Chain Service Restaurant, Etc., Local 11, AFL-CIO

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chain Service Restaurant, Luncheonette & Soda Fountain Em- ployees, Local 11, AFL-CIO 1 and Local 153, Office Employees International Union, AFL-C102 Chain Service Restaurant, Luncheonette & Soda Fountain Em- ployees, Local 11, AFL-CIO, Welfare Trust Fund,' and its Trustees Elmer Hauck, Arthur Russell, William Donovan, Murray Solomon, George Papalexis, John Leonides, Austin B. Cox, Harry Greenseid, John Murphy, Ernest Gugenheim, 'Samuel Weiss, Lou Klein, James Manners, Nathan Kolton, and its Administrator Murray Solomon and Local 153, Office Employees International Union, AFL-CIO. Cases Nos..2-CA- 6339 and 2-CA-6349. August 14, 1961 DECISION AND ORDER On October 5, 1959, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the -Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease andde sist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report. On February 19, 1960, the Board remanded the proceeding to the Trial Examiner to make certain additional findings with respect to the Jurisdictional facts relating to the Fund. On January 10, 1961, pur- suant to such remand, the Trial Examiner held a hearing at which evidence was received and a stipulation of facts submitted by the parties, and on March 15, 1961, the Trial Examiner issued a Supple- mental Intermediate Report. Thereafter the Respondents filed, ex- -cepf ions to such report together with 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 Leedom and Brown]. 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 Supplemental Intermediate Report, the excep- tions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1 Hereinafter called Local 11 a Hereinafter called Local 153. s Hereinafter called the Fund. '132 NLRB No. 79. CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 961 I. JURISDICTIONAL ISSUE a. Local 11 The Trial Examiner deemed it proper to assert jurisdiction over Local 11 on the authority of the Oregon Teamsters' case4 We agrees Here, as in the Oregon Teamsters, the record shows that Local 11 is an integral part of a multistate labor organization, comprising Local 11's parent International union and 500 affiliated locals, and that during 1958 such locals remitted to the office of the International in Ohio dues and initiation fees exceeding $250,000, including more than $40,000 so remitted by Local 11. b. The Fund A more difficult question is presented with respect to the Fund. In asserting jurisdiction over it, the Trial Examiner again relied on the Oregon Teamsters' case, apparently having in mind the Board 's asser- tion of jurisdiction in that case over the security fund, which, like the instant Fund, was established by the unions there involved and various employers to provide health, accident, and other benefits to the em- ployees of such employers. However, in Oregon Teamsters jurisdic- tion over the security fund was asserted only on the basis of the trans- mittal by it of $2,000,000 annually in premiums to an out-of-State insurance carrier. No comparable basis exists here for asserting juris- diction over the Fund. The Fund maintains an office in New York City. During 1958, it purchased insurance policies in New York State from Northeastern Life Insurance Co., hereinafter called Northeastern, and remitted to Northeastern in New York State premiums in excess of $180,000. Dur- ing the same period, Northeastern received premium payments in ex- cess of $20,000,000 from out-of-State sources. As the foregoing premium payments by the Fund, unlike those in the Oregon Teamsters case, were not transmitted directly across State lines, they can afford a basis for asserting jurisdiction only if they constitute indirect "inflow" or "outflow" as these terms are defined in the Siemons case.' That case defines "indirect outflow" as "sales of goods or services to user's meeting any of the Board's jurisdictional standards." Clearly, the payment of premiums in connection with the purchase of insurance policies does not constitute the sale of goods or services. "Indirect inflow" is defined in the Siemons case as "the purchase of goods or services which originated outside the employer's , State but which he purchased from a seller within the State who re- Office Employees International Union v. N.L.R.B., 353 U.S. 313, 119 NLRB 207. 6 See Laundry. Dry Cleami.ng and Dye House Workers' International Union Local 26. et•al., 129 NLRB 1446. 6 Siemons Mailing Service, 122 NLRB 81. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceived such goods or services from outside the State." There appears to be no basis for finding that the policies purchased by the Fund from Northeastern "originated outside the employer's State"-in this case, New York-within the meaning of the foregoing definition. Accord- ingly, we find that the premium payments do not constitute indirect inflow or outflow, and therefore afford no basis for asserting jurisdiction. The question remains whether jurisdiction may be asserted on the basis of any of the matters set forth in the parties' stipulation. Attached to the stipulation is a copy of the trust indenture executed on October 19, 1955, governing the present operations of the Fund. This indenture provides for the management of the Fund by six trustees representing the employees covered by the Fund and by six trustees representing the participating employers, and authorizes the trustees to hold and disburse all moneys received by the Fund. The indenture authorizes the trustees to purchase policies of life insur- ance and health and accident insurance and to contract with phy- sicians, dentists, and hospitals for medical, dental, and hospital serv- ices. The coverage, of the Fund, under the indenture, is limited to employees of employers having contracts with Local 11 providing for contributions to the Fund. According to the stipulation, during 1958, 9 of the employers who contributed to the Fund met the Board's jurisdiction standards, they contributed over $165,000 to the Fund, 2,708 employees of these em- ployers were serviced by the Fund, the Fund remitted $98,000 to Northeastern on behalf of these employees, and the Fund paid bene- fits in excess of $74,000 to these employees. There is no evidence that any of the foregoing payments crossed State lines. Neither the Fund nor the trustees received any fees or other compensation from North- eastern or any other firm. The employers' contributions to the Fund represent payments made to defray the cost of various forms of protection for the employees covered by the Fund, and conversely they represent the amount charged by the Fund as the cost of furnishing such protection. Thus, we view the amount of $165,000 contributed to the Fund by the fore- going nine employers as payments for services to be rendered by the Fund to such employers, such services consisting in the discharge on behalf of such employers of their contractual obligation to furnish various forms of insurance protection to their employees. The Fund performs this service in part by purchasing insurance policies from Northeastern, and in part by contracting with physicians, dentists, and hospitals for various services. However, this does not alter the fact that, as between each employer and the Fund, the employer's contribution represents the cost to the employer of the protection pro- vided by the Fund. Any transaction between the Fund and North- CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 963 eastern or between the Fund and the hospitals, etc., is analogous to a subcontracting arrangement which does not affect the essential nature of the relationship between the Fund and the employers. Accordingly, we find that during 1958 the Fund furnished services valued in excess of $50,000 to employers who met the Board's juris- dictional standards, that the Fund is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over the Fund. II. THE MERITS We find, in agreement with the Trial Examiner, that Local 11 and the Fund violated Section 8(a) (5) and (1) of the Act by refusing to bargain with Local 153 as the representative of their employees. We find also that the Fund violated Section 8(a) (5) and (1) by granting unilateral wage increases to its employees in March 1959; that both Respondents violated Section 8 (a) (1) of the Act by spon- soring and sanctioning the circulation among their employees of a petition calling for resignation of their membership in Local 153; that the Fund violated Section 8 (a) (1) by promising benefits to its em- ployees if they would sign the petition ; and that Local 11 violated Section 8 (a) (1) of the Act by threatening an employee with reprisals for refusing to sign the petition. ORDER Upon the basis of the entire record, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, Chain Service Restaurant, Luncheonette & Soda Fountain Employees, Local 11, AFL-CIO, its officers, repre- sentatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a). Threatening employees with discharge to discourage member- ship in Local 153, Office Employees International Union, AFL-CIO,. or in any other labor organization. (b) Sponsoring and sanctioning the circulation among its em- ployees of petitions calling for their resignation from Local 153, or any other labor organization. (c) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with Local 153, Office Employees International Union, AFL-CIO, as the ex- clusive representative of its employees in the following appropriate unit : All office and clerical employees of Chain Service Restaurant, Luncheonette & Soda Fountain Employees Local 11, AFI -CIO, em- ployed at 'its offices in New York, New York, exclusive of all super- visors as defined in Section 2 (11) of the Act. 614913-62-vol. 132-62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 153 or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 153, Office Em- ployees International Union, AFL-CIO, as the exclusive representa- tive of all its employees in the unit found appropriate hereinabove and embody any agreement reached in a signed contract. (b) Post at its offices in New York, New York, *copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the Respondent's representative, be posted immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of, this Order, what steps have been taken to comply therewith. B. The Respondent, Chain Service Restaurant, Luncheonette & Soda Fountain Employees, Local 11, AFL-CIO, Welfare Trust Fund, its officers, agents, successors, assigns, its: trustees, and Murray Sol- omon, its administrator, shall: 1. Cease and desist from : (a) Promising benefits to discourage membership in Local 153, Office Employees International Union, AFL-CIO, or any other labor organization. (b) Sponsoring and sanctioning the circulation among its employ- ees of petitions calling for their resignation from Local 153, or any other labor organization. (c) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with Local 153, Office Employees International Union, AFL-CIO, as the exclu- sive representative of its employees in the following appropriate:unit: All office and clerical employees of Chain Service Restaurant, Lunch- 7 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." CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 965 -eonette & Soda Fountain Employees, Local 11, AFL-CIO, Welfare Trust Fund, employed at its offices in New York, New York, exclusive of all supervisors as defined in Section 2 (11) of the Act. (d) Making or effecting any changes in rates of pay, wages, hours, or other terms or conditions of employment of its employees in the appropriate unit without giving notice and consulting with the afore- said Local 153 as the exclusive representative of the employees. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 153 or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 153, Office Em- ployees International Union, AFL-CIO, as the exclusive representa- tive of all its employees in the unit found appropriate hereinabove and embody any agreement reached in a signed contract. (b) Post at its offices in New York, New York, copies of the notice attached hereto marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the Respondents' representative and Murray Solomon, administrator, be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writing, within' 10 days from the date of this Order, what steps have been taken to comply therewith. 8 See footnote 7, supra. APPENDIX A 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT threaten employees-with discharge to discourage membership in Local 153 , Office Employees International Union, AFL-CIO, or ^ any other labor organization. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT sponsor and sanction the circulation among our employees of petitions calling for their resignation from the above-named or any other labor organization. WE, WILL bargain collectively, upon request, with Local 153, Office Employees International Union, AFL-CIO, as the exclu- sive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an agreement is reached, embody such understanding in a signed con- tract. The bargaining unit is : All office and clerical employees employed at our offices in New York, New York, exclusive of all supervisors as defined in Section 2(11) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist Local 153, Office Employees International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization except to the extent above stated. CHAIN SERVICE RESTAURANT, LUNCHEON- ETTE & SODA FOUNTAIN EMPLOYEES, LOCAL 11, AFL-CIO, 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. APPENDIX B 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 Labor Management Relations Act, we hereby notify our employees that : WE WILL NOT make promises of benefit to our employees to discourage membership in Local 153, Office Employees Interna- tional Union, AFL-CIO, or any other labor organization. CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 967 WE WILL NOT sponsor and sanction the circulation among our employees of petitions calling for their resignation from the above-named or any other labor organization. WE WILL. bargain collectively, upon request, with Local 153, office Employees International Union, AFL-CIO, as the exclusive representative of all our employees in the bargaining unit de- scribed below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract. The bargaining unit is : All office and clerical employees employed in our offices in New York, New York, exclusive of all supervisors as defined in Section 2 (11) of the Act. WE WILL NOT make or effect any change in rates of pay, wages, hours, or other terms or conditions of employment of our em- ployees in the appropriate unit without giving notice to and consulting with Local 153, Office Employees International Union, AFL-CIO, as the exclusive representative of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees'in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist Local 153, Office Employees International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization except to the extent above stated. CHAIN SERVICE RESTAURANT, LUNCHEON- ETTE & SODA FOUNTAIN EMPLOYEES, LOCAL 11, AFL-CIO, WELFARE TRUST FUND, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) MURRAY SOLOMON, Administrator. Dated---------------- By------------------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon separate charges, as amended, filed by Local 153, the General Counsel of the National Labor Relations Board, through the Regional Director for the Second Region (New York City), issued an order consolidating the cases and issued a complaint, dated April 10, 1959, and an amended complaint, dated May 27, 1959, against the above-named Respondents alleging Respondents' Local 11 and Welfare Trust Fund, as employers, have engaged in and are engaging in unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act.. In their joint answer the Respondents deny they are engaged in commerce within the meaning of the Act and that they have engaged in any unfair labor practices. Pursuant to notice, a hearing was held at New York City on June 22 and 23, 1959, before the duly designated Trial Examiner. All parties were represented by counsel and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to. file briefs. ' Counsel for the Respondent submitted a brief which I have fully considered. Upon the entire record, and from my observation of the witnesses, I make the- following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The amended complaint (herein referred to as the complaint) alleges that, at all times material, Local 11, a voluntary, unincorporated association organized under the laws of the State of New York, is a labor organization chartered by and affiliated with Hotel & Restaurant Employees International Union, AFL-CIO, a national labor organization consisting of 500 chartered locals in 40 States having a total membership in excess of 425,000 persons. Local 11 maintains its principal office in New York City, has a membership in excess of 5,500 persons, and is engaged in representing employees for the purposes,of collective bargaining under collective-bargaining con- tracts with employers who are engaged in business operations both within and without the State of New York. Local 11 is subject to and bound by the provisions of the constitution of the International. During the year 1958, locals chartered by the International outside the State of Ohio, remitted directly to the International's office in Cincinnati, Ohio, per capita dues and initiation fees valued in excess of $250,000, of which sum in excess of $40,000, was remitted by Local 11. The complaint alleges Welfare Trust Fund, herein called the Fund, is a fiduciary organized and existing by virtue of the laws of the State of New York, having been established pursuant to a trust indenture agreement executed by authorized officers of Local 11 and representatives of employers who are engaged in business operations both within and without the State of New York, and with whom Local 11 has executed and now maintains collective-bargaining agreements requiring said employers to make contributions to the Fund. The Fund exists for the purpose of purchasing, providing, and maintaining life, health, accident, and related insurance policies and, benefits for employees of said employers covered by the aforementioned collective-bargaining contracts; and said Fund is controlled, managed, and administered by an equal number of trustees designated by Local 11 and the said employers pursuant to the terms of the trust indenture agreement, which trustees have, in accordance with said agree- ment, designated an administrator to perform clerical and other administrative duties for the Fund. The Fund maintains its office in the same building as Local 11, and has been continuously engaged in purchasing, providing, and maintaining life, health, accident, and related insurance policies and benefits for employees, as described above, which policies and benefits are purchased from Northeastern Life Insurance Company of New York, an insurance corporation organized and existing under the laws of the State of New York, with principal offices located in the State, which is licensed to, and does, underwrite life, health, accident, and related insurance risks in the State of New York and 15 other States. During 1958, the Fund purchased policies from Northeastern for which it paid premiums valued in excess of $180,000. In the same period Northeastern received total premiums for the purchase of insurance policies in excess of $23,000,000, of which amount in excess of $20,000,000, represented premiums paid directly to Northeastern by its insureds located outside the State of New York. The Fund acted as agent for Local 11 and for various employers engaged in interstate commerce engaged in commerce within the meaning of the Act, in con- trolling, managing, and administering the Fund for the purposes stated in the trust indenture agreement establishing the Fund. At all times material the persons whose names appear in the caption of the case were duly designated trustees of the Fund. CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 969 The foregoing allegations are not denied by Respondents Local 11 and the Fund, except that they deny the Fund acted as agent for Local 11 and for various employers and that James Manners and Nathan Kolton are trustees of the Fund. Counsel for the Respondents concedes that under the Oregon Teamsters' case I Local 11 and the Fund are employers with respect to their own employees. How- ever, counsel contends the Respondents are not engaged in commerce within the meaning of the Act and argues the amounts involved here are far less than those' appearing in the Oregon Teamsters' case, upon which the Board asserted jurisdiction? Unquestionably, there is a vast difference in the value of comparable business oper- ations between the instant Respondents and those in Oregon Teamsters',3 but the test is whether the Respondents' operations meet the Board's minimum standards for the assertion of jurisdiction. Except for degree, the business operations of the present Respondents are of the same character as those performed by the respondents in the Oregon Teamsters' case, so, on the basis of the undenied jurisdictional allegations in the complaint; and following the Board's rationale in Oregon Teamsters', I find Local 11 and the Fund are engaged in commerce within the meaning of the Act. The Trustees as Respondents The complaint alleges that at all times material the 14 individuals named as Re- spondents were trustees of the Fund. The answer concedes the correctness of this allegation, except as to James Manners and Nathan Kolton. Counsel for the Respondents urges dismissal of the complaint as to the trustees, except Murray Solomon who is also administrator of the Fund, for the reason there is neither allegation nor proof that they individually participated in any unfair labor practices and the fact they hold offices as trustees is insufficient to establish individual 1 liability. The General Counsel states the trustees, being the governing body and con- stituting the entity, were named as Respondents for jurisdictional and remedial purposes. Bernice Baruta, an employee of the Fund and a witness for the General Counsel, testified Manners and Kolton were not trustees at times material herein. I, therefore, grant the motion to dismiss as to Manners and Kolton. Since the Fund is an entity authorized under Section 302(c) of the Act and is administered by repre- sentatives of the employer and employees, I do not see that it makes any difference whether or not the trustees are named as individual Respondents. In the Oregon Teamsters' case only the administrator of the security fund was made a party respond- ent. I believe the General Counsel may exercise discretion in such matters and as he has elected to name the trustees as Respondents I deny the motion to dismiss .4 I agree there is no evidence that the trustees, except for Solomon, participated per- sonally in the unfair labor practices found herein. II. THE LABOR ORGANIZATION INVOLVED Local 153 is a labor organization within the meaning of Section 2(5) of the Act_ III. THE UNFAIR LABOR PRACTICES A. The issues The issues,are: (1) Did Local 11 and the Fund unlawfully refuse to bargain col- lectively with Local 153; (2) did the Respondents induce and coerce their em- ployees to resign from Local 153; and (3) did the Respondents illegally grant wage increases to their employees. B. The refusal to bargain 1. The appropriate units and majority therein The complaint alleges that at all times material, all office and clerical employees of Local 11, at its office in New York City, exclusive of supervisors as defined in i Office Employees International Union v. N.L R B , 353 U.S. 313. 2119 NLRB 207 8 There the security fund paid an annual premium to an out-of -State insurance carrier in the amount of $2,000,000 , and per capita taxes, initiation fees, and dues remitted by all locals totaled about $6,000,000 * Presumably, the General Counsel has dropped the case as to trustees Charles Chiusano, Michael Tavlin, and Hyman Lederman , who were named in the original com- plaint but omitted in the amended complaint . In addition, Baruta stated they were not trustees at the time in question Under the circumstances , I do not consider these three- individuals as proper parties Respondents. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, constitute a unit appropriate for the purposes of collective bargaining, and that Local 153 , having been designated by a majority of the employees , was, and is, the exclusive bargaining representative for all the employees in the unit. The complaint alleges an identical unit for the employees of the Fund , and that Local 153 was, and is, the exclusive bargaining representative of all the employees in the unit. The answer does not deny the appropriateness of the respective units but denies Local 153 represents a majority of the employees in each unit. On the basis of the record I have no difficulty in finding each of the above units to be appropriate for the purposes of collective bargaining and that Local 153, at all times material, represented a majority of the employees in the respective units. 2. The refusal to bargain The complaint further alleges that on or about December 15, 1958, and there- after, the Respondents refused to bargain collectively with Local 153 as representa- tives of the employees in the above-described units. Charles Ponti, business representative for Local 153, testified the local has had separate collective-bargaining agreements with the Respondents for many years, the last agreements being effective from January 1 , 1957, to December 31, 1958. Ponti signed each of these agreements on behalf of Local 153, and Arthur Russell, a secretary-treasurer, signed on behalf of Local 11, while Murray Solomon signed on behalf of the Fund. The agreements provided for automatic renewal from year to year unless terminated by either party on 60 days' written notice prior to the expiration date. The agreements also provided for modification by either party on similar notice, the other party to request a conference within 10 days after receipt of such notice. By letters dated October 6, 1958, Ponti notified Local 11 and the Fund that Local 153 was terminating the agreements and that he would contact them regarding meet- ings for the purpose of discussing new agreements. Neither Local 11 nor the Fund made any response to these letters. About December 14, Ponti held separate meetings with the seven employees of Local 11 and the five employees of the Fund , all of whom were members of Local 153, at the premises of Local 11 , for the purpose of discussing terms of a new agreement. On December 15, Ponti wrote a letter to the Fund stating Local 153 would like to renew the existing agreement for a period of 2 years , January 1, 1959 , to Decem- ber 31, 1960, with specified modifications , which providqd for a general wage in- crease, higher starting pay, an addition to the promotion clause, deletion of the merit increase provision, and the accumulation of sick leave . On December 17, Ponti sent a letter to Local 11 requesting a like renewal of the existing agreement with specified modifications, which provided for a general wage increase , higher starting pay, an addition to the promotion clause, and the payment of unused sick leave. Ponti requested early discussions of his proposals but received no reply from the Fund or Local 11. About a week later Ponti telephoned Seena Miller and Mary O'Reilly, shop stew- ards at Local 11 and the Fund, respectively, to inquire of the proposals and what, if any, arrangements had been made for a meeting with the respective officials for the purpose of discussing the proposals. Miller said the proposals had been received and both she and O'Reilly stated they would attempt to arrange a date for a meet- ing. Ponti heard nothing further from Miller or O'Reilly until around the first week in January 1959, when they telephoned to report there was a rumor that a petition to withdraw from Local 153 was to be circulated among the employees. Later, about January 8 or 12, Ponti received a petition or letter signed by all the employees of Local 11 and the Fund , except Baruta, which stated : "We, the under- signed, hereby tender our resignation in Office Employees International Union, Local 153." As appears below, Ponti met with Fred Ferrara, president of Local 11, on January 9 or 16. 3. The dispute between Local 153 and Local 11 over the organization of employees of Childs Restaurant Matthew Thompson , director of the hotel and restaurant division of Local 153, testified that in August 1958, the local decided to organize the cashiers and checkers at Childs Restaurant. Since Local 11 already had some employees , such as waiters and bartenders, Thompson did not want it to appear the local was intruding on its jurisdiction, so he, with a Mr. Avrutin of Local 153 , met with Ferrara, at his office, to explain the organization plan and to request any assistance Ferrara could give CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 971 them. Ferrara said he had no objection to Thompson's organizing the cashiers and checkers and while he could not give assistance he would do nothing to obstruct or- ganization. The meeting concluded on a friendly basis and Thompson did not hear from Ferrara until Local 153 filed a representation petition with the Board. Ferrara testified Thompson and Avrutin told him they had a considerable number of cashiers at Childs and asked for his cooperation in organizing these employees. Ferrara replied if they had a majority of the cashiers and they could secure recog- nition, as they claimed they could, there was nothing he could do. However, he stated if Local 153 did not have a majority of the cashiers but was going to conduct an organizational campaign and ultimately seek an election in this group, then Local 11 would intervene and fight them because cashiers and clerical employees had been under its jurisdiction for many years. According to the records of the Board, Local 153 filed a representation petition on December 15, 1958 (Case No. 2-RC-9711), and Local 11 intervened in the proceeding.5 C. The mass resignation of the Respondents' employees from membership in Local 153 Baruta worked continuously for Local 11 and its predecessor from 1944 to 1955, when Solomon, administrator of the Fund and a business agent of Local 11, re- quested her to accept a position with the Fund, which she did. Her principal duties as an employee of the Fund consisted of the processing of claims, preparing claims, preparing claim checks, and making appropriate ledger entries, and she was so em- ployed at the time of the hearing. Baruta has been a member of Local 153 for more than 20 years. Around November or December 1958, Baruta heard that Local 153 was or- ganizing the employees at Childs Restaurants. About the second week in Decem- ber, Pond met with the employees, in Solomon's office after working hours, to dis- cuss contract proposals. On the morning of January 8, Solomon called the employees of the Fund to his office, namely, Baruta, O'Reilly, Eleanor deTranaltes, and Marilyn Provost. Mae Devine, the remaining employee, was absent due to illness. Baruta stated that Solomon, who had a letter or petition signed by the employees of Local 11 resigning their membership in Local 153, told the group: Here is a paper. Look. They all signed. [Local 11 employees.] Now, I want all you girls to sign the paper, because Local 153 is going into our shops- Maisel's, Reise's, and Child's-and they are talking ill of us and they are trying to organize . I must have you girls sign this paper , because the girls downstairs signed it. Baruta asked why they had to sign the paper, that they had nothing to do with any jurisdictional problem between the locals. Solomon replied, "They are taking mem- bers away from us and we are going to take members away from them." DeTranaltes brought up the subject of the contract and Solomon stated Attorney Luxemburg would draw up a contract and not to worry about raises, that they would be granted. O'Reilly inquired the reason for their signing the paper and Solomon said they wanted the employees to sign up, and as a favor to please do so. Baruta refused to sign, stating it was not right for the girls to be used in a dispute between the locals which had nothing to do with them. Solomon commented he had told O'Reilly that Baruta would be the only one who would not sign up. When Baruta asked if she could contact the business agent for Local 153, Solomon told her, "No," not until after she had signed. O'Reilly, DeTranaltes, and Provost then signed the petition. Solomon and O'Reilly requested Baruta to sign as,a favor to them but she refused to do so. Devine signed the petition the following day. 5 The petition described the unit as cashiers and food checkers at Childs Restaurant Division, excluding all employees presently covered by collective-bargaining agreements, watchmen, guards, and supervisors The Board, on May 27, 1959, directed an election be held in a group consisting of cashiers, food checkers, and clerk check counters, excluding all other employees, guards, watchmen, hostesses, and supervisors. Further, if a majority of the employees vote for the Petitioner, they will constitute a separate unit and if a majority vote for the Intervenor they will be deemed a part of the existing unit. On June 3, the election was conducted and none of the choices received a majority of the votes cast. The Board, on September 3, issued its Supplemental Decision and Direction overruling the Intervenor's objections and directing a runoff election with Petitioner as the only labor organization on the ballot. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Solomon did not testify at the hearing. The next day Baruta was called to Ferrara's office . Ferrara, with Russell pres- ent, told Baruta they had known her for a long time and she was the only one who had refused to sign the resignation petition. Ferrara pointed out that Local 153 was organizing at Childs', Maisel's, and Reise's, that "they were talking ill" of Local 11, and therefore, Local 11, as well as sister locals, were "taking all of the girls away from" Local 153. Baruta answered she had woiked for unions for 20 years and had never heard of anything like that. The purpose of a umon, she stated, was to organize and improve conditions, and jurisdictional disputes between unions should have no bearing on employees working for one of the unions involved. Baruta concluded by saying she had been with Local 153 for over 20 years and she would not sign the petition. Ferrara mentioned one girl who had signed had been a member for 15 years. Baruta remarked it was a shame she had to sign after being a member for that length of time. Ferrara and Russell again requested her to sign the petition but she refused. Ferrara warned that if she did not sign she would never get another job with a sister local and asked that she resign from her job. Baruta declined to resign and left the office. Baruta then informed Ponti of the above meeting. She had no further conversations with officials of Local 11 or the Fund regarding the petition or her resignation and was still employed by the Fund. Ferrara admitted talking to Baruta about the petition in his office, but he was not certain of the date and could not recall Russell being present . Concerning this meet- ing he testified: I suggested to Bunny [Baruta] that this being a very unpleasant and undesirable situation, and since all of the girls had decided to resign from Local 153, that she had to make the same decision, and that having had such long relations with her as we have had, we felt it only fair that in this dispute that she do exactly what the other girls had done. Later, Ferrara said he did not specifically ask Baruta to sign anything, that "she had the same choice and decision to make." He also advised Baruta, without pres- suring her, that her first loyalty was to Local 11 and "she belonged on our side of the dispute rather than on their side." Ferrara denied uttering any threats, or that he requested her to resign from her job, or that he warned her she would never obtain employment with another local if she refused to sign the resignation petition. Ponti said Miller and O'Reilly telephoned him about January 8 and informed him the petition had been circulated and signed by all the employees except Baruta. Around January 8 or 12, Pond received the resignation petition. The meeting of January 9 or 16, 1959 Upon receipt of the petition, Ponti called Ferrara on one of the above dates and early that afternoon Ponti, Thompson, and Ferrara met at a restaurant to discuss the situation. Thompson asked Ferrara what was happening and Ferrara said he could not live up to his prior agreement that there would be no interference with organizational efforts at Childs because he had received instructions from the gen- eral organizer of the International Union to stop Local 153 in its organizing cam- paign. Ferrara further stated he had had contracts with Childs for 20 years and he could get an agreement on his own terms covering the cashiers and checkers, without an election, if Local 153 would withdraw from the scene. Thompson asked why he had not obtained an agreement 20 years ago. Thompson then stated he heard Ferrara had told the employees of Local 11 and the Fund they had to resign their membership in Local 153. Ferrara admitted he had done so because, "we were paying their salaries and we felt they owed more loyalty to us" than to Local 153. Thompson and Ferrara talked about the one girl who had refused to sign the petition and Ferrara said he had not decided what to do with her. Thompson men- tioned unfair labor practice charges had been filed with the Board 6 and Ferrara told him to do whatever he believed necessary. Thompson also remarked there was a possibility Local 153 might declare a strike and establish a picket line. Ferrara replied he would then call the International for instructions as to what he should do. The conversation ended and when they were leaving the restaurant Thompson walked ahead of Ponti and Ferrara. Thompson did not hear any discussion about contract negotiations between Local 153 and Local 11 and the Fund. Ponti testified substantially the same as Thompson, except he could not recall, or did not hear, any discussion regarding the resignation petition. Ponti said he 9 The original charge was filed on January 12, which indicates the meeting must have taken place on January 16. CHAIN SERVICE RESTAURANT , ETC., LOCAL 11 , AFL-CIO 973 requested Ferrara to sit down and negotiate an agreement for the employees of Local 11 and the Fund and he answered he could not negotiate under the circum- stances. The meeting then ended. Ponti made no further effort to contact officials of Local 11 or the Fund, nor did they communicate with him. Ferrara recalled the above meeting but he could not remember how it had been arranged. According to Ferrara, Ponti and Thompson wanted to know what was wrong since there had been considerable friction and fighting in the organization of Childs' employees . Ferrara replied they were out of line and had violated "any kind of half-understanding we had with them ." He also stated they were saying nasty things about Local 11 and they would not permit Local 153 to organize these employees, if they had anything to do about it . Ferrara said he probably told Ponti and Thompson that he was under instructions from the International to oppose their organizing these employees. He could not recall any discussion touching upon the employees of Local 11 or the Fund. Ferrara said picketing might have been men- tioned during the meeting . When asked if Ponti requested him to negotiate for the employees of Local 11, Ferrara responded , "I don't think he would have said that to me. I may be wrong, I certainly don't recall that ." In this connection Ferrara explained Ponti knew he had never represented Local 11 in its dealings with Local 153. D. The wage increases At the outset of the hearing the complaint was amended to allege that in March 1959 , each of the Respondents unilaterally granted wage increases to employees within the bargaining units, without notice to or negotiation with Local 153.7 The only testimony on wage increases comes from Baruta who testified that in March 1959 , the Fund granted pay increases to the employees amounting to $7 per week for Baruta, Provost, and DeTranaltes , $ 10 for O'Reilly, and $4 for Devine, a part-time employee. Concluding Findings The record shows that for many years Local 153 and the Respondents were parties to collective-bargaining agreements and, seemingly , conducted their labor relations on a friendly basis until 1958 when they became involved in an organiza- tional dispute which prompted the Respondents to adopt a retaliatory course of action against Local 153 and their employees and which resulted in the present pro- ceedings . It is undisputed that after serving timely and proper notice of termina- tion of the existing agreements,8 Local 153 submitted contract proposals and re- quests for early negotiation meetings to the Fund and Local 11 on December 15 and 17, respectively. The Respondents ignored these communications and there- after refused to meet or negotiate with Local 153 regarding its proposals. The Respondents main contention is that they were under no statutory 'obligation to.bargain with Local 153 since it did not represent a majority of the employees in the appropriate bargaining units. In support of their position the Respondents argue that the "mass resignation petition of the employees " proves that Local 153, which had never been certified by the Board , "had lost its majority status or at least created a good faith doubt of such majority status." The employees, of course, had the right to revoke their designation of Local 153 as their exclusive bargaining representative, provided the officials of Local 11 and the Fund did not unlawfully induce and coerce the employees to sign the resignation petition. Baruta's testimony detailing the circumstances under which Solomon solicited signatures to the petition stands undenied in the record . Accepting her credible testimony, I find that about January 8, 1959 , Solomon advised four of the Fund employees of the organizational dispute between Local 11 and Local 153 and that the employees of Local 11 had already signed the resignation petition . Consequently, they, too, had to sign the petition because Local 153 was "taking members away from us and we are going to take members away from them." Moreover, Solomon, in answer to an inquiry concerning the contract, assured the girls the Fund's attorney would prepare an agreement and that wage increases would be granted . Despite personal appeals by Solomon and O 'Reilly, and the fact that all employees had 7 I granted the motion subject to the right of counsel for the Respondents to request a continuance at the conclusion of the General Counsel's case, if he needed additional time to prepare his case in respect to the amendment Counsel made no request for a post- ponement of the case 8During oral'argument counsel for the Respondents claimed the notices did not comply with Section 8(d) (3) of the Act because no notice was served upon Federal and State mediation services . As there was no strike in this case , Section 8 ( d) is inapplicable. (Unated States Gypsum Company , 90 NLRB 964, 968.) 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed up, nevertheless Baruta refused to sign the petition. The following day Baruta was summoned to Ferrara's office where Ferrara, in the presence of Russell, pointed out she was the only employee who had refused to sign up and, for the same reasons advanced by Solomon, urged her to sign the petition. Baruta explained why she would not sign the petition and when she persisted in her refusal Ferrara requested she resign from her job and warned her she would never work for a sister local. Baruta still declined to sign the petition or to resign her job and was still working for the Fund at the time of the hearing. Ferrara admitted he told Baruta "since all of the girls had decided to resign from 153, that she had to make the same decision." Later, Ferrara attempted to qualify his testimony by stating he did not specifically ask Baruta to sign anything; that he simply advised her that her first loyalty was to Local 11 and "she belonged on our side of the dispute rather than on their side." He denied making any threats to Baruta or that he asked her to resign from her job. Baruta impressed me as a well-informed person who related the events of her meet- ing with Ferrara and Russell in a fair and convincing manner. On the other hand Ferrara's assertion he did not specifically ask Baruta to sign the resignation petition and he merely reminded Baruta of her loyalty to Local 11 strikes me as implausable and certainly inconsistent with the very purpose of the meeting, as well as his earlier testimony to the effect that Baruta had to make the same decision as all the other employees had made, namely, sign the resignation petition. I, therefore, accept Baruta's testimony and find the petition was signed by the employees under the circumstances described by her and that when she refused Ferrara's demand that she sign, Ferrara requested that she resign her job and warned her she would never work for a sister local. Manifestly, the Respondents sponsored the resignation petition in retaliation against the organizational efforts of Local 153 to unionize certain workers of Childs' and to create some excuse for their refusal to bargain with it as the representative of their employees. Counsel concedes that the Respondents' representatives "made no secret of their bitter resentment and anger with Local 153" over its organizational activities, which were undermining the jurisdiction of Local 11 and affecting the continued employment of the employees involved. Of course, the Respondents overlook the fact that Local 153 was engaging in legitimate activities and offered no evidence whatever remotely suggesting that its representatives indulged in any unlawful or even questionable conduct in the performance of their duties as rivals in the organizational campaign or as the exclusive bargaining agent of the Respondents' employees. Counsel claims the Respondents simply expressed their views on the controversy and that the employees should resign their membership in Local 153. Had the Respondents' officials done nothing more than advise their employees of the dispute with Local 153 and express their opinions in the matter, undoubtedly their statements and expressions would fall within the protection of Section 8(c) of the Act. But the foregoing evidence and findings show the representatives did not confine themselves to the mere expression of their own views, arguments, and opinions as to whether their employees should maintain their membership in Local 153. In any event, the Respondents assert, the statements had no coercive effect upon the employees' right to remain members of Local 153 since their membership therein was never one of free choice. Except for the fact the last agreements contained illegal union-security clauses, there is no evidence indicating the circum- stances under which the employees became members of Local 153, other than Baruta, who said she had been a member for 20 years. I fail to see any merit in this argument. Indeed, the same argument was advanced and rejected in the Oregon Teamsters' case.9 Accordingly, I reject the contentions and arguments of the Respondents 10 and find that by engaging in the conduct found above the Respondents thereby violated 0113 NLRB 987, 1006, footnote 7 Adopted by the Board, 119 NLRB 207. 10 The cases cited by counsel are readily distinguishable from the instant case Thus, Blue Flash Express, Inc., 109 NLRB 591, holds only that interrogation of employees by the employer concerning their union membership or activities is not unlawful per se. Lily-Tulip Cup Corporation, 113 NLRB 1267, and Avildsen Tools and Machines, Inc., et al., 112 NLRB 1021, follow Blue Flash, and in Morganton Full Fashioned Hosiery Company, et al, 107 NLRB 1534, the Board held two coercive statements were too iso- lated to warrant setting aside an election involving some 639 employees NLRB v. United Steelworkers of America, CIO (Nutone, Inc ), 357 U S. 357, involved "the very narrow and almost abstract question" of whether an employer was protected in his anti- union solicitation by virtue of a valid no-solicitation rule while the Supreme Court held there was no violation under the circumstances, the Court added , "we do not at all imply that the enforcement of a valid no-solicitation rule by an employer who is at the CHAIN SERVICE RESTAURANT, ETC., LOCAL 11, AFL-CIO 975 Section 8(a)(1) of the Act. (Marcus Bros., 123 NLRB 33; Piasecki Aircraft Cor- poration, 123 NLRB 348; American Life and Accident Insurance Company of Ken- . tucky, 123 NLRB 529.) In view of the foregoing findings I further find that the Respondents initially delayed meeting with Local 153 in order to dissipate its majority status and, having accomplished their objective, persisted in their refusal to meet or negotiate with it. I, therefore, find that on and after about December 15 and 17, 1958, the Fund and Local 11, refused to bargain collectively with Local 153 as the exclusive representa- tive of their employees in the units herein found appropriate. The Respondents seek to excuse their refusal to bargain, on January 9 or 16, for the reason there was no clear and unequivocal demand for bargaining at that time. The parties were in accord that the Childs' situation was discussed at the luncheon meeting. Ponti also testified he asked Ferrara to sit down and negotiate an agreement with him, but Ferrara stated he could not negotiate under the circumstances. When his counsel asked the direct question whether Ponti had requested him to negotiate, Ferrara responded, "I don't think he would have said that to me. I may be wrong. I certainly don't recall that." Considering the purpose of the meeting and Ponti's positive testi- mony and Ferrara's vague and uncertain recollection of the subject matter, I accept Ponti's testimony and find the Respondents, after proper demand, refused to bargain collectively with Local 153. Although the Respondents in their answer do not deny the appropriateness of the bargaining units, counsel claims the inclusion of super- visors in the units renders them inappropriate, hence the Respondents were not obligated to bargain with Local 153. Obviously, counsel refers to Miller and O'Reilly, who were employed as office managers for Local 11 and the Fund, respec- tively. Baruta testified O'Reilly was employed as office manager, that she worked under her and that O'Reilly was the highest paid worker in the office. The super- visory status of an employee depends on whether he possesses authority to act in the interest of his employer in the matters and the manner specified in Section 2(11) of the Act which defines the term "supervisor." Apart from title and salary, which are not decisive of the question, there is no evidence to support the conclusion that Miller and O'Reilly were employed as supervisors as defined in the Act. By engaging in the above conduct the Respondents violated Section 8(a)(5) of the Act. The Respondents take the position that as Local 153 lost its majority status they were not impeded,by law from giving wage increases to their employees. I find, under the circumstances herein, that the Respondents by unilaterally granting wage increases to their employees in March 1959, thereby violated Section 8(a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondents 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 Respondents have engaged in and are engaging in unfair labor practices in violation of Section 8(a)(5) and ( 1) of the Act, I shall recom- mend that they cease and desist therefrom and take certain affirmative action designed to effectu-te the policies of the Act.li Upon the basis of the above findings of fact, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW I Chain Service Restaurant , Luncheonette & Soda Fountain Employees, Local 1', AFL-CIO, and Chain Service Restaurant , Luncheonette & Soda Fountain Em- ployees, Local 11 , AFL-CIO, Welfare Trust Fund , Murray Solomon, Administrator, an,l its trustees, constitute employers within the meaning of Section 2 (2) of the Act u ith respect to their own respective employees. l ime time engaging in anti-union solicitation may not constitute an unfair labor practice." Here, of course, there is no evidence or contention the Respondents had a no-solicitation rule. 11 I do not deem it essential , or practical, to require each of the trustees to sign the notice to be posted by the Fund As the trustees constitute the governing body of the Fund they may designate one of their number to sign the notice as representative of the Fund and the trustees. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local 153, Office Employees International Union, AFL-CIO, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 3. All office and clerical employees of Local 11 employed at its offices in New York, New York, exclusive of all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. All office and clerical employees of the Welfare Trust Fund employed at its offices in New York, New York, exclusive of all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 5. Local 153, Office Employees International Union, AFL-CIO, was, on December 15, 1958, and at all times thereafter has been, the exclusive representative of the employees in each of the above-described units for the purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 6. By refusing to bargain collectively with Local 153, Office Employees Inter- national Union, AFL-CIO, on or about December 15, 1958, and thereafter, as the exclusive representative of the Respondents ' employees in the respective appropriate bargaining units, the Respondent Chain Service Restaurant, Luncheonette & Soda Fountain Employees, Local 11, AFL-CIO, and the Respondent Welfare Trust Fund, Respondent Murray Solomon, administrator of the Fund, and Respondent trustees, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 7. By unilaterally granting wage increases to their employees the Respondents thereby violated Section 8(a) (5) and (1) of the Act. 8. By sponsoring and sanctioning the circulation among their employees of a peti- tion of resignation from Local 153, and by threatening employees with discharge if they refused to sign the petition or promising benefits if they did so, the Respondents thereby violated Section 8 (a)( I) of the Act. 9. 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.] George F. Joseph Orchard Siding Inc. and Mildred E. David. Case No. 19-CA-f076. August 14, 1961 DECISION AND ORDER On March 29, 1961, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the Charging Party filed exceptions to the Intermediate Report, and Respondent filed an answer to the exceptions. The Board i 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 In- termediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] 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 Leedom]. 132 NLRB No. 76.