Shelly & Anderson Furniture Mfg. Co., Inc.

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner therefore concludes and finds that by adopting and entering into the above-described contract containing the union-security clause at a time when Local 102 was not the validly designated majority representative of his em- ployees, Luft gave substantial assistance and support to a labor organization and discriminated in regard to terms and conditions of employment to encourage mem- bership in a labor organization . By such conduct, by personally threatening his employees with dismissal, and by permitting a representative of Local 102 to do likewise, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 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 the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- live action designed to effectuate the policies of the Act. It will be recommended that the Respondent cease and desist from giving any force or effect to the above-described contract. However, nothing herein shall be construed as requiring the Respondent to vary or abandon any wage , hour, seniority, or other substantive feature of its relations with such employees which it has estab- lished in the performance of this agreement . It will be further recommended that all recognition be withdrawn from Local 102 by this Respondent , as the representa- tive of any of its employees for the purposes of collective bargaining, unless and until the said labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board -conducted election among the Respondent's ,employees.' Upon the basis of the foregoing findings and conclusions of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 102, Cloak & Dress Drivers and Helpers Union, International Ladies Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By recognizing the above-named labor organization as sole bargaining repre- sentative of the Respondent's driver and helper employees, and entering into a con- tract with said labor organization making membership therein an employment re- quirement, at a time when said labor organization did not enjoy majority status, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(3), (2),and ( 1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 1 Bernhard-Altmann Tewas Corporation, 122 NLRB 1289. Shelly & Anderson Furniture Mfg. Co., Inc. and Upholsterers Union Local No. 15-A, Upholsterers International Union of No. America, AFL-CIO. Cases Nos. 01-CA-36147 and p1-CA- 3860. February 08, 1961 DECISION AND ORDER On May 4, 1960, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the 130 NLRB No. 86. SHELLY & ANDERSON FURNITURE MFG. CO., INC. 745 Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case including the Intermediate Report, the exceptions, and the briefs. The Board finds merit in the Respondent's exceptions and therefore adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. In September 1958, the Respondent recognized Upholsterers Union Local No. 15-A, which had demonstrated its majority through a card check conducted by an impartial third party. The Respondent and Union thereupon entered into a bargaining agreement for the period to June 1, 1959, with provision for renewal thereafter. In March 1959, the Respondent served timely notice on the Union that it would not permit automatic renewal of the agreement, and on April 20, the Union presented the draft of a proposed new agreement to the Re- spondent's vice president. The parties did not meet before the con- tract expired on June 1, although there were a number of telephone conversations between representatives of the Respondent and the Union about arranging such a meeting. On May 26, the Respondent informed the Union that it had retained a Mrs. Selvin as its labor relations consultant and suggested that the Union call her. No meet- ing was arranged and on June 2 the Employer filed a representation petition for the recognized unit. Notwithstanding its petition, the, Employer was willing to meet with the union negotiators, and at least one such meeting took place on June 15. The Union then took the position that there could be no further negotiations unless the petition were withdrawn, and that if it were not withdrawn the employees would go out on strike. The Employer refused to withdraw its peti- tion, and on June 18 the employees struck. The Trial Examiner found, in these circumstances, that the Em- ployer has refused to bargain in violation of Section 8(a) (5) of the 11n its exceptions , the General Counsel contends that antiunion sentiments expressed by some employees, whom the Trial Examiner found not to be supervisors, are nevertheless attributable to the Employer. We find no merit in this contention as the record fails to show that the Employer in any way authorized or ratified such remarks . Page Boy Company, Inc., 107 NLRB 126, 130 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act beginning on April 20, 1959. He also found that the strike was precipitated and prolonged by the refusal to bargain, and that the Employer had therefore violated Section 8(a) (3) when it refused to reinstate the strikers whom it had permanently replaced. In finding these violations, the Trial Examiner rejected the Respondent's stated ground for filing a petition, that it had a reasonable doubt as to the Union's majority status. He concluded that the Respondent did not in fact have a good-faith doubt, and that the absence of this element was conclusive evidence that the Respondent had unlawfully refused to bargain with the Union. We do not agree with the Trial Examiner's theory of the case. An employer may file a representation petition at an appropriate time, so as to determine whether a recognized union continues to enjoy the status of a majority representative. Certainly, if the Respondent had filed its petition in March, before the 60-day insulation period pre- ceding the expiration date of the contract, and the Union had not dis- claimed its status as majority representative, a question concerning representation would have been presented .2 In such a case, it would have been beyond the Board's province to pass on the Employer's motivation for filing its petition.' Even if the Employer did not have a good-faith doubt of the Union's continued majority, its petition would have been justified either on the ground that it was faced with a demand for continued recognition, or that it preferred to deal with a certified bargaining representative. During the insulation period beginning on April 1, 1959, when the then current contract would have barred a petition, the Respondent continued under an obligation to meet and negotiate in good faith with the Union in an effort to reach a new agreement. The Trial Examiner has not found that Respondent failed to live up to this obli- gation, nor do the facts indicate otherwise. The Union first presented its proposed agreement on April 20, and although the Union at- tempted to arrange negotiation meetings thereafter, we are satisfied that the Respondent's failure to do so was not for the purpose of ulti- mately evading its bargaining obligations. After June 1, when the agreement expired, the Respondent was again free to file a representa- tion petition since the Union still demanded continued recognition. The fact that the Respondent filed its petition after the expiration of the agreement does not convert its conduct between April 20 and June 1 into an unlawful refusal to bargain. In deciding whether the filing of a petition at an appropriate time constitutes a violation of Section 8(a) (5), we do not consider as a rele- vant issue whether Respondent "honestly" concluded that the disaffec- 2 The Mastic Tile Corporation of America, 122 NLRB 1528 , footnote 2 a Westinghouse Electric Corporation, X-Ray and Inddrstrial Electronics Division, 129 NLRB 846. SHELLY & ANDERSON FURNITURE MFG. CO., INC. 747 tion with the Union which had been reported to it had, in fact, dissipated its previous majority. The essential elements are that the petition was filed at an appropriate time; that neither before nor after such filing did the Respondent fail to meet its obligation to bargain with the Union; and that it never attempted to use such delay as did occur for the purpose of undermining the Union's status. As we are finding that the Employer's conduct does not establish that it had a fixed purpose against reaching an agreement with the Union, we also find that the strike, which followed the Union's demand for a withdrawal of the petition, was not an unfair labor practice strike. It follows that the Employer did not violate Section 8(a) (3) of the Act when it refused to reinstate those strikers who had been permanently replaced. As we have found that the Employer engaged in no unfair labor practices, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER FANNING, dissenting : I am impelled to disagree with the majority's decision to reverse the Trial Examiner's unfair labor practice findings in this case. A contract between the Respondent and the Union was effective until June 1, 1959. In March 1959, the Respondent prevented the contract's automatic renewal, and on April 20 the Union submitted a new contract to the Respondent's vice president, Anderson, who agreed to contact the Union. When the Respondent failed to reply, the Union called Anderson and was told that Shellenberger, the Respondent's president, was out of town. Following this communi- cation, the Union called the Respondent several times in the follow- ing weeks, although Shellenberger had returned, without arranging a meeting. On May 26, when the Union called, it was told to contact a labor relations consultant who had been retained by the Respondent. The contract expired June 1, 1959, and the Respondent's representa- tive filed a representation petition on June 2. On June 10 the Re- spondent, without consulting the Union, arranged for a new carrier for the employees' health insurance and told employees that they were getting better coverage than that provided under the union plan. Under the new plan the Respondent bears the entire cost, whereas under the union plan the employees paid their own premiums. On June 10, the Respondent's officials met with the union steward to dis- cuss piecework costs and were told that if the Respondent would withdraw the petition, get rid of its representative, and sign a con- tract, piecework rates could be taken care of. On June 15, at a meet- ing of union representatives and Respondent's officials, piecework rates and insurance were mentioned, but the Union took the position that the petition precluded any negotiations and that the employees 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would strike unless the petition was withdrawn. On June 18, 18 of the 28 employees struck. The Board has frequently held that if an employer is motivated by a desire to evade bargaining or to gain time to undermine the union, insistence upon an election is unlawful (Irving Taitel et al. d/b/a I. Taitel & Son, 119 NLRB 910 at 912), and that the question of em- ployer good faith is a "question which must be determined by all the facts and circumstances of a given case, by the entire pattern of con- duct, and not by isolated incidents." (Traders Oil Company of Hous- ton, 119 NLRB 746). Moreover, in Louis Aiello et al. d/b/a Aiello Dairy Farms, 110 NLRB 1365, 1368, the Board established a policy that, if an employer engaging in a bad-faith refusal to bargain de- mands an election, the union has the choice of either filing a charge or submitting to an election. If it chooses the latter and loses, it is precluded from pursuing the 8 (a) (5) charge. In the present case, from April 20 through June 18, the Respondent had not expressed any doubt as to the Union's majority status and then, as soon as the contract expired, it filed a representation petition. That it did not question the Union's majority status by the filing of the petition is evident by the fact that it thereafter met with the Union. Under these circumstances, the filing of the petition did not create a doubt as to the majority status of the Union, nor did it indi- cate that Respondent had such a doubt. On the contrary the filing of this petition was designed further to delay bargaining and to create confusion among the Respondent's employees, a majority of whom were union members. Thus, the filing of a petition was part of the pattern of the Respondent's unfair labor practices, which included dilatory tactics and the unilateral granting of insurance benefits, and must be viewed as such. The Board should not permit its processes to be used in furtherance of any party's unfair labor practices. Accordingly, I would affirm the Trial Examiner's finding that the Respondent engaged in violation of 8 (a) (5) and (1) of the Act, that the strike beginning on June 18, 1959, was caused and prolonged by the Respondent's unfair labor practice in refusing to bargain, and that the refusal to reinstate these unfair labor practice strikers is a violation of 8 (a) (3) and (1) of the Act. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter was tried before the duly designated Trial Examiner in Los Angeles, California, on February 23 through 26, 1960. At issue is whether Shelly & Ander- son Furniture Mfg. Co., Inc., herein called the Respondent , has unlawfully inter- fered with, restrained, and coerced its employees in the exercise of rights guaran- teed by the National Labor Relations Act, 61 Stat. 136, herein called the Act, refused unlawfully to bargain with Upholsterers Union Local No. 15-A, Uphol- sterers International Union of No. America, AFL-CIO, herein called the Union, the majority representative of Respondent 's employees in an appropriate unit, caused and prolonged a strike by means of unfair labor practices , and refused the uncon- SHELLY & ANDERSON FURNITURE MFG. CO., INC. 749 ditional offer of 18 strikers to return to work. The complaint of the General Counsel alleges that the Respondent has thus engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a California corporation with its principal office and place of business in Santa Monica, California, is engaged in the manufacture of furniture. During the 12-month period preceding the issuance of the complaint, the Respondent shipped from Santa Monica, California, to points outside that State products valued in excess of $50,000. I find that the operations of the Respondent are in and affect commerce within the meaning of Section 2(6) and (7) of the Act. U. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent. HI. THE UNFAIR LABOR PRACTICES In September 1958, the Respondent, with apparent willingness, agreed to a check of union authorization cards against payroll records to determine the status of the Union. Accepting the finding of a disinterested person that a majority of its em- ployees desired the Union as their bargaining representative, the Respondent en- tered into a contract with the Union covering all production workers. The contract expired by its terms on June 1, 1959. While it was in effect, the contract required employees after 30 days to become union members and the Respondent, upon appropriate individual assignments, to check off dues for the Union. In the fall of 1958, some employees complained of the deduction from wages of penalties for nonattendance at union meetings. Robert Anderson, Respondent's vice president and active manager, telephoned the Union in the matter. Learning that supervisors could be excused from compulsory attendance, Anderson relayed this information to Linda Monti, Frank Monti, and Donald Barber. One of them composed a letter to the Union asserting that each of them was "employed in a supervisory capacity." With the approval of Anderson the letter was typed in Respondent's office and posted to the Union. All three were thereafter permitted to absent themselves from union meetings without penalty. Linda Monti is the head cutter and patternmaker in the plant. Her work re- quires considerable skill and she receives a wage rate equal to that of the uphol- sterers. Monti denied in her testimony that she had authority to hire or discharge or effectively to recommend such action and Anderson supported her testimony in this respect. It is clear enough that Anderson gives considerable weight to Monti's evaluation of the work of other cutters and seamstresses but I am unpersuaded that she is more than Anderson described her to be-a skilled employee who has been and is used in part to train new employees and to tell Anderson what employees appear to be capable or not. On an occasion in April 1959, Monti discharged an employee who was working in her department. When this came to the attention of Anderson he reinstated the employee and told Monti that she had assumed an authority not given to her. Frank Monti is a cushion filler, a skilled occupation, and is the only one in the plant who operates the cushion filling machine. He sometimes has one or two others working with him but his position is, I am persuaded by the evidence, more accurately to be described as that of leadman rather than supervisor. Donald Barber, a springer, is in a similar situation in respect to the two or three other springers. He is possibly the most skilled of the group, able to train new employees, to evaluate the capacity and performance of the springers, and to give his judgments to Anderson. I do not find the evidence to sustain the allegation that he is a supervisor. Stanley W. Stone can best be described, I think, as the maintenance man and shipping clerk. He appears to have a multitude of duties falling roughly within the limits of those classifications. Although Stone often has assistants and perhaps can direct an employee to leave one task in order to take up another, I do not consider the evidence to establish that this is an exercise of independent judgment. Rather, it seems, he is told or knows from experience what there is for him to do and has 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authority to obtain assistance from others in the plant as he needs it. I do not find him to be a supervisor within the Act's definition. The Montis, Barber, and Stone were unsympathetic to the Union and often sug- gested to other employees that the Union be ousted. Whether they were expressing their own convictions or were saying that which they thought might bring approba- tion from their employer is unimportant. None of them is a supervisor and by opposing the Union they did not become Respondent' s agents. In March 1959, about the time that the Respondent sent notice to the Union that it did not propose to let the contract renew itself on June 1, the Union wrote saying that it would propose contract changes. On April 20, Ellis Miller, a representative of the Union, left a draft of a new agreement with Anderson. Anderson agreed to examine it and to discuss it with Miller at a later date. After several phone calls to Anderson in the following weeks, Miller was told about May 26 that Mrs. Selvin would thereafter represent the Respondent in dealings with the Union. A day or two later the Union was notified that its representatives no longer would be afforded access to the plant. On June 2, Selvin came to the plant and spoke to the employees. She told them that the contract had expired and that the Respondent had filed a petition with the Board in order that an election be conducted to determine the identity of the bar- gaining representative, if any. About June 10 the Respondent arranged with an- other carrier to continue employee insurance benefits that had been the subject of contract agreement. On June 15, Miller and Cecil Rupprecht, representing the Union, met with Shel- lenberger and Anderson at the plant. They discussed piece-rate prices and men- tioned the subject of insurance. Rupprecht said that no contract could be negoti- ated until the Respondent withdrew its representation petition. The Respondent agreed to reconsider its position and said that the Union would shortly learn whether the petition would be withdrawn. On June 17, Anderson informed Rupprecht that no decision in the matter had been reached. Rupprecht answered that strike action was likely. On the morning of June 18 a picket line was formed before the plant. In the afternoon of June 17, Selvin again spoke to the employees in the plant. She told them that she had heard rumors of a strike and that those who struck could be replaced thus losing their employment. Some witnesses for the General Counsel testified that she said that strikers would be discharged. I do not doubt that these witnesses testified truthfully to what they thought they heard but I accept Selvin's denial that she so expressed herself and find that no such threats were made. Eighteen of the twenty-eight employees struck. It is alleged that the strike was occasioned by Respondent's unlawful refusal to bargain and that the strike thus was an unfair labor practice strike. I think it beyond question that the refusal of the Respondent to withdraw its petition and to continue recognition of the Union precipitated the strike. No other issue existed between the parties at that time. Was the Respondent under an obligation to recognize the Union and to bargain with it9 It seems clear to me that the answer must be "yes." Anderson testified that in June 1959, and for some months before, he held a "good faith" doubt that a majority of the employees wanted to continue the Union as their representative. But the use of the words "good faith" works no magic. One still must examine the circumstances to discover if basis for such a doubt existed. The Union practiced a policy of assessing a $1 fine on those who did not attend certain meetings. Anderson testified that so many employees paid these fines by way of payroll deductions that he became aware that meetings were not well attended. Additionally, some employees complained to him that the upholsterers dominated the Union, members in other classifications receiving little consideration. This is just about the sum of Anderson's testimony on the point. Surely non- attendance is as consistent with complacency as with the converse. If Anderson in fact held a "good faith" doubt of the Union's status he reached that frame of mind by extremely tenuous reasoning . The evidence does not provide a rational basis for his conclusion. Of course an employer may not deprive his employees of the right to be repre- sented by an agency of their choice upon a whimsicality. Even if it be true that the circumstances coming to Anderson's attention caused him honestly to come to the con- clusion he says that he reached, it would not justify the Respondent's refusal to bar- gain. Here, the likelihood that Anderson actually believed that the Union had lost its following among Respondent's employees is slight. At no time did he mention his feeling in that respect to any representative of the Union or even to an employee. A decision of the Board (E. A. Laboratories, Inc., 80 NLRB 625, 683) referred to in the General Counsel's brief, puts the matter succinctly: SHELLY & ANDERSON FURNITURE MFG. CO., INC. 751 A good faith doubt ... must be based on something more than a mere desire to put a union to a contest of strength in the hope that it may somehow lose. Where the Union is admittedly the choice of the employees before the question is raised, there must be some evidence of disaffection brought to the employer's attention before an asserted doubt can be characterized as bona fide. Elections are held to settle questions concerning representation-to resolve real doubts, not feigned ones. That Respondent's employees in fact desired representation by the Union is evi- denced by their payment of dues in June without the compulsion of the contract and by the fact that 18 of the 28 struck to force the Respondent to continue recognition and to bargain. The complaint alleges, the answer admits, and I find that all production employees in the upholstering and allied departments of the Respondent excluding wood- workers, teamsters, office employees, and nonworking foremen constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Upon the evidence outlined above, I find that the Union was, in September 1958, and, at all times material since, has been, the exclusive representative of all the employees in the appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. I find that on April 20, 1959, and at all times thereafter, the Respondent has re- fused upon request to bargam collectively with the Union in respect to employees in the appropriate unit and that by this refusal the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (I) of the Act. I find that the strike, beginning on June 18, 1959, was caused and prolonged by the Respondent's unfair labor practices in refusing to bargain collectively with the Union. In the circumstances given, the strikers, and each of them, were entitled upon unconditional request to reinstatement, each to his former or substantially equiva- lent position. In early August 1959, according to the credited and undenied testi- mony of striker Robert Pitcher, Anderson said that the Respondent would never rehire any of the strikers. About November 11 or 12, the picketing having ceased, Herbert Cross, a striker, telephoned Anderson and asked for a job. Anderson an- swered that there were no vacancies. On November 13, striker Adolph Robbins asked Anderson for a job and received no answer. By a letter dated January 8, 1960, the Union offered unconditionally to return 17 strikers to work. The name of striker Theodore Meredith was not included in this letter. Meredith testified, as a witness on February 24, 1960, to the effect that he desired to be rehired. I find that all of the strikers, to wit: Herbert Cross on November 12, 1959; Adolph Robbins on November 13, 1959; Eleanor Brady, Ernest Brown, Donald Butts, Fred Chase, Gordon Evans, John Gaudio, Bert Gileno, Dennis Hocutt, Bill Jennings, Gordon Mackey, Robert Pitcher, Louis Prado, Jack Rutherford, Asa Stroud, and Rondall Young on January 8, 1960; and finally Theodore Meredith on February 24, 1960, have unconditionally offered to return each to his former or substantially equivalent position with the Respondent and that such offers have uniformly been ignored or rejected. I find that by refusing to rehire these unfair labor practice strikers the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of ithe 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 operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has discriminated in regard to the hire and tenure of 18 employees, it will be recommended that it offer to each of them im- mediate and full reinstatement to his former or substantially equivalent position, without prejudice to seniority and other rights and privileges previously enjoyed, and make each whole for any loss of earnings sustained by reason of the refusal of the offers to return to work by payment to each of a sum of money equal to the amount each would have earned from the date of offer to return to work to the date of 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer of reinstatement less his net earnings during this period. Backpay shall be computed in accordance with the Board's Woolworth formula.' Loss of pay shall be determined by deducting from a sum equal to that which he would have earned for each quarter or portion thereof his net earnings in other employment during that period. Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter. Having found that the Respondent has unlawfully refused to recognize or to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that the Respondent be required upon request to extend recognition to and to bargain with the Union. 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. Upholsterers Union Local No. 15-A , Upholsterers International Union of No. America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By refusing to accept the unconditional offers to return to work made by unfair labor practice strikers Herbert Cross , Adolph Robbins , Eleanor Brady, Ernest Brown, Donald Butts , Fred Chase, Gordon Evans , John Gaudio, Bert Gileno, Den- nis Hocutt, Bill Jennings, Gordon Mackey, Robert Pilcher , Louis Prado, Jack Ruth- erford, Asa Stroud, Rondall Young, and Theodore Meredith, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. All production employees in the upholstering and allied departments of the Respondent, excluding woodworkers , teamsters, office employees , and nonworking foremen, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On and since September 1958 , the Union has been and is the majority repre- sentative of the employees in the appropriate unit for purposes of collective bargain- ing in respect to rates of pay, wages , hours of employment, and other terms and conditions of employment. 5. By refusing on April 20 , 1959, and thereafter, to recognize and to bargain with the Union, 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 refusing to permit the strikers to return to work , by the refusal to bargain with the Union , and by saying that no striker would be rehired , the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guar- anteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] i F. W. Woolworth Company, 90 NLRB 289. Sheble & Wood Yarn Corp. and Textile Workers Union of America, AFL-CIO. Case No. 3-CA-1446. February °28, 1961 DECISION AND ORDER On November 21, 1960, Trial Examiner George A. Downing 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. 130 NLRB No. 61.