Precrete, Inc.

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2 (6) and' (7) of the Act. 2. The General Counsel has not sustained the allegation of the complaint that Respondent violated the Act by its discharge of Charles Joseph Pailes. 3. The General Counsel has sustained the allegations of the complaint that Respondent violated Section 8 (a) (4) and (1) of the Act by its discharge of Francis Lowe. 4. The aforesaid violation of the Act is an unfair labor practice affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial 'Examiner 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 discriminate against any employee in the hire or tenure of his employment for filing charges with the National Labor Relations Board, or in any other manner interfere with, restrain, or coerce our employees in the exer- cise of any of the rights guaranteed to them under Section 7 of the aforesaid Act. WE WILL make Francis Lowe whole for any loss of pay he may have suffered for the period from November 15 to 20, 1960, as a result of the termination of his employment. REDWING CARRIERS, INC., 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. Precrete, Inc. and Thomas Monahan, James Farrell, Alexander Chrust, Martin Flaherty, Robert Scharf, Robert Murfitt, George Bove, and Michael Reddy and Local 46, Wood, Wire and Metal Lathers International Union ; AFL-CIO. Cases Nos. 2-CA-7184-1, £-CA-7184-2, 2-CA-7184-3, f-CA-7184-4, s-CA- 7184-5, 2-CA-7184-6, 3-CA-7184-7, 2-CA-7184-8, and 2-CA- 7184-9. August 15, 1961 DECISION AND ORDER On December 22, 1960, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the un- fair labor practices alleged in the complaint and recommending that said complaint be dismissed in its entirety, as set forth in the Inter- mediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report, together with supporting briefs. 132 NLRB No. 91. PRECRETE, INC. - 987 The Board 1 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 Intermedi- ate 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, with the following modifications: We agree with the Trial Examiner for the reasons set forth in the Intermediate Report that the Respondent did not, in violation of Section 8(a) (3) and (1), unlawfully terminate the employment of the wire lathers nor refuse to bargain with the Local 46 as their collective-bargaining representative in violation of Section 8(a) (5) of the Act. The main contention of the General Counsel appears to be that the Respondent, upon reopening its plant on January 5, 1961, to complete certain contract work which it had not otherwise expected to complete within the near future, was under an obligation to notify the Union to that effect and inform it of whatever employment opportunities existed for the lathers. While it is clear, as the Trial Examiner found, that the Union made no specific demand for bargaining or information relative to avail-, able employment after the Respondent unexpectedly reopened its plant, we do not think the absence of such demand need necessarily be the controlling consideration. It is clear that the parties, as the Trial Examiner found, had bargained to a good-faith impasse. The Respondent had repeatedly informed the Union that it could not con- tinue to operate profitably at the rates demanded by the Union for its wire lathers, and that the unfavorable operating situation was respon- sible for the Respondent's decision on December 30, 1960, made in good faith, to liquidate its operations and attempt to reorganize on a more rational basis in view of the competition it had to meet. In such circumstances, when the Respondent reopened its plant to complete its unfinished contracts, it would have been unreasonable to expect it to resume operations on the unsound economic basis, which existed before the shutdown, by reemploying the wire lathers. It cannot therefore be said that any employment opportunities existed for the lathers with respect to which the Union was entitled to be informed. Moreover, in view of the Union's steadfast refusal over a period of years to modify its wage demands, a position which had already led to the aforementioned impasse in bargaining, to have required the Respond- ent to notify the Union in such circumstances would have required it to engage in a completely futile act. [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 threelmember panel [Members Leedom, Fanning, and Brown]. 988 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before W. Gerard Ryan, the duly designated Trial Examiner, in New York City on May 16, 17, 19, 20, 23, and, 24, 1960, on the con- solidated complaint of General Counsel and the answer of Precrete, Inc., herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(1), (3), and (5) of the Labor Management Relations Act, 1947, as amended, 61, Stat. 136, herein called the Act. The General Counsel and counsel for, the Re- spondent participated in oral argument. Counsel for the Respondent filed a brief. Upon the entire record,' and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times herein mentioned, a New York cor- poration with its principal office and place of business at 130-01 Northern Boulevard, Corona, New York, and an office at its plant located at the foot of 31st Street, Astoria, Queens, New York, herein called the Astoria plant, where it has been engaged in the manufacture, sale, and distribution of prestressed concrete and related products used in piers, buildings, bridges, and related construction projects. During the year ending December 31, 1959, the Respondent, in the course and conduct of its business opera- tions, caused to be purchased, transferred, and delivered to its Astoria plant, steel wiring, cement, and other goods and materials valued at in excess of $250,000, of which goods and materials valued at in excess of $250,000 were transported to said plant in interstate commerce directly from States of the United States other than the State of New York. During the year ending December 31, 1959, the Respondent, in the course and conduct of its business operations, caused to be manufactured, sold, and distributed at its plant products and furnished services valued at in excess of $750,000, of which products and services directly related to national defense, valued at in excess of $600,000, were manufactured, sold, and distributed and furnished pursuant to subcontracts with various contractors which utilize said products in the performance of their contracts with various branches of the United States Govern- ment. I find that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 46, Wood, Wire and Metal Lathers International Union , ,AFL-CIO, is, and has been at all times material herein , a labor organization within the meaning of Section 2 (5) of the Act. International Hod Carriers , Building and Common Laborers Union of America, AFL-CIO, Local 1175, herein called the Laborers Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES The consolidated complaint, as amended, in substance alleged that in violation of Section 8(a)(3) and (1) of the Act the Respondent discharged Alexander Chrust, Martin Flaherty, Thomas Monahan, Robert Murfitt, Robert Scharf, and Michael Reddy on December 18, 1959; George Bove on December 24; and James Farrell on December 30, 1959, and has failed and refused to recall or reinstate said employees to their former or substantially equivalent positions or employment, (1)' because said employees joined or assisted and were members of Local 46 and engaged in other concerted activities for the purpose of collective bargaining and mutual aid and 'At the hearing the complaint was amended as follows : In paragraph 4(a), change "1960" to "1959". In paragraph 8(a) change "Michael Reddy, December 24, 1959 ," to "Michael Reddy, December 18, 1959". In paragraph 9 (b) Insert "because" before the word "said". In paragraph 11, "Section (a)" should read "Section 9(a)" After close of the hearing, the Respondent moved to correct specified- errors in the transcript. There being no objection thereto, I grant the motion. The motion Is received in evidence as Trial Examiner 's Exhibit No. 1. PRECRETE, INC. 989 protection; (2) because said employees were not members of the Laborers Union, and were not referred to employment by, and did not have clearance from, the Laborers Union; and (3) in order to undermine Local_46's majority.and to avoid bargaining with Local 46 as the exclusive bargaining agent of the metal lathers em, ployed by the Respondent. The complaint further, alleged that the metal lather employees constituted art appropriate unit and that at alltimes since 1954, Local 46 has been and now is the representative for the purposes of collective bargaining of the metal lathers in said unit. The complaint alleged further that, in violation of Section 8(a)(1) and (5) of the Act, the Respondent since on or about and after December 1, 1959, has refused to bargain with Local 46 in that: (a) On or about December 1 and 24,'1959, and at various times thereafter-'and between said dates, the Respondent for the purpose of evading its duty to bargain with Local 46 falsely and in bad faith represented to Local 46 that it planned to shut down its operations nand go out of business;. (b). since on or about December 1, 1959, the Respondent has refused to negotiate and discuss in good faith with Local 46 with respect to the discharge of all its metal lathers and related matters; ( c) since on or about December 1, 1959, the Respondent has refused and continues to refuse to fur- nish Local 46 correct information relating to available employment for its metal lathers and related matters; (d) on or about January 4, 1960, and at various times thereafter, the Respondent unilaterally changed existing wage rates and other terms and conditions of employment of employees engaged in metal lather work; and (e) on or about December 18, 24, and 30, 1959, the Respondent discharged employees in the above-described unit and thereafter failed and refused to recall or reinstate them in order to undermine Local 47's majority and to avoid bargaining with Local 46 as the exclusive representative of the metal lather employees. The answer denied the material allegations of the complaint and as an affirmative defense pleaded that the metal lather employees did not constitute an appropriate unit. The Respondent, which is engaged in the manufacture of prestressed concrete con- struction members and other products, was incorporated in 1954 for the purpose of performing a contract for Merritt, Chapman & Scott. Innis O'Rourke, Jr., has been president of the Respondent since its incorporation. That contract provided that the Respondent employ "only such labor as will work in harmony with other trades both in your yard and at our jobsite." Pursuant to that provision Respondent hired building trades labor including wire lathers who were members of Local 46, dock builders rather than carpenters because the job was a pier or wharf, engineers, oilers and laborers. Following completion of the above contract, Respondent's next job was for Con- solidated Edison Co., and Respondent proceeded to do their job using laborers en- tirely and no building trades labor. This brought forth objections from Brian Dillon, the business agent for Local 46, with the result that Respondent went back to using building trades labor after conversations with representatives of other building trades unions and with Consolidated Edison Co. The Respondent, however, did not enter collective-bargaining agreements with the building trades unions, including Local 46, although it did later enter into a collective-bargaining agreement with Local 1175, the Laborers Union herein referred to. In 1954 the Respondent's only competitor was a firm named Formigli in Phila- delphia. Between 1954 and 1957, however, its competitors increased, including firms in New Haven, Connecticut; Trenton, New Jersey; and Syracuse and Albany, New York. The Respondent's competitors were set up on a shop rather than on a craft basis and paid shop rates which ranged between approximately $1.50 to $2.85 per hour, which was lower than the wages paid by Respondent whose average wage was $4.17 per hour plus 27 cents per hour in fringe benefits. As a result of the disadvantage that Respondent suffered in its labor costs it began to lose bids to its competitors and from a profit of over $32,000 at the end of 1956 Respondent declined to a profit of over $12,000 at the end of 1957. In 1957 Re- spondent approached Charles Johnson, who was head of the Concrete Alliance which embraced the building trades • union whose members were employed by Re- spondent and who was an official in the Carpenters Union and the Dock Builders Union which latter represented the dock builders employed by the Respondent. Respondent through its approach to Johnson sought to make an arrangement where- by it would pay its employees at shop rates or have the employees who were mem- bers of the various building trades unions relax their jurisdictional lines in the plant or both. Although this approach was not made directly to Local 46, it was made with the full knowledge of Local 46, whose business agent, Brian Dillon, indicated that the settlement of Respondent's problems would have to come through the Con- 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crete Alliance. Further approaches to Johnson on the same subject continued into 1958 without success. In June 1958 Respondent met with some of the representatives of its employees to discuss the question of arranging for a shop rate and the relaxation of jurisdic- tional lines in its plant. Among those present at the meeting were Matthews, Tier- ney, and Dillon from Local 46. At that time Respondent offered to put a roof over its entire plant in order to keep production going more steadily, in the hope that this would induce the representatives of the various trades to make concessions with respect to shop rates and jurisdiction but no agreement was reached and the matter was put off until the next meeting of Concrete Alliance. For the year 1958 Respondent suffered a loss of over $23,000. The Respondent then employed John Garvin, a labor relations consultant, to represent it in negotiat- ing a shop-type agreement with the representatives of its employees. In May 1959 a meeting was held with the representatives of the unions involved at which Tierney represented Local 46. At that meeting the Respondent pointed out that it needed shop rates and shop conditions in order to stay in business but again no agreement was reached. Meanwhile during this entire period Respondent had often brought up the ques- tion of shop rates and relaxation of jurisdictional alliance with Dillon, the business agent of Local 46. The only change in Respondent's operations that occurred during that period, however, was that certain work was transferred from the labor- ers to the wire lathers, which further enhanced Respondent's competitive disadvan- tage since the laborers were receiving from $2.45 to $2.65 per hour compared with $4 to $4.50 per hour for the wire lathers. In 1959 the Respondent lost every competitive bid without exception and in order to secure business was forced to resort to counterproposals which would vary the original design of the product into a design that could be manufactured more cheaply. But even in these cases the counterproposed design as well as the original design would frequently be produced more cheaply by Respondent's competitors. Following a - number of other discussions with representatives of the various unions whose members were employed by Respondent, including wire lathers, Gar- vin held a meeting in November 1959 with representatives of the dock builders, operating engineers, and wire lathers, including John Tierney, a business agent of Local 46. At that meeting Garvin distributed a memorandum which he had previ- ously prepared, which listed the Respondent's competitors and the lower rates they paid their employees, outlined Respondent's weakened financial condition, and sug- gested various alternative proposals which might help solve Respondent's problems. These alternatives included: (a) The employment of only laborers and operating engineers ; (b) the employment of 5 dock builders, 5 wire lathers, 10 laborers, and 3 engineers at a rate of $3 per hour; and (c) the employment of 5 dock builders, 5 wire lathers, and 3 operating engineers at $3.25 and 12 laborers at $2.65 per hour with a guarantee of 200 days work per year. The meeting lasted for 5 hours but no solution was reached. Following that meeting which had failed to bring any solu- tion to its problems Respondent's directors decided to liquidate the Company. A letter was prepared dated December 1, 1959, which was given to the employees and sent to each union which had members employed in Respondent's plant. This letter, like the memorandum mentioned above, listed Respondent's numerous competitors who were paying shop rates and set forth Respondent's financial condition, includ- ing a list of the numerous bids Respondent had lost to competitors paying lower wage rates. The letter went on to state Respondent's decision to liquidate and continued: Despite the, fact that the Company has made a final decision in connection with their action to close down their business, even now they would prefer not to take the action if its problems could be solved. The Company believes that it might be possible to pay a maximum rate of $3. while this rate is higher than those of our competitors we are willing to try an arrangement along these lines for a year when we will then be able to better assess how we stand competitively. If the employees feel that this may be a basis for further discussions, they should individually take up the matter with their delegates. Respondent received no response to that letter and several days later Garvin again met with representatives of Local 46. At that meeting were Matthews, business manager of Local 46, Dillon, Tierney, and Richardson. Although the record dis- closes some disagreement as to the exact content of the discussion, it is clear that the representatives of Local 46 had seen the Garvin memorandum prior to the meet- ing or had received copies of it at that time. The record shows that the meeting ended at an impasse. PRECRETE, INC. 991 At the beginning of December 1959 the Respondent had six jobs outstanding, two jobs for Gull Contracting Co., Inc., for the New York Port Authority, one job for Brookfield Construction Co., also for the Port Authority, one job for Ryan-Turecamo for the New York Transit Authority; one job for Corbetta Construction Co., for the New York City Department of Marine and Aviation, and one job for Westcott, for the State of New York. By December 18 one of the Gull jobs was completed and delivered and on the second Gull job all the reinforcing which was the work, of the wire lathers was completed. The Westcott job was in the same status. The Corbetta job was still in the future and the Brookfield job had only 12 beams re- maining which would not be needed until July or August 1960. Consequently, Respondent laid off 11 wire lathers, 6 of whom are individual Charging Parties herein, and also laid off 6 dock builders. The reason for these layoffs was lack of work. After December 18 Respondent retained three wire lathers on its payroll because the wire lather foreman, Warren Reddy, believed that the Ryan-Turecamo job re- quired all three. However, Respondent's plant superintendent, John B. Johnson, believed the job could be done with two men since that was the number that had been used all along and on December 22 or 23 Johnson asked Warren Reddy if he could not get along with two wire lathers. On December 23 Warren Reddy agreed to the layoff of one of the wire lathers, George Bove, and on December 24 after a conversation with Dillon, the Local 46 business agent, Bove was laid off for lack of work. On December 24 Respondent sent a letter addressed to each of the unions that had members working in Respondent's plant. This letter stated that beginning on December 28 Respondent would terminate its production employees. It continued: Thereafter, the company intends to seek additional capital and to reorganize its operations in the hope that it may recommence production. If the com- pany's efforts are successful it hopes to reopen its manufacturing operation, and to do so in accordance with the prevailing shop wage rate conditions exist- ing in the industry and its contractual obligations for the Hod Carriers and Common Laborers Union, Local 1175, affiliated with the International Hod Carriers and Common Laborers Union of America. As set forth above on December 24 the only two jobs remaining in the Respond- ent's plant were the second Gull job and the job for Ryan-Turecamo. The Brisco (Holmdel) job was never intended to be completed in the Respondent's plant and the Corbetta job was still in the future. Respondent also had considerable inventory on hand for both the Gull and Ryan-Turecamo jobs, was short of cash, and had bank loans coming due. On December 30 Respondent shut down and laid off its remaining two wire lathers, including the individual complainant, James Farrell. This date was chosen because it was the end of a payroll week and it was expected that the shutdown would last at least a month. Before and after the letter of December 24 Respondent took steps to settle its affairs. During that period Raymond International and Flintcoat were interested in buying Respondent's business and on or about December 16 Respondent signed a brokerage contract for the sale of its business with Glore-Forgan and Company, a New York broker. Garvin also approached Ebasco to see if it was interested in, purchasing the Respondent's business but efforts to sell were unsuccessful because of Respondent's unsettled labor situation. Respondent also contacted firms in Philadelphia and in New Haven to explore the possibility of arrangements for the performance of its outstanding contracts. The Respondent also contacted the bank holding its outstanding loans and sought to obtain renewals and assurances that further capital would be available if needed to close out the outstanding jobs. Prior to Respondent's shutdown, however, and unknown to Respondent the New York Port Authority on December 21 wrote to Gull Contracting Co. Inc., and advised Gull that it was behind schedule in its contract. In order to expedite its perform- ance Gull then decided to erect piecemeal, that is, in different locations on the project rather than straight along from beginning to end as had been originally anticipated. Respondent was advised of this change in plans on January 4, 1960. Since the girders and beams on the Gull job were numbered and not generally interchangeable this required the delivery of beams from Respondent which it had not been anticipated Gull would need for some time. Because of pressure from Gull, Respondent on or about January 5 reopened its plant. At the same time because it would have been uneconomical to produce only for the Gull job, Respondent also recommenced production for Ryan-Turecamo. Upon reopening its plant on January 5 Respondent did not recall wire lathers or dock builders but used only laborers, because Respond- ent had a contract with Local 1175 and was unable or unwilling to continue to pay 992, DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rates demanded by Local 46 . Respondent continued to operate in this manner until February 8, 1960, after which it was shut down by a picket line maintained by Local 46. At no time has the Respondent had a collective-bargaining agreement with Local 46. The Alleged Violation of Section 8(a)(3) I find that the Respondent did not violate Section 8(a) (3) of the Act in the discharges in December 1959 for the record shows that the termination of employ- ment was for lack of work. There is not a scintilla of evidence that the Respondent acted from any discriminatory motive violative of the Act, which is to encourage or discourage union membership by means of discrimination. I further find that the failure of the Respondent to reinstate wire lathers after the plant reopened in January 1960 was not discriminatorily motivated in violation of Section 8(a)(3). Respond- ent was motivated by economic reasons and not by any unlawful motive to encourage or discourage union membership. Brian Dillon, a representative of Local 46, testi- fied there was no animosity between Respondent and Local 46 and that their dif- ference was,the question of pay rates. Local 46 and the Respondent had reached an impasse in their discussions of the pay rates. The Respondent following that impasse did not recall the wire lathers in January because, for economic reasons, it refused to pay any longer the union rate for lathers, and when it reopened had the work performed by its laborers and additional help was supplied by laid-off laborers on the seniority list. The fact that the wire lathers were members of Local 46 and the laborers were members of the Laborers Union was only incidental; the real reason was that the Respondent decided the union rate for lathers was too high for Respondent to pay and continue to operate profitably. Accordingly, I find there was no violation of Section 8(a) (3) and (1) of the Act since there was no interference, restraint, or coercion of the employees in their rights to self-organization or collective bargaining and no discrimination to encourage or discourage membership in a union. The complaint in that respect should be dismissed. The Alleged Violation of Section 8(a)(5) Appropriate Unit The General Counsel contends, nand I agree, that it is not necessary where violation of Section 8(a) (5) is alleged to prove that a unit is the most appropriate or the only appropriate unit; that it is sufficient if the unit is an appropriate unit. Here the record in my opinion shows that the metal-lather employees as alleged in the com- plaint constituted an appropriate unit. The Respondent's plant was operated from 1954 to December 30, 1959, on a separate craft basis and one of the separate crafts was the metal lathers. Each of the trades had its own foreman with jurisdiction and authority only over those employees who were members of his unit. Separate kvork jurisdictions were strictly maintained and when at one time the laborers did lathers' work, the lathers through their representatives objected successfully. It is also true that the Respondent in time past attempted to change this separate craft basis to an integrated unit without success. The Respondent also introduced evi- dence that here the wire lathers did not exercise the full gamut of their skills and the work done by the wire lathers here is such that it could be done by laborers after a short period of instruction. Upon consideration of all the evidence I conclude and find that, as alleged in the complaint, the metal lather employees of Respondent employed at its Astoria plant, exclusive of all other employees and all supervisors as defined in Section 2 (11) of the Act, constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The record shows that for several months prior to and during December 1959 the Respondent bargained in good faith with Local 46 both directly and through Con- ,crete Alliance. The subject of the bargaining in the meetings was the pay rates paid by the Respondent and possible alternative solutions to the problems proposed by Respondent. All proposals advanced by Respondent were always rejected by Local 46. I find that the Respondent did not (as alleged in the complaint) falsely and in bad faith represent to Local 46 that it planned to shut down and go out of business. The plant wasshut down on December 30, 1959, in accordance with notice given to Local 46 by Respondent both before and in its letter of December 24. Any inference to the contrary that might be drawn from the fact that Respondent reopened on January 5, 1960, is overcome by the explanation, which is uncontradicted, and which I credit, that unknown to Respondent prior to January 4, 1960, the New York Port Authority on December 21 had written to Gull Contracting Co., Inc., and advised Gull that it was behind schedule in its contract. In order to expedite its THOMPSON RAMO WOOLDRIDGE, INC. (DAGE TV DIV.) 993 performance Gull then decided to erect piecemeal , that is, in different locations on the project, rather than straight along from beginning to end as had been originally planned. Since this required the delivery of beams which it had not been anticipated Gull would need for some time, Respondent, because of pressure from Gull, re- opened its plant . Accordingly, I find that the Respondent truthfully and in good faith notified Local 46 in the letter of December 24 that it intended to close. There is no evidence to support the allegation in the complaint that since on or about and since December 1, 1959, the Respondent has refused and continues to refuse to negotiate and discuss in good faith with Local 46 with respect to the dis- charge of all its metal lather employees and related ,matters. The record shows that the Respondent bargained and attempted to bargain in good faith with Local 46 until finally an impasse was reached. There is no evidence to support the allegation in the complaint that on or about December 1, 1959, and at various times thereafter to date, the Respondent has refused and continues to refuse to furnish Local 46 correct information relating to available employment for its metal lather employees and related matters. No- where does the record show any demand or request for such information by Local 46. 1 find no violation of Section 8(a)(5) by the fact that the Respondent, on and after reopening its plant on January 5, 1960 , unilaterally , changed existing wage rates, and other terms and conditions of employment of employees engaged in metal lather work because all this was done following a genuine impasse in bargaining negotiations. I further find that the Respondent did not discharge the aforesaid employees and thereafter failed and refused to recall or reinstate them in order to undermine Local 46's majority, and to avoid bargaining with Local 46 as the exclusive representa- tive of its metal lather employees. I have found, supra, that the Respondent was not motivated by discriminatory motives in discharging them and not recalling them in that the Respondent thereby practiced no discrimination to encourage or discourage membership in a union and accordingly did not violate Section 8 (a)(3). Similarly here in discharging them and not recalling them thereafter, the Respondent's reason was entirely economic and Respondent's motive was not to undermine Local 46's majority or to avoid bargaining with Local 46 as the exclusive representative of its metal lather em- ployees. I therefore conclude and find that the Respondent did not violate Section 8 (a) (5) as alleged in the complaint. [Recommendations omitted from publication.] Thompson Ramo Wooldridge, Inc. (Dage Television Division) and General Teamsters, Chauffeurs & Helpers, Local Union No. 298, Charging Party and Dage Employees Association, Party in Interest. Case No. 13-CA-3592. August 16, 1961 DECISION AND ORDER On February 27,1961, Trial Examiner A. Norman Somers 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' i The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and brief , adequately presents the issues and the positions of the parties No exceptions were filed with respect to the Trial Examiner's finding that the Respond- ent violated Section 8(a)(3) and (1) of the Act by the discharge of Treece, and Section 8(a) (1) by promulgating a broad no -solicitation rule. These findings are hereby adopted pro forma. 132 NLRB No.,80.