matters to discuss in the contract negoiations, in an effort to meet the contract deadline (March 22). There was no further mention of the new warehouse at later bargaining sessions in February and up to March 21, during which period the parties tried to resolve their differences on seniority, wages, incentive programs, and other economic provi- sions. Sometime between March 9 and 21, Thrasher heard that the Teamsters repre- sented employees at the new warehouse. At the bargaining session of March 21 Wildman admitted to Thrasher that Respondent had consummated a contract with the Teamsters at that facility, but said he had no personal knowledge of what had occurred there because it had been handled out of company headquarters at Fort Wayne. Thrasher told him that the Union had been concerned about the new ware- house ever since its representatives had first brought up that subject, to which Wild- man,replied that he was sorry, but the Teamsters had the contract there. On the eve- ning of March 24, Thrasher had a private talk with Kallanevich at the plant about a grievance and the possibility of reaching an agreement the next day? In the discus- sion, in response to Thrasher's inquiry, Kallanevich admitted that he was moving towmotors and other equipment from the old to the new warehouse. Thrasher said he was disturbed by the fact that the Teamsters had a contract there, to which Kallanevich commented that he was sorry this had occurred because his relations with the Union had been good and he hoped to reach an agreement with it, but he had nothing to do with the "settlement" at the new warehouse.5 On the issue of an alleged refusal to bargain, the initial questions are (1) whether the Union made a proper and timely request to bargain as to employees in the new warehouse, and (2) whether the appropriate unit properly included employees at that location. Respondent argues that there was no proper request. Union Agent Thrasher admitted and I find that the Union never made a formal written request, his excuse being that since the Union was already certified as representative of ware- house employees in the plant, employees doing the same type of work in the new warehouse would automatically be covered because that facility was only an expan- sion of the plant warehouse. It is clear from the facts found above that Respondent was on notice from the Union in December 1958, and again at the start of the negotiations on February 5, 1959, that the Union considered operations at the new warehouse, and the workers who would perform them, as part of the existing unit represented by the Union. I consider the Union's statement of this position on the latter date, when it presented its contract proposals, as a sufficient request for recognition and bargaining with respect to any employees in the new warehouse as well as the old. The request to bargain need not be in writing nor worded precisely as a request to bargain in so many words, so long as it is made clear by implication that the Union is requesting bargaining covering a unit clearly defined 6 I therefore find that the Union made a proper request on February 5 for bargaining with respect to warehouse employees in the new warehouse as an accretion to the existing unit. Respondent's main argument is that it was not obligated to bargain with the Union about the new warehouse, because that unit was not in fact or in law a proper ac- 4 As the contract expiration date of March 22 approached without agreement on wages and other major issues, the parties agreed on March 20 to extend the provisions of the 1956 contract on a day-to-day basis while they negotiated further The extension agree- ment was signed on March 21, at which time the parties arranged for another meeting on March 25 5 The findings above are based on credible and mutually corroborative testimony of Thrasher and Kallanevich, which is also corroborated in part by that of Clyde Hayes and Walter L Breeden. Other testimony of Iallanevich at variance therewith is not credited. Neither Gallucci, Wildman, nor Carpenter testified 6 Cottage Bakers, 120 NLRB 841, 843; Traders Oil Company of Houston, 119 NLRB 746, 749, 766. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cretion to the existing bargaining unit. The new warehouse was created under the following circumstances: Prior to 1956, Respondent maintained various regional "Corporate Distribution Centers" throughout the United States which distributed stock or "catalog" items from all company mills to wholesalers and jobbers in their respective areas. The centers were separate from production plants, and were con- trolled by the officials and personnel in top management responsible for sales. One center was in Atlanta, Georgia. Late in 1956, in order to effect shipping econo- mies, the Atlanta center was closed and the operation moved to Birmingham where it was carried on in the old warehouse which was a physical adjunct to the Birming- ham plant. Thereafter, between 1956 and February 4, 1959, the Birmingham ware- house not only serviced customers in the southeast with catalog items from all mills, but also handled the shipment of the large size, special order items made by the Birmingham plant for utility companies. The whole warehouse operation was directly supervised by the production people who ran the plant. As they were mainly concerned with proper servicing of the utility customers, who took the bulk of the plant's production, the more detailed servicing of jobbers and wholesalers in the region on small, catalog items suffered. Hence, Respondent's "Sales" people were allowed in 1958 to investigate the feasibility of establishing a separate south- eastern distribution center. They were not permitted to move the center back to Atlanta, as they desired, but Respondent decided in 1958 to handle the distribution of catalog items in a separate distribution center in Birmingham which, while en- tailing double handling of catalog items made in Birmingham, would still permit transportation economies and at the same time enable the "Sales" organization to run the operation and give proper service to regional customers. The new center would thus distribute catalog items coming from all of Respondent's plants, including Birmingham, but would not handle the large special order items for utilities, which would still be shipped directly as before through the old warehouse to those cus- tomers. The objective of better sales and service was implemented by staffing the new center with experienced sales-service personnel brought directly from Fort Wayne, and placing its operation under an official in charge of all Respondent's warehouse operations who, in turn, reported directly to the company vice president in charge of sales. From its inception and up to the shutdown of the plant on February 27, the center was operated with leased materials-handling equipment; no such equipment was transferred from the old to the new warehouse until after that date. The operation of the new center did not significantly change the scope or nature of the work at the old warehouse; the volume of materials handled there was reduced by no more than 5 to 10 percent; there was no reduction in the old warehouse staff, who continued to handle all the output of the plant. After the February 27 shut- down of the plant, the center continued to distribute catalog items from all other mills, like any other regional distribution center, until it was closed and the operation moved back to Atlanta On these facts, Respondent argues that the new warehouse was conceived and in fact operated as a separate facility, and was not an expansion of the old warehouse at the plant. As against these factors, the record shows that: Prior to its opening, Respondent advised the Union in 1958 that the new warehouse would add needed space for handling of products processed through the old warehouse. In January 1959, the Wire and Cable Division notified its regional customers that the "new sales office and regional warehouse" would be "in addition to our present factory warehousing facilities at the North Birmingham plant." This notice significantly indicated that the new facility would operate as an apparent part of the Wire and Cable Division. and not as an autonomous entity answerable only to Respondent at Fort Wayne? Ware- housemen at the new center performed the same duties, had the same job classi- fications, and received substantially the same actual pay as those at the old ware- house. They handled the same catalog items and products as workers at the old warehouse, with the exception of special order utility company items. In this respect, the center performed the same function as the old warehouse, and became only an added step in the process of distribution of catalog items made at Birming- ham to buyers in the southeast. One Olen D. Skipper, formerly a production control supervisor in the Birmingham plant, assisted in the planning of the new facility; and while he became Respondent's overall manager of warehousing during the operation of the center, he was still "administratively" in the Wire and Cable Division of Re- 7 The interdependence of the old and new warehouses is also shown by the uncontra- dicted testimony of John W. Stewart, Respondent's vice president in charge of sales, to the effect that, since the new warehouse was less than one-third the size of the old ware- house, and in order not to confuse its customers, Respondent had to point out to them that "we still bad the plant warehouse here backing up this regional distribution center." ESSEX WIRE CORPORATION 459 spondent, which controlled production at Birmingham and similar facilities. From April 1959, until it was closed, the center was managed by one Robert Jones, formerly a production control supervisor at the Birmingham plant. Finally, after the Board in June voided its certification of the Teamsters covering the center, the Union picketed the plant and the center, preventing Respondent from moving stock and equipment between them and from removing equipment at the plant. Respond- ent and the Union then resumed negotiations, and on June 25, 1959, executed an "interim" agreement for the plant and warehouse operations at both old and new warehouses, under the terms of which Respondent recognized the Union as collective- bargaining agent for all production and maintenance employees as set forth in the 1956 agreement "for all operations of the Company in, or to be had in, the Birming- ham, Jefferson County, Alabama, area," and agreed that any work at both ware- houses would be covered by the "interim" agreement, as well as applicable terms of the 1956 contract. In accordance with this agreement, Respondent terminated the six employees, members of the Teamsters, at the center,8 and on June 26 resumed operations there with the oldest employees with warehousing classifications listed on the seniority roster set up under the 1956 contract. These employees worked at the center, transferring stock back to the old warehouse, until the center was closed permanently on July 31, 1959, when they returned to work at the old warehouse, where they were employed until that operation was closed completely on Novem- ber 25, 1959. Under the interim agreement, warehousemen at both locations were paid $2.01 an hour, and the lead checker, $2.11 an hour, the same rates which had been paid under the Teamsters' contract. Considering all the above factors, pro and con, it appears that although the new center was conceived with the idea of promoting better distribution and service on catalog items to regional customers, and for that purpose its operation was placed under the supervision of officials in charge of warehousing and sales functions of of Respondent, the salient facts are that (1) both the Union and Respondent's customers were advised that the facility would be an addition to or expansion of existing warehouse facilities which clearly came within the purview of the 1956 contract, (2) the job classifications, pay, duties, and equipment of employees in both warehouses were substantially the same and in large part interchangeable, (3) both warehouses handled the same type of catalog items, (4) both the Birmingham plant and the new center continued under the same centralized legal and labor relations control,9 (5) so far as the buying public was concerned, the new warehouse was advertised as being part of the Paranite Wire and Cable Division, which controlled the plant and old warehouse, and (6) in the agreement of June 25, 1959, Respond- ent finally agreed to integrate both warehouses as to rates of pay, wages, hours, and conditions of employment. On these factors, I conclude that the employees at the new warehouse constituted an accretion to the existing production and maintenance unit.io Respondent also makes much of the admitted fact that during the negotiations in March, the Union accepted without change the "Intention" clause (article I) of the 1956 contract, which provided that the term "Employees" included "all production and maintenance employees at the North Birmingham Alabama plant-for whom the Union was certified by the National Labor Relations Board" (with certain ex- clusions not in question). The argument is that the Union thereby accepted for the term of any new contract the existing unit covering only the plant and old warehouse, 8 After the Board voided the Teamsters' certification, that labor organization at first insisted their contract at the new warehouse was valid, but abandoned its claim and made no attempt to enforce the contract after Respondent advised that the new warehouse would eventually be closed. 9 The record shows that • Frank L Gallucci and Wesley A Wildman were the only attorneys in Respondent's organization who handle its labor relations. Gallucci, who is Wildman's superior, advised Kallanevich in December 1958, on Respondent's policy with respect to the demand by the Union for recognition in the new warehouse, as found above, and he likewise negotiated and executed the contract with the Teamsters for the Paranite Wire and Cable Division, which has no separate legal or industrial relations counsel, and relies on Gallucci and Wildman in that respect. 10Dorp-Warner Corporation, 113 NLRB 152, 154, enfd. 231 F 2d 237 (CA 7), cert denied 352 U S. 908; Hudson Pulp and Paper Corporation, Tissue Division, 117 NLRB 416; and compare Broderick Wood Products Company, 118 NLRB 38, 52, 53, and J W. Rex Company, 115 N7 RB 775, 777. I have considered The Dayton Rubber Manufacturing Company, 107 NLRB 1242, and Lsbbey-Owens-Ford Glass Company, 41 NLRB 574, cited by Respondent, and conclude that they are inapplicable because they involved facts and circumstances far different from those at bar. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in effect waived its right to representation in the new warehouse . I consider the argument without merit. Waiver is usually a conclusion of fact to be drawn from other facts and surrounding circumstances, and here there are other facts which persuasively indicate that the Union's acceptance of the "Intention" clause was induced by Respondent's conduct in the negotiations. The record shows that when- ever the Union mentioned the new warehouse in negotiations in February, the company representatives evaded discussion of it by pleading ignorance of the situation there and urging that the subject be held in abeyance, arguing that settlement of a new plant contract was far more important. This was undoubtedly an effective plea, because I am sure the Union was primarily concerned with keeping the plant in operation in order to avoid further layoffs and possible loss of jobs of up to 200 employees, as against which prospect the franking of 6 new jobs into the unit was a relatively minor matter which the Union was probably content to shelve for the time being, in order to concentrate on the plant contract, especially where the com- pany representatives only pleaded that talk about the new facility be put off, and did not flatly rule it out of the negotiations. Further, I find from the testimony of Thrasher and Kallanevich that the Union knew Kallanevich was trying earnestly to work out a contract which would permit continuation of the plant, and on the basis of past harmonious dealings with Respondent Thrasher did not consider it necessary to formalize his demands or take a "hard-nose" attitude about the new warehouse. In these circumstances , I am convinced the Union was led by Respondent 's pleas to believe that discussion of the new warehouse would come up later, and would not be rejected flatly. It discovered that it was wrong in this belief in March, when the company representatives indicated such discussion would be futile because the Teamsters already had the contract for the new warehouse. In these circumstances, I consider any waiver implicit in the Union's conduct was substantially induced by Respondent's evasive and dilatory conduct during negotiations. Finally, any im- plied waiver was negated when the Union militantly reasserted its demands about the new warehouse in June during resumed negotiations which resulted in a new con- tract covering that facility as well as the plant. I therefore find that from February 4, 1959, onward, all production and main- tenance employees at Respondent 's Birmingham , Alabama, plant, including all ware- house employees located at its separate warehouse in Birmingham, Alabama, de- scribed above, and excluding office and clerical employees, watchmen, guards, professional employees , supervisors, and foremen , constituted a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. At the time of its request of February 5 for bargaining with regard to employees in both warehouses, the Union already represented about 200 employees in the bargaining unit set forth in its certification and the 1956 contract, including 25 ware- housemen employed in the old warehouse. As the new warehouse was never staffed with more than six warehousemen, it follows that the Union continued on and after February 5 to be the bargaining representative of a majority of all employees in the expanded bargaining unit found above. Having found that the Union made a proper request to Respondent for collective bargaining with regard to employment of workers at the new warehouse , which was a proper accretion to the existing bargaining unit, and that the Union was at the time the majority representative of employees in the expanded appropriate unit, it follows that Respondent was obligated to bargain with the Union regarding wages, hours, and working conditions in the expanded unit from and after February 5, 1959. The conversations between the parties on that subject during negotiations in Febru- ary and March outlined above make it clear that while Respondent never questioned the Union's right to bring up that subject or seek to represent employees at the new warehouse , it evaded discussion of the subject whenever the Union broached it Re- spondent persisted in this attitude until it resumed contract negotiations with the Union in June, and executed the interim agreement of June 25 , 1959, covering all warehousing operations and employees at both warehouses. I therefore find that by its failure and refusal to negotiate with the Union about the new warehouse be- tween February 5 and the date in June that it resumed negotiations with the Union, Respondent failed and refused to bargain collectively with the Union in good faith, in violation of Section 8 (a) (5) and (1) of the Act. C. The. February 27 layoff On February 27, 1959 , Respondent temporarily laid off a majority of employees employed at the Birmingham plant, without prior consultation or bargaining with the Union, which learned about it for the first time on March 2, 1959. Respondent defends its unilateral action solely on the ground that it was motivated by economic circumstances which had arisen long before the bargaining sessions of 1959. The ESSEX WIRE CORPORATION 461 record clearly shows, and I find, that: During 1958 the cost of production at Birming- ham had increased until Respondent had difficulty in selling the major production items from that mill at a profit. Management began studying the operation to find ways of raising efficiency and lowering costs. The mill's competitive position became worse in late 1958 and early 1959 because efficiency had dropped off more, and top management decided about the end of 1958 to start closing down the operation. Layoffs of small groups of employees began in January and February, and culminated in the mass layoff of February 27. However, Respondent continued negotiations with the Union in March in an effort to resolve disputes about wages, certain work practices recognized in the existing contract," and other economic conditions, in such fashion that the plant might resume operation at a profit. During negotiations, the parties extended the existing contract on a day-to-day basis, but could not reach agreement on major issues, and Respondent shut down the plant completely on March 29, and terminated the remaining employees on the 30th, after an abortive final meeting with the Union.12 At the same time it terminated the extension agree- ment with the Union. Respondent argues that in view of the prior economic basis and motivation of the mass layoff and permanent closing of the plant, there was no violation of the Act in failing to notify or consult the Union about the layoff, citing Mount Hope Finishing Company v. N.L.R.B., 211 F. 2d 365 (C.A. 4), and Seaboard Packing Company, 107 NLRB 1295. It is true, like the fact noted in the Mount Hope case, that the economic justification for the layoff and shutdown had its inception in events which antedated the 1959 bargaining with the Union, and in this respect the motivation for these actions was legitimate . In fact, General Counsel does not contend that the February 27 layoff, the permanent shutdown of the plant, or opening of the new warehouse were in themselves, individually or collectively, in violation of the Act. However, the Board has held with court approval, that an employer has a statutory duty to bargain with a certified union with respect to a proposed shutdown or removal of its plant, and the transfer of its employees to a new plant. California Footwear Company, 114 NLRB 765, enfd. as mod. in other respects 246 F. 2d 886 (C.A. 9); Industrial Fabricating, Inc., 119 NLRB 162. The mass layoff and final shutdown of the plant were bound to have an adverse effect on employees in the unit, which they were entitled to seek to avoid or mitigate by collective bargaining with their employer. Looking at the situation from Respondent's point of view, it is highly possible that discussion of the pending shutdown decision at the start if the negotia- tions might have been fruitful, for top management felt that much of the economic trouble at the plant stemmed directly from work practices sanctioned by the existing contract as noted above, and it is a reasonable assumption that the sooner that point was brought home to the Union, the better the chances would have been for ultimate alleviation of that problem. However, Kallanevich apparently informed the Union for the first time in the March meetings that Respondent had to have a "workable" contract, particularly on wages, and handling of seniority and the "bid" system, otherwise the plant could not operate, and in the last meetings in March (other than the 30th) the parties concentrated on discussions of work practices and wages, but could not reach agreement . In this period the Union, while engaging in hard bar- gaining, did not take an adamant or "hard-nosed" attitude but remained flexible on vital issues to the very end, even submitting a new proposal on job evaluations as related to wages to Kallanevich at the final meeting of March 25, which management apparently turned down. Hence, I must conclude that failure of Respondent to apprise the Union of its layoff decision, or discuss it with the Union, before the event was further evidence of bad-faith bargaining, particularly in light of its prior and continued unlawful evasion of any discussion about inclusion of the new ware- house in the existing unit. See Industrial Fabricating, Inc., supra. For these rea- sons, I do not consider the decision of the court of appeals in the Mount Hope case, or of the Board in the Seaboard Packing case, apposite or controlling on the facts here. D. The contract with the Teamsters Respondent argues that execution of a contract with the Teamsters covering only the new warehouse was not a violation of the Act, because it had a right to rely on the Board's determination of a unit limited to that facility and its certification of "The practices in question involved a "bid" system under which employees could apply for transfer to other jobs This created much "traffic" in jobs, and required constant training of workers in new jobs with loss of efficiency 12 Although production ceased on February 27, warehouse employees were retained to perform warehouse, shipping, and maintenance functions until March 29. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Teamsters as the bargaining agent for it. Ordinarily this would be true, with some exceptions not pertinent here. However, the Board has recently held that "where a Board certificate has been revoked because of a fundamental disability in the representation proceeding, and 'failure to honor' it can therefore not be charged against any party under Board precedent, such certificate is a nullity ab initio," and "it cannot serve as evidence in a subsequent complaint proceeding for any proposi- tion." Charles F. Reichert, et al., 124 NLRB 28. While the Board's order va- cating the certification does not state the reason for that action, it indicates that it was based on a consideration of motion papers filed by the Umon, and the response of the employer. The motion papers of the Union charged that the certification was obtained illegally and by fraud and without notice to the Union, and recites many of the dealings between the Union and Respondent found herein. Having these alle- gations before it, it is inferable that the Board set aside the certification because of a "fundamental disability" in the representation case.13 Hence, the case must be viewed as though the certification had never been issued. In that posture, Respond- ent began to deal with the Teamsters after it had received notice that the Union claimed bargaining rights in the new warehouse. It knew, of course, that the jobs and products handled there would be substantially the same as in the old warehouse, for whose employees the Union had long been the statutory bargaining agent by virtue of its certification and a 3-year bargaining contract, and that the new ware- house would take over some of the same functions handled in the old warehouse. Hence, the Union's request for recognition raised a real question concerning repre- sentation in the new warehouse, and when Respondent recognized and made a con- tract with the Teamsters in the face of this claim, it did so at its peril.14 And when it consented to an election in the representation case, I think it was in duty bound to apprise the Board of the Union's rival claim for recognition, especially where its counsel had already advised the managers of the Birmingham plant, after the Union's first mention of the new warehouse, that any request for recognition at that facility would have to be processed through the Board. I conclude and find that Respond- ent's recognition of and execution of a contract with the Teamsters, in the face of the Union's claim, was not only further evidence of bad-faith bargaining with the Union, but also constituted illegal support and assistance to the Teamsters, in viola- tion of Section 8(a) (1) and (2) of the Act. Brittany Dyeing and Printing Corp., 126 NLRB 785; Novak Logging Company, supra; Midwest Piping & Supply Co., Inc., 63 NLRB 1060. E. The staffing of the new warehouse I found above that, after the Union claimed recognition for the new warehouse, and tried to discuss its staffing during the negotiations, Respondent unlawfully evaded any discussion of the subject. It is also clear that Respondent hired new workers there without consulting with the Union, so that the Union had no official knowledge of the hirings until sometime in March. The 1956 contract with the. Umon contained provisions which required Respondent to post notices of all vacan- cies occurring in existing job classifications, and new jobs created, during the life of the contract, allowed employees in the certified unit to make formal application for transfers to such jobs, and required Respondent to fill such openings from among such applicants according to seniority.15 While these provisions applied in terms to the plant and old warehouse, I consider them applicable to the new warehouse operation, which was a proper accretion to the existing bargaining unit as found above. When the decision was made to open the new warehouse, Respondent knew that it would create new warehousing jobs similar to those at the old warehouse„ and as early as December 1958, it also knew that the Union and the employees at the old warehouse were interested in these jobs. It could also reasonably assume that if those openings were posted in accordance with the contract, there would be 13 Aside from this permissible inference, which bears merely on the effect of the vaca- tion order, it is not within my province in this case to determine the exact reason for the Board's action, or whether it was erroneous. Hence, I have not considered, nor do I make any findings about, the arguments in Respondent's brief addressed to the merits of the Union's motion in the representation case. 1* The substantiality of the question concerning representation existing by reason of the Union's position was not diminished by the fact that the Teamsters may have accom- panied its own request for recognition with authorization cards indicating majority status at the new warehouse, as Wildman advised the Union on March 21. Halben Chemical Co. Inc, 124 NLRB 872; Novak Logging Company, 119 NLRB 1573, 1574, 1575. ' Paragraph XI, "Application for Transfer," In 1956 contract (General Counsel's Exhibit No. 7). ESSEX WIRE CORPORATION 463 bids for transfers to the new plant, particularly since employees had freely availed themselves in the past year or so of their contract rights to bid for and transfer to other jobs.'6 Hence, I must conclude that Respondent's failure to post the new jobs. in accordance with the contract and its unilateral hiring of new employees to fill them were part and parcel of its continuing unlawful refusal to bargain with the Union with respect to the new warehouse. Its hiring of new employees there rather than availing itself of experienced employees already on its payroll in effect pre- vented at least six warehousemen at the top of the seniority list in the old warehouse from transferring to the new facility.17 Respondent offers no explanation for its failure to accede to the Union's request and afford its warehousemen a chance to transfer to the new jobs. Hence, I must conclude from the facts and circumstances outlined above, in the light of its unlawful refusal to bargain with the Union about the new warehouse, that its failure and refusal to fill the jobs with experienced employees from the bargaining unit was motivated by a desire to prevent the in- clusion of that operation in the existing bargaining unit and thus avoid the necessity of bargaining with the Union about it. While Respondent's method of staffing the new warehouse did not amount to an affirmative layoff of employees, as in Mount Hope Finishing Company, et al., 106 NLRB 480, cited by General Counsel, I con- sider it tantamount to the form of lockout of applicants for employment involved in Piasecki Aircraft Corporation, 123 NLRB 348. 1 conclude and find on all the above facts and circumstances that Respondent on February 6, 1959, failed and refused to staff the new warehouse with employees from the bargaining unit found above, and thereby discriminated against employees in said unit in regard to their hire and tenure of employment in order to discourage membership in the Union, in violation of Sec- tion 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, which occurred in connection with the operations of Respondent described in section 1, above, 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent refused to bargain in good faith with the Union by refusing to discuss with it the mass layoff of employees and shutdown 'of its plant, and the staffing of its new warehouse, and by bargaining and executing a contract with the Teamsters at the new warehouse, the normal remedy is to require that Respondent bargain collectively with the Union, upon request, on these subjects. However, the plant has been completely shut down, and the distribution facilities formerly located at the plant and new warehouse have been shifted back to their former location in Atlanta, Georgia, 150 miles away. Since November 29, 1959, Respondent has conducted no operation of any kind in Birmingham, and there is no, proof reasonably indicating that it intends to, or might, resume any operations there in the future. Hence, there is no situs of the labor dispute, nor any operating bar- gaining unit of employees, remaining in Birmingham. In addition, there is no proof that the Union or its Local 4772 claims to represent Respondent's employees at Atlanta or any other location. In these circumstances, I think an order requiring Respondent to bargain with the Union, upon request, in the event that it resumes. operations in Birmingham, would be futile, and I shall not recommend it.18 to Kallanevich testified credibly that the employees' constant use of this right, with the resultant traffic in jobs in the plant, and its effect on efficiency, was one of the problems which had plagued Respondent during 1958, and the solution of it became a major issue in the 1959 negotiations. "The record shows that these were Clyde Hayes, Walter L. Breeden, Fulton Walker; Robert Byrnes, James Mooskey, and Curtis Bond, all of whom were permanently termi- nated on March 30, 1959. While there Is no proof that these employees would have sought transfers under the contract on or about February 6, when the new jobs were filled, I must assume that they would have done so, if aware of the openings, when they were terminated on March 30. These six were in fact brought back to work on a seniority basis at the new warehouse on June 26, 1959, after negotiations with the Union. sa Cf. Consumers Gasoline Stations, 126 NLRB 1041. This Is not a case of a "runaway., shop" which would justify a contingent bargaining order, as where the employer tempo- 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since Respondent rendered unlawful assistance and support to the Teamsters b3 bargaining and signing a contract with that organization, I shall recommend that it be ordered to withdraw and withhold all recognition from that organization as collective-bargaining representative for any of its employees in the Birmingham, Alabama, area, and to cease giving any effect to its contract of March 9, 1959, with that labor organization, or to renewal, extension, modification, or supplement thereto, unless and until that labor organization is properly certified in Board proceedings. I have found that Respondent discriminated against six employees named above by its failure to notify them or the Union of vacancies at the new warehouse, thus preventing them from applying for transfer to those jobs, if they so desired. As the plant and new warehouse have been closed permanently, and there is no prospect that Respondent will resume similar operations in Birmingham in the future, I shall not recommend the remedy of immediate reinstatement; and since the permanent shutdown was not a violation of the Act, I shall not recommend that Respondent set up a preferential hiring list, or notify the Union or its former employees of the existence of that list, or offer them reinstatement in the event that it resumes opera- tions in that city.19 However, I shall recommend that Respondent be required to make the six named employees whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages, absent the discrimination, from March 30 to June 26, 1959, the date when they were reinstated in jobs at the new warehouse, less their net earnings in said period. The backpay shall be computed in accordance with the Board's formula set out in F. W. Wool- worth Company, 90 NLRB 289. I shall also recommend that Respondent make available, upon request, to the Board and its agents all payroll and other records pertinent to the computation of the amount of backpay due. There being no plant in operation in Birmingham, the customary remedy of posting notices in the plant would be inadequate to inform all affected parties of the terms of the Board's Order. Hence, I shall recommend that Respondent mail copies of the notice to the Union, the Teamsters, and to each of the above-named employees. See Barbers Iron Foundry, supra. In view of the variety and seriousness of the unfair labor practices found herein, I shall also recommend the issuance of a broad cease-and-desist order. On the basis of the foregoing findings of fact, and on the entire record herein, I make the following: CONCLUSIONS OF LAW 1. The Union and the Teamsters are labor organizations within the meaning of Section 2 (5) of the Act. 2. At all times mentioned in this report, all production and maintenance employ- ees at Respondent's Birmingham, Alabama, plant, including all warehouse employees located at its separate warehouse in that city, but excluding office and clerical employees, watchmen, guards, professional employees, supervisors, and foremen, constituted a unit appropriate for purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 3. The Union was on February 5, 1959, and at all material times thereafter, the exclusive representative of all employees in said unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with the Union as the exclusive representative of employees in said unit to the extent set forth above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By bargaining and executing a collective-bargaining contract with the Team- sters in the face of the Union's claim for bargaining and recognition for employees in the unit aforesaid, thereby giving assistance and support to the Teamsters, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 6. By discriminating in regard to the hire and tenure of employment of Clyde Haves, Walter L. Breeden, Fulton Walker, Robert Byrnes, James Mooskey, and Curtis Bond, thereby discouraging membership in the Union, Respondent has engaged rarily or permanently shut down or moved its plant, in part or in whole, for discrimina- tory reasons (see Rudy Barber et al, d/h/a Barbers Iron Foundry, 126 NLRB 30), or changed or reduced its operations to avoid bargaining with a union, but still continued its operations in some form in the same location, as in Bonnie Lass Knitting Mills, Inc., 126 NLRB 1396. 11 Cf Bonnie Lass Knitting Mills, supra, and Barbers Iron Foundry, supra JAXTON MANUFACTURING CORPORATION 465 in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the foregoing conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. 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.] Jaxton Manufacturing Corporation and United Brotherhood of Carpenters and Joiners of America, AFL-CIO.' Case No. 3-CA-1426.2 February 17, 1961 DECISION AND ORDER On June 7, 1960, Trial Examiner George J. Bott issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto, and finding that it had not engaged in certain other unfair labor practices and recommending dismissal of the complaint pertaining thereto. Thereafter the Respondent filed ,exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Kimball]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications and additions : 1. Barrows, Ball, Sweet, Pedersen, and Twiss: We agree with the Trial Examiner that the Respondent had knowledge of the attempted attendance at a union meeting of Barrows, Ball, Sweet, Pedersen, and Twiss and that they were discharged because of that activity. We further agree with the Trial Examiner that the alleged "readjust- ment" and attendant reduction in the work force, and the claimed temporary status of Twiss, propounded as defenses by the Respondent, are mere pretexts. 1 Hereinafter referred to as the Union 2 This case was originally docketed as Case No. 2-CA-6915. 130 NLRB No. 36. 597254-61-vol 130-31