Exchange Parts Co.

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same interests as the employees of the other concessionaires. Ac- cordingly, we shall include them in the unit .4 The Employer would exclude the maintenance man from the unit. This employee spends most of his time cleaning up in the food depart- ment and also assists the stock clerks therein. We find that his in- terests are the same as the other food department employees. We include him. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees at the Employer's Horsham, Pennsylvania, store, including sales and stock personnel, porters, cashiers, and maintenance men, but excluding meat department employees, guards, and supervisors within the meaning of the Act.. [Text of Direction of Election omitted from publication.] ' 1Cf. -Stack & Company, 97 NLRB 1492. Exchange Parts Company and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases Nos. 16-CA-1357 and 16-RC-2637. May 26, 1961 DECISION AND ORDER On February 2, 1961, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint in Case No. 16-CA-1357 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. The Trial Examiner also sustained certain objections to the conduct of a Board-ordered election in Case No. 16-RC-2637 and recommended that the election be set aside. Thereafter, the Re- spondent filed exceptions and objections to the Intermediate Report.' 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 McCulloch and Members Leedom 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 Intermedi- 1 On March 23, 1961 , pursuant to a motion filed by the Petitioner in Case No . 16-RC-2637, the Board entered an order permitting withdrawal of the petition in that case and severing Cases Nos. 16-RC-2637 and 16-CA-1357, which had previously been consolidated. As Case No. 16-RC-2637 was thereby closed , we do not rule on any of the Respondent's exceptions and objections insofar as they relate only to Case No . 16-RC-2637. 131 NLRB No. 98. EXCHANGE PARTS COMPANY 807 ate Report, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Exchange Parts Company, Fort Worth, Texas, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act by granting them economic benefits or by changing the terms and conditions of their employment; provided, however, that nothing in this recommended order shall be construed as requiring the Respondent to vary or aban- don any economic benefit or any term or condition of employment which it has heretofore established. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, . to form labor organizations, to jour or assist International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Forth Worth, Texas, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by granting them economic benefits, or by changing the terms or conditions of their employment, provided, however, that nothing in this Decision and Order requires us to vary or abandon any economic benefit or any term or condition of employment which has heretofore been established. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. All our employees are free to become, to remain, or to refrain from becoming or remaining members of labor organization of their own choosing. EXCHANGE PARTS COMPANY, Employer. Dated---------------- By'------------------------------------- (Representative) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE The complaint duly issued on June 10, 1960, based upon charges filed by Inter- national Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, herein called the Union, alleges that Exchange Parts Company, herein called either Respondent or Company, by granting certain benefits to its em- ployees, has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. The answer denies the commission of any unfair labor practices. In the representation case, the Board entered its order dated July 11, 1960, di- recting the Regional Director to hold a hearing on specified issues raised by Peti- tioner's objections to the conduct of an election , which was held pursuant to a Decision and Direction of Eelection issued by the Board. On July 14, 1960, the Regional Director issued an order consolidating the repre- sentation and complaint cases and directing that a hearing be held on the issues raised therein at a time and place stated in the notice of hearing. Pursuant to the above order and notice, a hearing was held before the duly desig- nated Trial Examiner on September 9, 1960 , at Fort Worth, Texas. All parties were EXCHANGE PARTS COMPANY 809 present and represented at the hearing and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. The parties waived argument and thereafter the General Counsel and counsel for the Respondent filed briefs, which I have carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS The complaint alleges, and the answer admits, that the Company, a Texas corpo- ration, maintains its principal office and place of business in Fort Worth, Texas, where it is engaged in the business of rebuilding parts used in automobiles. In the 12- month period preceding the issuance of the complaint the Company purchased auto- mobile parts and equipment valued in excess of $50,000 from places outside the State of Texas, and sold and shipped automobile parts and rebuilt units valued in excess of $50,000 to points outside the State of Texas. I find the Company is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The issues The question raised by the complaint and answer is whether the Company granted certain benefits to its employees in violation of Section 8(a)(1) of the Act. In the representation case the issue is whether such conduct and a meeting of management with the employees shortly before the election affected the outcome of the election. B. Chronology of events Only two witnesses testified at the hearing, C. V. McDonald, vice president and general manager of the Company, and M. D. Townley, a company employee. There is no serious dispute concerning many of the facts and events. On November 9, 1959, the Union sent a letter to the Company stating it repre- sented a majority of the employees and requested a meeting for the purpose of dis- cussing contract terms. While McDonald admitted receiving the letter the record does not indicate whether he made any reply thereto. In any event the Union filed a representation petition on November 16. There- after a hearing was held on December 29, and on February 16, 1960, the Board issued its Decision and Direction of Election (not published in NLRB volumes). The election was held on March 18, and upon losing the election the Union filed objections to the conduct thereof. On April 26, 1960, the present charge was filed and the complaint was issued on June 10. C. The benefits granted to employees 1. The additional holiday The complaint alleges that about February 25, 1960, the Company announced that it was granting an additional holiday to the employees. McDonald testified, and his testimony is not challenged, that in 1955, the Com- pany established its first holiday and announced that a holiday would be added each year until further notice. The Company followed that policy and in 1958 the four national holidays were established as paid holidays. In the early part of 1959 Mc- Donald advised the employees that the holiday for that year would be a "floating holiday," that is, it would follow one of the regular holidays. On November 4 and 5, 1969, the Company held meetings of its employees at the plant at which time McDonald informed them that the floating holiday would be the day after Christmas. He also announced an additional floating holiday would be granted in 1960. During December 1959, the Company held its usual Christmas party at the Pioneer Palace, but McDonald made no mention of the additional float- ing holiday, as he had done in the past. McDonald explained that he was considering the employee's birthday as the additional holiday and a survey to determine how this would affect production had not been completed. Around the first of January 1960, the survey was completed and McDonald planned to have an employee "get-together" at the Pioneer Palace when he would offer their birthday as a holiday. However, 810 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Pioneer Palace was not available in January, no other suitable -place could be found, so the party or meeting was not held until February 25. At this meeting McDonald advised the employees that he would let them decide whether they desired another floating holiday or their birthday for 1960, and a majority of the employees voted in favor of the birthday holiday. This was the first time, since establishment of the holiday policy in 1955, that the employees were permitted to vote on and select the holiday they desired. McDonald admitted he told the employees that the Board in Washington had directed an election be held to determine whether the employees wished to hand over their right to speak and act for themselves. He further stated the union organizer had twisted some of the facts in his bulletins so as to put the Company in a bad light . McDonald pointed out improvements and changes made in the past year when there was no threat of a union and concluded by urging all the employees to vote in the election. Townley was present at one of the meetings in November 1959 , as well as the meeting of February 25, 1960, and testified substantially the same as McDonald con- cerning the announcement or discussion of holidays at these meetings . He was not questioned concerning McDonald 's statements regarding the election and improve- ments in working conditions. 2. The payment of holiday overtime The complaint alleges that about March 4, 1960, the Company announced a change in the method of computing overtime which resulted in financial benefits to the employees. On March 4, 1960, the Company sent a letter to all its employees with a docu- ment attached giving a resume of benefits obtained by the employees each year over a number of years. In listing the benefits granted so far in 1960, including the birth- day holiday, the document states there would be "No loss of overtime during the week- a paid holiday is given. This will mean $5.00 or $6.00 more per employee per holiday." The document, McDonald said, "is in error" for the overtime pay was granted in 1959 not in 1960. McDonald explained that in 1959 the regular workweek was extended to 491/2 hours, 51/2 days, and the Company was paying straight time for established holidays instead of considering it as time actually worked.. Sometime that year it was brought to his attention the Company was not giving a full holiday in that the employees were receiving less pay in the holiday week than if they had worked. Accordingly, McDonald posted a bulletin at the plant covering the next holiday, Saturday, July 4, which stated that in line with company policy the employees would be paid 41/2 hours for the holiday, regular or overtime in accordance with hours worked, but to qualify for holiday pay the em- ployee had to be working the day preceding and the day following the holiday. McDonald further stated due to some misunderstanding by the accounting depart- ment employees did not receive holiday pay in accordance with this policy for the remaining holidays in 1959. Shortly after Christmas McDonald learned that the holiday pay policy had not been carried out and he decided to apply the policy to future holidays. The employees were not paid for the 1959 holidays for the reason that some workers had left the Company and retroactive payments would cause con- fusion and necessitate the changing of records. 3. The change in the vacation schedule The complaint alleges that about February 13, 1960, the Company changed its vacation schedule by permitting employees to obtain an additional weekend. In the above-mentioned document of March 4, the Company announced that one of the 1960 benefits was "Vacation time extended 11/2 days." McDonald admitted the foregoing announcement and gave the following explanation for changing the va- -cation schedule. Prior to 1960 the plant was working on a 491/2-hour week and that the weekly payroll period ran from Friday to Thursday, with Friday being payday. At that time vacations commenced on Friday and ended on Thursday. In January 1960, the workweek was changed to end on Wednesday to allow the accounting de- partment the necessary time to pay the employees on Friday. Under this system vacations would start in the middle of the week, so the Company decided to change the vacation period from the payroll period to the calendar week. This resulted in the employees receiving an additional 11/2 days, the weekend, which normally was not worktime. On January 5, 1960, the Company posted a bulletin advising the -employees of the change in the payroll week but no mention was made of any change in the vacation schedule. McDonald admitted the first "general announce- ment" concerning the vacation week was made on March 4, although the employees EXCHANGE PARTS COMPANY 811 were aware of the change and one employee, who took his vacation about February 19, was informed his vacation time would be computed under the new system. Townley testified he could not definitely recall when he first heard vacation time was being extended but he did not believe it was prior to the announcement of March 4. Concluding Findings As previously stated there is no real dispute concerning the facts of the case, which I find as related above. Nor is there any question that substantial benefits were granted to the employees . In essence the General Counsel contends that the granting and timing of the announcements of these benefits during the union campaign and pending an election, irrespective of motive, constitutes a violation of the Act. In brief, the Company contends its conduct was not unlawful because the sixth holiday and holiday overtime were granted before any union activity and the change in the vacation schedule was made and actually put into effect prior to the Decision and Direction of the Board in the representation case. The record plainly shows that the sixth holiday was announced on February 25, 9 days after the decision in the representation case and that on March 4, some 2 weeks before the election , the Company sent communications to its employees stressing the benefits it had granted so far in 1960 , including the sixth holiday, holi- day overtime, and extended vacation time. While McDonald offered explanations for the Company's actions they are neither convincing nor persuasive . Thus he re- lated that although he told the employees as early as November 4 and 5 , 1959, that a floating holiday would be granted in 1960, he did not, as customary, announce the holiday at the annual Christmas party that year . This failure, McDonald attributed to the fact that a study was being made as to whether the employee's birthday should be observed as a holiday . Despite the completion of the study around the first of January 1960, McDonald decided to delay announcement of the holiday until a party could be arranged later that month. However, due to the inability to obtain a suitable place the party was not held until February 25, when announcement was made and, for the first time, the employees were permitted to vote on a choice of holidays. Frankly, I see no reason why McDonald could not have followed custom and announced the holiday at the Christmas party, or at least informed the employees the birthday holiday was then under consideration . In any event, although the birthday survey was completed around the first of January, nevertheless no declara- tion was made until the party of February 25 . Had the Company been interested in merely notifying the employees that a sixth holiday had been granted, be it a floating one or their birthday, it could have posted a ' bulletin to that effect or, sent letters to the employees as it had in the past and did thereafter. Instead , the Com- pany elected to wait until after the issuance of the Board's Decision and Direction of Election which demonstrates to me that the action was designed to interfere with, restrain, and coerce the employees in the exercise of their rights guaranteed under the Act and to influence the outcome of the election rather than any inability to find a suitable place for the party. Equally without merit is McDonald's explanation of the payment of holiday over- time. First, I fail to see how the bulletin declaring the payment of 41/2 hours at regular or overtime rates for July 4, 1959, can be construed as a statement of policy that all holidays would be paid on that basis. Concededly, the employees were not given holiday pay for the remaining four holidays in 1959. McDonald attributed this to an error in the accounting department and asserted that while he first learned of this error around Christmas no retroactive payments were made and he waited until his letter of March 4, 1960 to announce this !benefit to the employees. Mani- festly, this change became effective July 4, 1960 , or the birthday of the employee. I find it difficult to believe that had the Company established such a policy the accounting department would have failed to carry it out or that there would have been no complaints from the employees , some 285 in number, regarding their failure to receive holiday overtime until Christmas 1959. The remaining benefit pertains to the extension of the vacation schedule. While it is true the new vacation schedule gave only an extra weekend, normally unpaid time, this was a change in conditions of employment and a benefit to the employees. Admittedly, the initial general announcement of this benefit wasmade in the Com- pany's communications to the employees of March 4. McDonald sought to explain this away by stating a bulletin changing the payroll week had been posted on January 5, 1960, and in February one employee had been advised he could take his vacation under this policy. There is nothing in the January 5 bulletin indicating vacation time had been extended and I do not consider as significant the fact that at or about the time of the issuance of the Board's Decision and Direction of Election that one employee -was permitted an additional weekend on his vacation. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I view the evidence, 'McDonald's excuses are nothing more than pretexts to justify the Company's actions in announcing the granting of the foregoing benefits in order to interfere with, restrain, and coerce the employees in the exercise of their rights guaranteed under the Act and to influence the results of the election. McDonald's explanations, weighed in the most favorable light, amount to nothing more than an attempt to prove.that in announcing and granting eocnomic benefits to the employees during the course of the Union's organizing campaign, which McDonald characterized as "intensive," the Company was not motivated by any unlawful considerations. However, motive is neither controlling nor material. In American Freightways Co., Inc., 124 NLRB-146, the Board rejected the respondent's contention that economic benefits granted to employees during an organizing cam- paign were not prompted by illegal motives and stated: It is well settled that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act. Applying this test, we find that by announcing its change in overtime policy during the course of the organization campaign among office employees, the Respondent violated Section 8 (a)( I) of the Act. I conclude and find that by announcing and granting economic benefits to the employees under the circumstances found herein the Company thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) thereof. Having found that the Company engaged in conduct in violation of Section 8(a)(1), I further find that it thereby interfered with the election conducted on March 18, 1960. (Syracuse Color Press, Inc., 103 NLRB 377, 381, enfd 209 F 2d 596 (C.A. 2).) D. The representation case - The Board's order of July 11, 1960, directs that a hearing be held on the issues raised by Petitioner's objections la, 2a, 2b, 2c, and 2d as numbered in the Regional Director's report, including the circumstances under which the economic benefits were announced and granted. I have already found that the Company by announcing and granting economic benefits and by changing conditions of employment thereby engaged in conduct in violation of Section 8(a)(1) of the Act, so I recommend that objection la, which covers such benefits, be sustained. At the hearing Petitioner's representative stated he would not litigate objection 2a, which relates to a meeting held of the female employees, and 2d, which refers to separate meetings held with certain groups of employees. I recommend these objec- tions be overruled. The remaining objections, 2b and 2c, are based on separate meetings which Mc- Donald held with employees in the brake shoe department and the carburetor depart- ment shortly before the election. McDonald, as a witness for the Petitioner, testified that on March -16, 1960, the employees in the carburetor department were called to his office where he spoke to them about low production. He stated many similar meetings had been called in the preceding year for the purpose of obtaining suggestions regarding production prob- lems. McDonald said the only time the Union was mentioned was in connection with excessive talking and he warned the men there would be no talking for, or against the Union while they were working at their benches. I find McDonald's testimony, which is the only testimony on this point, is insuffi- cient to support objection 2c, so I recommend that the same be overruled. McDonald admitted he held a meeting with the brake shoe department em- ployees, totaling about 12 men, in his office the morning of March 17, 1960. The meeting was called because complaints had been received from some of the em- ployees that they had been threatened with loss of their jobs if they did not support the Union and vote for it in the coming election. McDonald warned the employees that there would be no threats either by employees in favor of the Union or by those opposed to organization. There was no other reference to the Union, except when one of the employees asked if seniority would prevail in the event of unionization of the shop. McDonald answered he did not believe in seniority because it elimi- nated employee incentive and that as a young man he had quit a railroad job because of its seniority policy. McDonald denied he interrogated any employees regarding the Union or that he touched upon the subjects of a strike or an agreement with the Union. EXCHANGE PARTS COMPANY 813 Townley was present at the meeting of March 17 and stated that at the opening thereof McDonald commented that some of the men were wearing union buttons. McDonald then asked Townley , who was wearing a union button, "What do you think that a union could give you that I don 't give you?" Townley started to explain he could obtain seniority and job rights but McDonald cut him off and addressed the same question to employee Pollard. He admitted McDonald made some reference to his experience with a union while working for a railroad but he was hazy as to just what McDonald stated. Townley further stated that McDonald went on to say he would not bargain with the. Union, that a strike was the only "weapon" available to the Union and if the employees went on strike he would replace them . Townley admitted McDonald spoke about threats being made to employees as to what would happen to them when the Union came into the shop, but, again, he could not recall the substance of his remarks . When asked if McDonald made any mention of the election , Townley replied, "Well, in a roundabout way the whole deal was union , more or less. I mean the way I could see , that was the main reason we was in there to start with." McDonald, as witness for the Company, denied that he said he would not bargain with the Union or that he stated a strike was the Union 's only "weapon" and that he would replace the employees if they went on strike. The significant phase of this meeting, as I view it, is Townley's claim McDonald said he would not bargain with the Union and his reference to a strike and replace- ment of employees if they struck the plant . McDonald flatly denied uttering any such remarks. Neither the Petitioner nor the Company offered any corroborative testimony on this disputed point . Thus, a clear question of credibility is presented. From my observation of Townley and McDonald while testifying in this matter I accept McDonald's testimony and find he did not make the statements attributed to him by Townley . I find the remaining evidence as to the occurrence at this meet- ing insufficient to support objection 2b, so I recommend the objection be overruled. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection 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 thereof. V. THE REMEDY Having found that the 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. I recommend that the Respondent cease and desist from interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed under Section 7 of the Act by granting economic benefits and by changing the terms and conditions of employment . However, nothing herein shall be construed as requiring the Respondent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established. Having found that the unlawful activities of the Respondent took place at a time when employees were being asked to indicate their free choice of a bargaining rep- resentative in an election directed by the Board, the Respondent thereby interfered with this free choice. I therefore recommend that the results of the election held on March 18, 1960, be vacated and set aside and that a new election be held at a suitable time after the effects of the unfair labor practices have been dissipated. Upon the basis of the above findings of fact, and upon the entire record. in the case, I make the following: CONCLUSIONS OF LAW 1. Exchange Parts Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By granting certain economic benefits to its employees and by changing certain terms and conditions of employment , including an additional paid holiday , holiday overtime, and change in the vacation schedule, at a time when the Union was seeking to organize the employees and during the pendency of representation pro- ceedings before the Board , the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Because of the Respondent's interference with and coercion of the voters in the election of March 18 , 1960, thereby depriving voters of a free choice in the election, the election should be set aside. [Recommendations omitted from publication.] City Transportation Company and C. O. Whorton, C. B. Smith, H. C. Jordan, S. W. Slakey, E. C. Slakey, M. L. Wilson, and John T. Smith. Cases Nos. 16-CA-1385-1, 16-CA-1385-.3, 16- CA-1385-3, 16-CA-1385-4, 16-CA-1385-5, 16-CA-1385-6, and 16-CA-1385-7. May 26, 1961 DECISION AND ORDER On January 11, 1961, Trial Examiner John H. Dorsey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, City Transporta- tion Company, Dallas, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discharging or otherwise penalizing or disciplining any of its employees because they have engaged in concerted activities for the purpose of securing a change in terms and conditions of employ- ment or for other mutual aid or protection. (b) Keeping under surveillance the meeting place, meetings, and concerted activities of its employees engaged in for the purpose of collective bargaining or other mutual aid or protection. 131 NLRB No. 105.