Hoisting & Portable Engineers Local 701, Etc.

648 DECISIONS OF NATIONAL LABOR-,RELATIONS BOARD CONCLUSIONS OF LAW 1. The operations of the Respondent occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint within the meaning of- Section 8(a)( 1), (3 ), and (5) of the Act. [Recommendations omitted from publication.] Hoisting & Portable Engineers Local Union #701, International Union of Operating Engineers, AFL-CIO and Cascade Em- ployers Association, Inc. and Corvallis Sand & Gravel Co., Eugene Sand & Gravel Co., and Wildish Sand & Gravel Co., Parties to the Contracts. Cases Nos. 36-CB-235 and 36-CB- 235-2. July 31, 1961 DECISION AND ORDER On September 8, 1960, Trial Examiner William E. Spencer 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 and the Charging Party filed a brief in support of 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 McCulloch and Members Fanning and Brown]. 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 Interme- diate Report, the exceptions and briefs, and the entire record in this case',and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with the following decision and order .2 I We find no merit in the Respondent's contention that the Trial Examiner held that Respondent was bound by the determination made in the earlier case, Cascade Employers Association, Inc., 127 NLRB 488, and that it was not given a de novo consideration of whether the Cascade Employers Association constituted an appropriate multiemployer unit. We have in any case given the issue de novo consideration. The Respondent moved for leave to amend its answer to the complaint and to reopen the record on the Issue of appropriate unit. As the issue was fully litigated at the hearing, we agree with the Trial Examiner that the Respondent's position as to the unit in its answer is not controlling. We therefore grant the Respondent' s motion to amend and find It unnecessary to remand the case in view of our disposition of the matter herein. The request by Respondent for oral argument is hereby denied because , in our opinion, the record and the briefs adequately present the issues and the positions of the parties. 132 NLRB No. 44. HOISTING- & PORTABLE ENGINEERS LOCAL 701, ETC. 649 1. Contrary to. the conclusion of the Trial Examiner, we, are of the opinion that Respondent Union did not refuse to bargain with the Cascade Employers Association, Inc., herein called Cascade, as would constitute a violation of Section 8(b) (3) of the Act. Specifically, we find that the General Counsel has failed to establish that the Union was bound to bargain, on penalty of violating Section 8(b) (3), with the multiemployer unit consisting of Cascade, which is alleged in the complaint as appropriate. Although the Union had bargained for several years with Concrete Products Manufacturers Inc., herein called Concrete, an employer association to which many of the later members of Cascade belonged, we do not agree with the Trial Examiner that Cascade is a successor to Concrete in the continuation of obligatory bargaining relations with the Union. Thus, as was made plain, the base of membership in Cas- cade consists of employers from a much greater geographical area and a far more diversified area of trade than those employers previously members of, or eligible for membership in, Concrete. Accordingly, Cascade cannot be held to have succeeded to the bargaining history of Concrete in a manner as would bind the Union to bargain with Cascade as the established appropriate multiemployer bargaining unit 3 As the Board has held, an effective bargaining history or pattern, even though based on an informal organization of -employers, may be sufficient to establish an appropriate multiemployer unit.4 However, the fact here that the Union voluntarily entered into initial negotiations with a new association of employers, i.e., Cascade, with no prior bargaining his- tory and no existing multiemployer unit, and continue negotiations (while Cascade's membership was substantially fluctuating) over a period of some months without reaching agreement, is insufficient, in our opinion, to establish Cascade as a multiemployer bargaining unit binding upon the Union. The existence of such an established multi- employer unit, as here alleged in the complaint, is essential to finding an unlawful refusal to bargain. 2. The Trial Examiner found that Respondent Union restrained and coerced five employer-members of Cascade in the selection of Cas- cade as their representative for the purpose of collective bargaining within the meaning of Section 8(b) (1) (B) of the Act. We do not agree with that conclusion. We have already found that Respondent was not bound to bargain with Cascade as a multiemployer bargaining representative within the meaning of Section 8(b) (3). In the same respect Respondent 8 We also note that the bylaws of Cascade provide that negotiations resulting in a contract are only "binding upon those members of the Association who wish to become signatories thereto." The secretary-manager of Cascade testified as to the practice that, after negotiations were begun , members could avoid being bound by the contract reached by a complete withdrawal from Cascade . The record shows that a number of members did so withdraw from the Association during the course of negotiations. ' The Evening News Association, d/b/a Detroit News, et al, 119 NLRB 345, 347-348. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot be said to be bound to accept Cascade as a multiemployer bar- gaining representative under Section 8(b) (1) (B), absent a binding bargaining history. In addition, there is neither evidence nor conten- tion that Cascade, or its Secretary Blair, represented these employers on a single-employer basis. The gravamen of the complaint and the Trial Examiner's recommendation centers around Respondent's de- mands for single-employer bargaining; under the circumstances of this case, those demands were lawful. As we have reversed all the Trial Examiner's findings of violation of the Act, we shall dismiss the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE In this proceeding before the duly designated Trial Examiner of the National Labor Relations Board, herein called the Board, in Portland, Oregon, on April 27, 28, and 29, 1960, the Respondent herein was charged with a refusal to bargain with Cascade Employers Association, Inc., herein called the Association, in violation of Section 8(b)(3) of the National Labor Relations Act, herein called the Act, and, in violation of Section 8(b) (1) (B ) of the Act, with restraining and coercing employer- members of the Association in their choice of representatives for purposes of col- lective bargaining. In its duly filed answer the Respondent denied the commission of the alleged unfair labor practices. All parties participated in the hearing and subsequent thereto, on or before June 24, 1960, filed briefs. Upon the entire record in the case and from my observation of the witnesses, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER The Association is an Oregon nonprofit corporation with its principal place, of business in Portland , Oregon. It exists, in part , for the purpose of representing its employer-members in negotiating collective agreements with various labor organiza- tions, including the Respondent. Employer-members of the Association, engaged in nonretail operations, annually do a volume of business in excess of $1,000,000 and ship more than $50,000 in value of goods from Oregon to points outside Oregon, and from Washington to points outside that State. The Board's formula for asserting jurisdiction is therefore satisfied. The Board in an earlier case found that the Association was an employer within the meaning of the Act. Cascade Employers Association, Inc., 127 NLRB 488. II. THE LABOR ORGANIZATION INVOLVED Hoisting & Portable Engineers Local Union #701, International Union of Oper- ating Engineers, AFL-CIO , herein called the Respondent or the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues; bargaining between the Association and the Respondent There are three basic issues in this case: 1. At all times material herein did the Association represent Jones-Scott Company, herein called Jones-Scott; Ready-Mix Sand and Gravel Company, herein called Ready-Mix; Corvallis Sand & Gravel Co., herein called Corvallis; Eugene Sand & Gravel Co., herein called Eugene; and Wildish Sand & Gravel Co., herein called Wildish, in collective bargaining with the Respondent? HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 651 2. Did the Respondent coerce and restrain Jones-Scott, Ready-Mix, Corvallis, Eugene, and Wildish in their choice of the Association as their bargaining representative? 3. By the aforesaid coercion and restraint and by executing individual contracts with Corvallis, Eugene, and Wildish, did the Respondent refuse to bargain with the Association? Respondent in its answer to the complaint admitted its allegations that: The Association is an employer within the meaning of the Act; a unit composed of the following employees of its members engaged in the sand, gravel, and ready-mix concrete products business: All operators of heavy equipment, including shovels, draglines, crane trucks, front end loaders, plant operators, oilers, and heavy duty mechanics, excluding office clerical employees and supervisors as defined in the Act .. . is appropriate for purposes of collective bargaining ; the Respondent is the repre- sentative of a majority of employees in the said unit for purposes of collective bar- gaining; and the Respondent did not at any time prior to bargaining negotiations on a new contract beginning subsequent to December 31, 1958, give the Association notice of an intention to withdraw from bargaining on a multiemployer basis with the Association. The Association is a successor to Concrete Products Manufacturers Inc., herein called Concrete, which bargained on behalf of a group of employers engaged in the sand and gravel industry in Oregon. The successorship occurred in 1958, and the new organization extended its jurisdiction to include not only employers engaged in the manufacture of concrete products, such as were represented by Concrete, but also employers engaged in the "handling of concrete products of any kind or nature and/or engaged in the manufacture of allied products of any kind or nature in the Pacific Northwest." Thus, geographical jurisdiction , as well as its coverage of employers, was extended in the successorship. These changes obviously were reflected in an enlarged and more diversified appropriate unit. The most recent contract executed by Concrete and the Respondent in 1956 expired on December 31, 1958. Prior to this, by letter dated September 20, 1958, the Respondent had been notified that the Association was the successor to Concrete and wished to negotiate a new agreement. Negotiations on a new contract began in November 1958 and continued, off and on, through July 1959, without agree- ment. At a meeting on December 23, 1958, the Association presented the Respondent with a list of employers whom it claimed to represent. Some of these had been represented by Concrete in its 1956 contract negotiations ; others appeared in the multiemployer listings for the first time. As stated in Respondent's brief, the Respondent objected to the addition of some of these employers on one ground or another but it does not appear that it objected to the inclusion of Tones-Scott, Ready- Mix, Corvallis, Eugene, or Wildish, the employers the Respondent is charged with coercing in their choice of a bargaining representative. It is needless to review extensively the bargaining sessions between the Association and the Respondent Early in the negotiations the Association took the position that four of Respondent's proposals could not lawfully be incorporated in a contract, and filed a charge of unfair labor practices against the Respondent alleging insistence on the four said proposals constituted a refusal to bargain. On April 7, 1959, the Board's Regional Director refused to issue a complaint on the Association's charge, and the General Counsel on August 26, 1959, sustained the Regional Director's refusal. There was, I am convinced, no bona fide bargaining on the aforesaid four proposals pending a final disposition of the Association's charge, and while the Association may have entered into some discussions on the proposals it obviously was not going to enter into serious bargaining in the matter as long as there was any chance of maintaining its position that the proposals could not lawfully be incorpo- rated in a contract. Needless to say, such an attitude did not expedite the negotiation of a contract or ameliorate the bargaining relationship of the parties. To what extent, if any, it was responsible for precipitating the situation giving rise to the complaint herein I do not know, and it is idle to speculate, for in no event would it provide legal justification for the measures allegedly taken by the Respondent to destroy the multi- employer unit. These measures affected the five employer-members previously named, and we turn now to an examination of the evidence with respect to them. 1. Corvallis The Board in an earlier case involving the Association and a local of the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, herein called Teamsters (citation supra), found that beginning about May 11, 1959, Teamsters struck Corvallis with an object of forcing Corvallis to withdraw from the Association and bargain individually with Teamsters. It appears to my satisfaction that the Respondent supported the Teamsters' action in striking Corvallis, by refusing to permit its members employed by Corvallis to work for Corvallis during the strike, and by itself joining in the picketing of Corvalils beginning about June 8. Teamsters' strike against Corvallis and the picketing of Corvallis by both Teamsters and the Respondent ceased on about July 5, 1959, when Corvallis executed contracts individually with Teamsters and the Respondent, respectively. Corvallis' capitulation to economic pressure exerted by Teamsters and the Respond- ent was engineered by John Gallagher, Sr., Corvallis' elderly president, without the knowledge or consent of his son , John Gallagher, Jr., Corvallis' active manager. Gallagher, Jr.; testified that the strike and picketing by Teamsters and the Respondent resulted in substantial economic loss to Corvallis. 2. Eugene and Wildish About July 13, 1959 , Respondent's field representative and corresponding sec- retary, Richard F. Cleveland , called on Clarence Dick, superintendent of Eugene, and told him in effect that Eugene would have to withdraw from the Association for continued negotiations on a contract with the Respondent ; that Eugene had 48 hours in which to make up its mind in the matter ; and that a copy of a letter with- drawing from the Association should be sent to P. R . Wages, an officer of the Re- spondent. There can hardly be a doubt that Eugene was a member of the Associa- tion at this time , inasmuch as Dick was a member of the Association's negotiating committee and acting in this capacity attended a negotiating meeting with the Re- spondent on or about July 6. At this meeting , in which no agreement on a contract was reached , Wages stated that no plant had been picketed other than those which had engaged in a lockout of employees , but that such might not be the case for long. Previously, about July 11, Cleveland had met Leonard Wildish , a Wildish partner, on the latter's job, and informed him that the Respondent could not do business with the Association and that Wildish would have to withdraw from the Associa- tion and negotiate a separate agreement with the Respondent . Cleveland gave Wildish, as he later gave Dick , 48 hours to withdraw from the Association . Leonard Dale Pederson, an attorney, testified that Wildish called him about July 13 or 14, informed him of the 48-hour ultimatum, and pursuant to his conversation with Wildish, Pederson had letters of withdrawal from the Association prepared for his client and mailed under date of July 15. Pederson had identical letters of with- drawal prepared and executed for Eugene , another client . The circumstances at- tending the preparation and execution of the two letters were substantially identical. Admittedly, the Respondent rejected the letters as unsatisfactory and apparently the rejection was based on the wording of the letters to the extent that they con- tained this language: "After discussions with representatives of Engineers Local Union No. 701 we find it necessary , etc." A second set of letters omitting lan- guage which would suggest that they might have been written under compulsion of the Respondent were dated July 17 , and shortly thereafter Eugene and Wildish executed individual contracts with the Respondent. At no time were Eugene and/or Wildish picketed or subjected to pressure by the Respondent with respect to withdrawal from the Association other than what occurred in their oral interviews with Respondent 's agent, Cleveland. 3. Ready-Mix and Jones-Scott About August 11, Respondent's representatives, Carl L. Reams and Claude A. Smith, accompanied by a Teamsters representative, called on James F. Busch, owner of Ready-Mix, and told Busch , in substance , that many of the Association's mem- bers had abandoned it and that it was in effect a defunct organization. They re- quested that Ready-Mix withdraw its membership in the Association . Busch re- plied that he would get in touch with Blair, the Association's executive officer, before acting on their request . After having talked to Blair, that same evening Busch called Reams where the latter was stopping at a local hotel and told him that Ready- Mix had decided not to withdraw from the Association . The next morning the Respondent started picketing Ready-Mix. Some weeks later Reams called Busch and asked if Ready-Mix was still a member of the Association . Busch replied that it was. The picketing continued until November but Ready-Mix did not capitulate by executing a contract individually with the Respondent. HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 653 On August 12, the same day that picketing of Ready-Mix began, Respondent's representatives , Reams and Smith, called on Louis Pifer , manager of Jones-Scott. They told Pifer that they were "just visiting around to see how things were going," and then asked Pifer if Jones-Scott was still a member of "Pat Blair's association." Pifer replied in the affirmative and after some general conversation the two union representatives left. About August 14, the Respondent began picketing Jones-Scott and the picketing continued, off and on, until about the middle of September. Another plant owned by Jones-Scott at Walla Walla, Washington, not a member of the Association , where separate contracts were maintained with a Teamsters local and a local of the Respondent, was not picketed. Jones-Scott's membership in the Association was maintained and no separate contract was executed with the Respondent covering the picketed operations. B. Concluding findings In the findings above, I have relied on the testimony of the General Counsel's witnesses, Gallagher, Jr., Dick, Wildish, Busch, and Pifer, where it was in conflict with witnesses who testified for the Respondent. My reliance was based not so much on my observation of the witnesses, though that necessarily played a part, as on circumstances which supported the testimony relied on, such as the haste with which Eugene and Wildish sought out their attorney for rushing through their with- drawals from the Association, strongly supporting their testimony of the 48-hour ultimatum, and the overall pattern which establishes that the five employers in question were approached in succession by agents of the Respondent and shortly thereafter withdrew from the Association and executed separate contracts with the Respondent or were picketed by the latter. Isolated from the context of this pat- tern, the picketing of Jones-Scott might have been for any reason whatever, but viewed against the pattern of Respondent's conduct with respect to Corvallis, Eu- gene, Wildish, and Ready-Mix , and in association with Respondent 's interrogation of Pifer on Jones-Scott's continued membership in the Association, the only reason- able inference to be drawn is that the picketing which followed immediately Pifer's affirmation of Jones-Scott's membership in the Association was economic pressure exerted to require Jones-Scott, individually, to negotiate with the Respondent. There can be no doubt , now, that the Respondent might lawfully have struck the Association qua Association and picketed its employer-members for the purpose of achieving its bargaining objectives with the Association , or for breaking a stalemate or impasse in its negotiations with the latter, but it is equally clear that it could not lawfully strike or otherwise coerce the Association's employer-members with an object of causing them to break off from the Association and execute individual contracts with the Respondent. Employers' as well as employees' right to bargain through representatives of their own free choice is protected by the Act. This much is clear. There are, however, disturbing factors in this case which have given me pause. The Association in succeeding Cascade so widened its jurisdiction and defined it in such vague terms that disputes were almost certain to , and indeed did, arise as to its capacity to represent certain employers . Whereas Cascade's jurisdiction was limited to employers engaged in the sand and gravel industry in Oregon, the Association extended its coverage to employers engaged in the "handling of con- crete products of any kind or nature and/or engaged in the manufacture of allied products of any kind or nature in the Pacific Northwest." "Of any kind or nature" is obviously a catchall phrase of almost unlimited scope, and serious questions may well arise as to just what does constitute an appropriate unit under such a coverage. In this case, however , the alleged appropriate unit was admitted in Respondent's answer, and it appears that there is no real question that the five employer-members directly involved herein qualified under that unit description. A somewhat more serious question is whether they were actually represented by the Association and bound by its negotiations with the Respondent during the period material herein. I have resolved whatever doubts I had in the matter against the Respondent, but not without considerable hesitancy. I have accepted the testimony of the General Counsel's witnesses that all five appeared on the lists furnished the Respondent by the Association at the outset of negotiations on a contract to succeed to the expired contract between the Respondent and Concrete, and that at that time the Respondent raised no objection to their in- clusion in the lists. It further appears, however, that lists of employer-members furnished the Respondent by the Association during negotiations reflected numerous changes, both additions and subtractions , and in some instances employers were listed who were not actually represented by the Association. Obviously there was 654 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD carelessness, arising out of uncertainty in some cases, I expect, in the preparation of these lists, and the Respondent might well have been sceptical that the Association represented every employer whose name appeared on its lists . But with respect to employer-members Wildish, Eugene, Corvallis, Jones-Scott, and Ready-Mix, we have the testimony of their responsible officials that they were members of the Association during the periods of the Respondent's alleged unlawful acts, and there can be little doubt that the Respondent ascertained that fact by going to them di- rectly before taking action designed to cause them to execute individual contracts. In the case of Ready-Mix, for instance, it was only after Busch had called Blair and ascertained that the Association was still in business and had informed the Re- spondent's agent of his intention to continue his representation by the Association, that Respondent took action. In short, whatever doubts the Respondent may have entertained as to the bona fide membership of some employers it could have had none with respect to these five. We come then to what I regard as the most doubtful element in the General Counsel's case, i.e., the Association's capacity as an Employer to represent its mem- bers in bargaining with the Respondent. Despite the Respondent's admission in its answer of the employer status of the Association, and the Board's finding in an earlier case, cited supra, I have found it difficult to resolve my doubts in this matter. As to the former, we are bound to a consideration of the entire evidence in a case, and if the evidence does not support the General Counsel' s allegations, an admission by the Respondent does not free us of the duty to look at and weigh the evidence. As to the latter, it does not appear that the status of the multiemployer unit, as such, was litigated or noticed by the Board. Therefore, despite the Respondent's admis- sion and an earlier Board decision, I have considered myself bound to at least consider the evidence on the Association's status as an employer in a multiemployer unit which appears in the record of this proceeding. That this development stemmed from an inquiry initiated by the Trial Examiner is immaterial ; it is the Trial Exam- iner's appropriate function, within reasonable bounds, to see that the material facts in a case are recorded. "Article 2. Purpose," subparagraph 6 of the Association's bylaws, reads as follows: This Association shall have authority upon the request of any individual member or group of members to enter into negotiations or undertakings on behalf of such members, with employees of such members, or Union, or other Associa- tions representing such employees, in regard to wages, hours and working conditions; provided, that any such undertakings shall only be binding upon those members of the Association who wish to become signatories thereto. This is the sole definition of the Association's authority in bargaining for its members that appears in its bylaws. Blair, secretary-manager of the Association, testified that it was the practice under its predecessor, Concrete, and, presumably, would be the practice of the Association, that once its employer-members had made the decision to participate in the negotiations, "the only way they could get out of the negotiations was by a complete withdrawal from the Association." He also testified, in effect, that an agreement ratified by a majority of members was thence- forth binding on all. Once an agreement had been consummated, it was Blair's practice to execute the bargaining contract on behalf of all employer-members. Portions of this testimony are hardly consistent with the bylaws' provisions "that any undertakings shall only be binding upon those members of the Association who wish to become signatories thereto," but on the other hand Blair's testimony on the whole is not entirely inconsistent with this language, for, as noted above, his testi- mony that once negotiations had begun Association members had no choice but to be bound by them, had this important and crucial qualification, "The only way he [the employer-member] could get out of the negotiations would be a complete resig- nation from the Association." 1 If this means anything, it means that at any time 3 Blair's testimony on cross-examination : Q I call your attention particularly to Article 2, subparagraph 6. In practice, under subparagraph 6 of Article 2, Mr. Blair, do you get some sort of authority from an individual employer member before you enter into negotiations with any labor group on that employer's behalf? A. Yes, we do on a very practical basis. At the time the contract is opened and prior to negotiations starting on the new contract with any of the groups that we represent, we call in all of the members of the association that normally are bound or would be bound by that contract, discuss with them the probabilities of the negotia- tion of a new contract, and at that time they must make up their minds whether or HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 655 during negotiations, and perhaps even after an agreement had been consummated, an employer-member could refuse to be bound by the simple expedient of withdrawing his membership from the Association. It appears that during the 1958-59 negotia- tions, certain employer-members did in fact withdraw their Association memberships and transfer their bargaining authority elsewhere, and that this was the practice under Concrete as well as its successor. It is hard to see how the effectiveness and stability of collective bargaining is served" by multiemployer bargaining which is so loosely organized and whose bargaining authority is so precariously constituted. On the other hand, there is a considerable history of bargaining between this Re- spondent and Concrete; contracts have been negotiated and executed; and this, to- gether with the Respondent's consent to bargain with the Association as Concrete's successor, and its failure at any time during negotiations with the Association to raise any question of its capacity to bargain on behalf of its members, constitute factors which offset, to some degree, the Association's seeming impotence actually to bind its members by the agreements it negotiates on their behalf. Such balancing con- siderations and the fact that I do not review the matter entirely de nova, require my acceptance of the Board's determination in an earlier case that the Association is an employer within the meaning of the Act such as to require bargaining with it in the multiemployer unit. Accordingly, it is found that the Respondent violated Section 8(b) (1) (B) and 8 (b) (3) of the Act, as alleged. 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 Association and its members, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8(b) (1) (B) and 8(b) (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and of the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Hoisting & Portable Engineers Local Union #701, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Seo- tion 2(5) of the Act. 2. Cascade Employers Association, Inc., and its members are, each of them, employers within the meaning of Section 2(2) of the Act. 3. A unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is composed of all employees of employer-members of the above-named organization, as described below: All operators of heavy equipment, including shovels, draglines, crane trucks, front end loaders, plant operators, oilers, and heavy duty mechanics, excluding office clerical employees and supervisors as defined in the Act. 4. The Respondent is, and has been at all times material to this proceeding, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 5. By restraining and coercing employers in the selection of the Association as their representative for the purposes of collective bargaining, as found above, the not they want their name on the list or off the list of those who are going to partici- pate in the negotiations. Once the negotiations have been started , they no longer have the choice. Q. Now, as a matter of fact, Mr. Blair, once the negotiations have started and those negotiations culminate in an agreement between yourself and the committee represent- ing Cascade association and the union in question , under the proviso which Is at the tall end of that said subparagraph , the Individual employer does have a choice, does he not? A. No, be does not after he has once made his choice at the start of negotiations. The only way he could get out of the negotiations would be a complete resignation from the association. 656 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B ) of the Act. 6. By refusing to bargain collectively with the Association , as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Sections 2(6) and 2 (7) of the Act. [Recommendations omitted from publication.] Montgomery Ward & Co., Incorporated 1 and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local #377, Petitioner 'Montgomery Ward & Co., Incorporated and Retail Clerks Inter- national Association, Local 298, AFL-CIO, Petitioner. Cases Nos. 8-RC-4081 and 8-RC-4087. July 31, 1961 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Nora Friel, hearing officer.2 The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. 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 Brown]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning, of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner in Case No. 8-RC-4081, hereinafter called Team- sters, seeks to represent service employees, drivers and helpers, and warehousemen, including shipping and receiving employees, at the Employer's Youngstown retail store, located in two establishments in Youngstown, Ohio, viz, Liberty Plaza, located at Belmont Avenue, and Boardman Plaza, located at Boardman-Canfield Road, but excluding I The Employer's name appears as corrected at the hearing. 2 The Employer filed a motion to set aside the order consolidating cases, the notice of hearing, and that part of the record pertaining to Case No. 8-RC-4087 on the ground that ,no investigation was made by the Regional Director to determine whether a question con- cerning representation exists. The motion is denied inasmuch as we are satisfied that such an investigation was made. Moreover, preliminary investigation of showing of inter- est is a matter for administrative determination only and is not litigible by the parties. ,Accord : Louisiana Gas Service Co., 126 NLRB 147. We are also satisfied as - to the adequacy of the showing. 132 NLRB No. 45.