Georgia-Pacific Corp.

GEORGIA-PACIFIC CORPORATION 885 seniority and other rights and privileges previously enjoyed , and will make whole the above-named employees and James A. Mullins for any, loss of pay suffered by reason of our discrimination against them. All of our employees have the right to form, join, or assist the above-named labor organization or any other labor organization, as well as the right not to do so. HOWARD QUARRIES, INC., Employer. Dated-- ----------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces.- This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City , Missouri , Telephone No. Baltimore 1-7000, Extension 731, if they have any questions concerning this notice or compliance with its provisions. Georgia-Pacific Corporation and International Woodworkers of America, Local Union 3-116, AFL-CIO . Case No. 36-CA-1378. January 11, 1965 DECISION AND ORDER On July 27, 1964, Trial Examiner Louis S. Penfield issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in any unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in. his attached Decision. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Exam- iner's Decision. Pursuant to the provisions of *Section 3'(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Brown and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard before Trial Examiner Louis S. Penfield in Coos Bay, Oregon , on March 11 , 1964, upon a complaint of the 150 NLRB No. 88. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel and answer of Georgia-Pacific Corporation, herein called the Respondent.) The issues litigated were whether Respondent violated Section 8(a) (1) and (5) of the National Labor Relations Act, as amended, herein called the Act.2 Upon the entire record, including consideration of briefs filed by the parties,a and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Georgia corporation engaged in the manufacture of timber prod- ucts in various States of the United States. The so-called Bunker Hill sawmill opera- tion of Respondent at Coos Bay, Oregon, is the only operation involved in this pro- ceeding. Prior to the lease of a portion of its Bunker Hill sawmill operation in May 1963, Respondent had annually shipped from Coos Bay, Oregon, lumber and lumber products valued in excess of $100,000 to points located outside the State of Oregon. Subsequent to the lease it continued to ship to out-of-State points products valued in excess of $100,000. I find that at all times material to this proceeding, Respondent was engaged in a business which affects commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, Local Union 3-116 , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement The complaint as amended alleges, in substance, that Respondent violated Section 8(a) (1) and (5) of the Act by leasing part of its sawmill on or about May 15, 1963, to Coos Head Timber Company, herein called Coos Head, without notifying the Union, or giving it an opportunity to bargain, and that thereafter it refused to meet and bargain with the Union regarding the disposition of the employees affected by the lease. It is more specifically alleged that Respondent refused to bargain by bringing about the termination of employees in the affected departments without meeting with the Union or otherwise affording these employees an opportunity to exercise their plant seniority rights. Respondent admits that it leased certain of its facilities to Coos Head, and that it did not notify the Union before making the leases, but it denies that by this, or any subsequent conduct, it refused to bargain with the Union within the meaning of the Act. In the Coos Bay area Respondent has for some years maintained a logging opera- tion, a plywood mill, and a sawmill operation. It has had separate contracts with the Union covering employees working in each of these operations. Prior to May 1963, the sawmill unit and contract covered employees in a sawmill, in a planing mill, in a hardboard plant, and in related shipping, maintenance, and power supply departments. In May 1963, each of these three contracts with the Union was open for negotiation concerning modification. A joint three-unit negotiation meeting was held on May 23, 1963, at which opening positions of both parties concerning overall wage and other questions were discussed, but no agreement was reached, and it was understood by all parties that further meetings were to be held. The circumstances giving rise to the charges in this case do not concern the overall negotiations, but relate only to special problems involving employees in the sawmill unit. B. The lease and the negotiations prior to the terminations of June 3, 1963 It is undisputed that commencing on or about May 9, 1963, Respondent opened discussions with Coos Head concerning the lease of certain of Respondent's dock and storage space. Within a week after this, discussions with Coos Head were expanded 1 The complaint issued on January 16, 1964, and is based on a charge filed on Sep- tember 11, 1963. Copies of the complaint and charge have been duly served upon the Respondent. 2 The complaint as issued also alleged a violation of Section 8(a) (3) of the Act. At the opening of the hearing the Trial Examiner granted an unopposed motion to strike the allegations relating to Section 8(a) (3). s Briefs were filed by the General Counsel and by Respondent. The Charging Party, although given an opportunity to do so, filed no brief. GEORGIA-PACIFIC CORPORATION 887 to include the lease of certain portions of the sawmill operation. On May 22, 1963, the -basic terms of both leases had been agreed upon, and on the following day two leases were signed, one, a dock and storage space lease for 5 years with a renewal option, and the other a sawmill facility and site lease for a 6-month period with a renewal option.4 The effect of these leases was to transfer to Coos Head for its own operation 7 of the 12 departments of Respondent which were covered by the sawmill contract with the Union.5 It had also been agreed between Respondent and Coos Head that Coos Head would offer employment in the leased departments to all of Respondent's employees then working there. The Union received no official notice of the leases until May 24, 1963, at which time Ernest Tomberg, special services director for Respondent and its principal offi- cial in charge of employee relations, visited the office of the Union and met with Daniel Kelly, then financial secretary and business agent of the Union, and Ray Britt, another official of the Union.6 Tomberg and Kelly are in accord that at this time Tomberg informed the Union of the leases, of their effective date, of Respond- ent's plan to terminate employees in affected departments, and of the agreement by Coos Head to offer such terminated employees jobs. The parties discussed various problems that might arise as a result of the proposed changes. Kelly suggested that possibly some of the employees with considerable seniority might not wish to go to the new operation and forfeit their accrued seniority rights. Tomberg stated that this was an issue which would arise only when employees declined the offer from Coos Head, and since none might do so, he suggested that further consideration of this possibility be deferred until such time as the issue took definite shape. Kelly appears to have acquiesced in Tomberg's proposal for he requested no meeting on the issue at the time. It is clear, however, that Tomberg expressed no unwillingness to meet or to consider it at a later time. Subsequent to this May 24 meeting, Kelly received reports that some of the employ- ees had become concerned about the proposed change, and the effect that it would have on their seniority status. On May 29, Kelly apprised Tomberg of this con- cern, and urged a meeting on the problem before Coos Head took over. Because of the intervening holiday and the press of other business, Tomberg told Kelly that he would be unable to meet with him prior to the time that Coos Head commenced operations.? Members of the union plant committee also made an effort to meet with representatives of Respondent prior to the date of the takeover by Coos Head, but were equally unsuccessful. On June 3, the actual date that Coos Head com- menced to operate the affected departments, Union Representative Britt called Tom- berg and asked what Respondent proposed to do about "the fellows that refused to go to Coos Head ." and Tomberg told him that Respondent had felt that all would go over, but if such were not the case "it would be well to discuss the matter." Britt and Tomberg, however, did not arrange a meeting on this problem at that time. On June 1 the leases became effective and Coos Head commenced actual operation of the leased departments on June 3. On June 3 Respondent terminated all employees in the affected departments, and, as it had agreed to do, Coos Head offered them employment with it in the same jobs on which they had been working for Respond- * In December 1963 Coos Head purchased the sawmill outright from Respondent and extended the leases on the sites for longer terms. The sawmill contract with the Union specified a coverage of 12 departments at the time. The leases affected employees in the following departments with the numbers appearing before each being the number designations listed in such contract: 1, main mill including sorting, sheds and timber sheds, 3, lath mill , 6, mechanical department ; 7, log boom department ; 9, planing mill ; 10, tally man, 11, graders. After the leases had been consummated, Respondent continued to operate the following departments: 9f'electri- cal, steam, air, water, and lubrication ; 4, filing and grinding department ; 5, construc- tion and maintenance department including bull gang; 8, shipping and transportation department ; and 12, hardboard department. Departments 2 and 5, although not in- cluded in the leases, ceased to function sometime after the effective dates of the leases partly due to the curtailment of the remaining operation brought about by the leases. 6 Tomberg testified that this meeting had been prearranged at the three-unit bargaining session held on May 23. Kelly denies this, and states that Tomberg just appeared at his office without prior appointment. I find it unnecessary to resolve this conflict since it appears to have no material bearing on the ultimate issues. 7 Tomberg gave no testimony as to this effort of Kelly to arrange a meeting. He testi- fied that Britt's call on June 3 was the first he had heard from the Union since May 24 He does not specifically deny the earlier request and I credit Kelly's version as set forth above. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent. Eight employees declined to accept employment with Coos Head, indicating that they desired to exercise what seniority rights they might have with the Respond- ent as laid-off employees. The complaint alleges that Respondent has not fulfilled its statutory duty to bar- gain and a central point at issue in this connection' relates to bargaining concerning alleged seniority rights of the employees terminated which arise under the contract. Article VIII of the contract contains detailed provisions regarding job classification, departmental, and plantwide seniority. Pertinent provisions insofar as they affect this proceeding are as follows: - After applying departmental seniority in case of reduction in forces, employees who are not entitled to a job on the basis of department seniority may exercise plant seniority. Plant seniority means the length of time employed at the plant. In case of discontinuation or layoff of an entire department or in the case of curtailment throughout the plant, the men shall be laid off in the inverse order in which they were hired on a plant basis. In all cases of a general layoff the plant committee shall be consulted by the employer prior to the layoff and the list of those who are to be laid off shall be jointly agreed to. When rehiring occurs, those employees laid off last shall be reemployed first, provided they are available. The record shows that Respondent and the Union had had occasion to be concerned with layoffs in numerous instances. It was shown that as recently as in April 1963 Respondent had laid off a night shift and that in accordance with the above provi- sions of the contract, it had notified the plant committee, met with it, and reached an agreement as to those who were to be laid off. Respondent acknowledges that prior to the terminations of June 3, 1963, it had not notified the plant committee or con- ducted dealings with any union representative except as set forth above. It asserts that it failed to do this because it did not regard the leases as bringing about layoffs within the meaning of the contract, but as occasioning outright terminations not subject to this section. The Union insists that the seniority provisions of the contract govern. C. The bargaining after the terminations On May 28 Respondent had sent the Union a written proposal purporting to embody additional changes in the management proposals originally submitted at the May 23 contract negotiation meeting. These additional changes related only to the sawmill unit and were occasioned because of the leases and the consequent elimina- tion of departments that had formerly been covered in that unit. According to Tomberg, shortly after the terminations he had a telephone conver- sation with Kelly. A three-unit negotiation meeting was already scheduled for June 5, 1963, and Tomberg suggested to Kelly on the telephone that "we use the June 5th meeting to discuss the seniority problems in the transfer." Tomberg states that Kelly replied that he did not favor this, but felt that they "should arrange another meeting." Tomberg urged that "All of management would be there and it would be better to do it then." Tomberg concedes, however, that Kelly did not agree, and that tentatively he and Kelly arranged for a separate meeting on June 6 for the purpose of discussing the seniority problem.8 On June 5, 1963, the negotiating committees for each of the three units, together with Kelly and other union representatives, met with management officials as sched- uled. At the outset Respondent raised the question of the Coos Head transfer se- niority problem, but Kelly stated that he was not-prepared to discuss it at the time. Kelly then asked for Respondent's wage proposal, and management replied that it had no4new overall wage proposal to make Kelly stated that if such were the case their proposals were "rejected as submitted" and that "if that is all you have we'll discontinue negotiations." Kelly then asked, "Is the meeting of June 6 still on?" Tomberg replied that he would be unavailable on that date, at which point Respond- ent's counsel raised a question as to the purpose of any further meeting. The Union made no reply to this and its representatives departed.° 8Kelly did not testify directly concerning this telephone conversation, but his general testimony about the June 5 meeting and other matters is not in conflict with the version of Tomberg as related above . D Kelly places a somewhat different emphasis on what transpired. He recalls raising a query about a June 6 meeting on the seniority problem, but he does not recall Tomberg stating that he would be unavailable, and he construed the statement of counsel for Respondent to mean that it was Respondent's position that there was no point in a fur- ther meeting on any subject. Kelly does not contend, however, that he made an effort to schedule another meeting on the seniority problem at another time. GEORGIA-PACIFIC CORPORATION 889 Although the record is far from clear as to the details, apparently, following this meeting, there ensued an industrywide strike concerning wage issues, which involved Respondent's employees, among others. On August 8, 1963, the next meeting between management and the Union was held. It was both a three-unit negotiation meeting and a submeeting between Respond- ent and the Union regarding the seniority problem in the sawmill unit. General agreement was reached on the three-unit wage issue resulting in a settlement of the strike, with only certain details to be worked out later. The so-called subcommittee group, comprised of union officials, some employees, and Respondent's representa- tives, also met and discussed the sawmill unit seniority problem.1° At the August 8 meeting, and the three subsequent meetings held, the Union took the limited posi- tion that employees who had elected not to go to Coos Head should be placed upon a preferential list in accordance with their contract seniority for employment in that portion of the sawmill unit which Respondent was still operating. Respondent took a basic position that the terminations of June 3 had ended the seniority of employees in the leased departments whether or not they had transferred to Coos Head. It expressed willingness, however, to negotiate on the question of according terminated employees seniority, but specified that such negotiations must be broad enough to include all the employees terminated as a result of the leases, and must not be limited to seniority for only those employees who had refused to transfer to Coos Head. It was Respondent's position that to limit the discussion to a small group would subject it to charges of discrimination against others whose position was the same except for taking employment with Coos Head. The Union was not willing to expand the base for discussion in the manner suggested. Although the issue was discussed in four meetings, no understanding was reached inasmuch as the parties continued to disagree as to the base for negotiation.11 D. Discussion of the issues and concluding findings The General Counsel rests his case upon the somewhat narrow ground that Respondent did not fulfill its statutory duty to bargain because it did not notify the Union of its intention to lease the sawmill facilities until the leases had been con- summated, and thereafter failed or refused to meet with the Union prior to the ter- minations brought about because of the leases. In fact both General Counsel and Charging Party objected to the receipt of evidence into the record concerning bar- gaining after the terminations, for the reason that they considered the issue to have been joined at that point and subsequent bargaining to be irrelevant. As we have seen, Respondent admits that it did not consult with the Union before execution of the leases, and acknowledges that except for the May 24 meeting, it did not meet with the Union prior to the terminations. The General Counsel would also dilute the significance of the May 24 meeting by claiming that Respondent failed to meet with the plant committee as it had in the case of past layoffs pursuant to contract provisions, and that this showed an unwillingness to meet its bargaining obligation. The General Counsel relies in support of his contentions upon the principles estab- lished by the Board in Fibreboard Paper Products Corporation, 138 NLRB 550, enfd. sub nom. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, etc. v. N.L.R.B., 322 F. 2d 411 (C.A.D.C.), and Town & Country Manu- facturing Company, Inc., et al., 136 NLRB 1022, enfd. 316 F. 2d 846 (C.A. 5). Respondent defends its conduct by asserting that the Union at no time objected to the leasing as such, and that the record establishes that Respondent was at all times willing to meet with the Union concerning the seniority rights of the employees affected, and that in fact it did meet and bargain with the Union subsequent to the terminations on this very subject. Thus Respondent argues that the totality of is conduct both before and after the leases shows a fulfillment of its statutory duty to bargain. It cites, in support of this claim, Hartmann Luggage Company, 145 NLRB 1572. 10 Apparently the employee representatives of the Union at the August 8 and subsequent meetings were members of the negotiating committee and did not comprise the plant committee as such. "The complaint alleges that Respondent also violated Section 8(a)(5) by refusing to process a grievance filed by R. J. Willis protesting that he was terminated without being afforded an opportunity to exercise plant seniority rights to bump an employee in a department retained by Respondent. The exact relationship of this grievance to the Coos Head transfer is not self-evident from merely reading it. Moreover, even assuming it be construed in the manner alleged, the General Counsel has failed to establish suf- ficient facts about its filing and its ultimate disposition to enable me to determine if Respondent actually refused to process it. Accordingly, I find that there is insufficient evidence to sustain this allegation of the complaint. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel makes no charge of discriminatory motivation in making the leases, or any claim of bad-faith bargaining other than might flow from a failure to meet before the terminations. The General Counsel correctly states that the Board has held in both the Fibreboard and the Town & Country cases that a decision to subcontract is a mandatory subject of bargaining, and that discussion with the statu- tory representative is required before subcontracting is undertaken.12 Although Respondent's conceded failure to meet with the Union before the execution of the leases might in some circumstances suffice to support a finding of refusal to bargain, this is not a necessary result. In Hartmann Luggage, an employer subcontracted a portion of its operation without notifying the Union. The Board agreed with the Trial Examiner that, before subcontracting, the employer had an obligation to bar- gain with the union which it had not fulfilled, but at the same time it upheld the Trial Examiner in holding that under all the circumstances the employer had not violated Section 8(a)(5) of the Act. In this connection the Board stated: The Trial Examiner found that the General Counsel, by establishing that the Respondent signed the subcontracting agreement with North Bay before advis- ing the Union of the pendency of its negotiations with that company, made out "at least a prima facie case of refusal to bargain." But he concluded nonethe- less that that violation was "cured" by reason of the Respondent's subsequent conduct, as set forth in the Intermediate Report. We agree with the Trial Examiner's ultimate conclusion that any prima facie showing of a violation in this case is overcome by other evidence, but, unlike the Trial Examiner, we rest our decision upon our evaluation of the Respondent's overall conduct, both prior and subsequent to the execution of the subcontracting agreement. The key question then in the instant case concerns Respondent's overall conduct. The failure to notify the Union before consummation of the leases is not enough standing alone, but, contrary to the assertion of the General Counsel, an evaluation of events after as well as before the hearing is essential. I find no merit in the contention that failure to meet with the plant committee, as such, weakens Respondent's defense. Respondent's explanation that it did not equate final terminations with layoffs as mentioned in the contract is not a wholly untenable view. However, I find no need to undertake a definitive contract interpretation, for even if we assume that the contract required notification of the plant committee, failure to do so does not necessarily mean a failure to fulfill the statutory bargaining duty. Respondent was only required to meet and bargain with responsible union representatives, and failure to follow exact contract requirements would at the most show only a disposition to avoid a reasonable approach. However, Respondent noti- fied and dealt with union representatives who had formerly worked closely with the plant committee in other negotiations with Respondent, and presumably these repre- sentatives could have brought the committee into the picture at any time had they deemed it significant. Yet neither at the May 24 meeting, or at any later time, do we have Kelly or any other union representative protesting the absence of the plant committee. I likewise attach little significance to Respondent's failure to meet with the Union prior to the terminations. It is true that both Kelly and the plant committee had both sought meetings before the terminations occurred, and presumably contemplated that they might take place at that time. However, the record shows no unwillingness of Respondent to meet before they took place, but only an inability to do so because of the press of other business. Respondent actually met with the Union on June 5, only 2 days after the terminations had occurred. By this time the basic issue had been sharply and narrowly drawn. The leasing, itself, although made without consulta- tion with the Union, was not the subject of protest, but the seniority status of those 'a Both the Fibreboard and Town & Country cases involved subcontracting. The Board does not appear to have considered an issue of the leasing of the premises, as in the instant case, as distinguished from subcontracting a portion of the work in question. However, in Esti Neiderman and Gizela Eisner, co-partners doing business as Star Baby Co., 140 NLRB 678, the Board held that where an employer terminated its operations for economic reasons without consulting with the statutory representative, it violated Section 8(a) (5) for the same reasons which compelled a similar conclusion in the sub- contracting cases. The leasing of premises to be operated by another employer presents a situation similar to termination of an operation, and, as in the Star Baby ease, the instant case should likewise be controlled by the rationale of Fibreboard and Town & Country. GEORGIA-PACIFIC CORPORATION 891 terminated as a result of it was.13 The overriding significance in terms of prejudice to the Union of Respondent's failure to meet on this issue before the terminations is not apparent. Respondent, in effect, went out of business in the affected departments when they were leased. Its proposal made to the Union on May 24 was that the employees be terminated and lose their seniority with Respondent when going to work for Coos Head. The Union did not agree to this at the time, but initially accepted what was, in substance, a wait-and-see approach. If all employees had transferred to Coos Head, presumably the matter might have been settled once and for all with no need for further meetings . However, with the transfer unacceptable to a small number, a bargaining issue arose. Respondent at no time took the position that the terminations had resolved the seniority question, and that there was nothing further to discuss. On the contrary, Tomberg admits that there was an "unresolved question on seniority," and that this meant "whether these people had seniority in the remaining departments in the Bunker Hill operation." This was the question then, and it was as open for a solution after the terminations as before. Finally Respondent did bargain with the Union after the terminations on the se- niority issue. It was prepared to discuss it at the June 5 meeting, but the Union wished to reserve discussion of this question for the meeting tentatively scheduled for the following day. There is nothing suggesting bad faith in Respondent's inability to meet at that time. The Union made no immediate effort to schedule another meet- ing, and the lapse of time between June 5 and the next meeting is apparently explained by the industrywide strike which commenced after June 5 and which involved Respondent's employees. At the next meeting on August 8, the seniority clause was met squarely. The Union's proposal was for Respondent to place eight employees who had not transferred to Coos Head on a preferential list for jobs in the sawmill unit. Respondent declined to negotiate the seniority issue on so narrow a basis, but expressed its willingness to negotiate with regard to the seniority status of all employees terminated as a result of the leases. Whether or not it was correct in its conclusion that it might be charged with discrimination if it negotiated in the limited manner asked by the Union, its proposal, in and of itself, does not appear an unrea- sonable one. The Union declined to expand the scope of the discussion in the man- ner urged by Respondent, and both parties adhered to their respective positions at three subsequent meetings. Viewing Respondent's conduct both prior and subsequent to the leases, I am unable to find that it acted in derogation of its statutory duty to bargain. The record shows a long-established and amicable bargaining relationship between Respondent and the Union. While the question of earlier layoffs had been handled through use of contract machinery, in the instant case the parties differed as to whether the effect of the leases was to create a layoff within the meaning of the contract. While Respondent had not notified the Union before making the leases, it had reason to believe that the Union would not object to them but might view them favorably, a conclusion which subsequent events bore out. Thus the only issue which the Union really sought to negotiate was seniority. Failure to meet -on this issue before the terminations cannot be regarded as bringing about irrevocable and prejudicial results to the Union. The parties did meet on this seniority question, and Respondent was willing to bargain on the issue but the parties were unable to reach an agreement. I am of the opinion, and find, that Respondent's conduct both prior and subsequent to the execution of the leases discloses a case parallel, in many respects, with Hartmann Luggage, and that it falls within the rationale of the Board in that case when it found that an "evaluation of Respondent's overall conduct" supported a finding that the employer had not refused to bargain within the meaning of the Act. Accordingly, I find that it has not been established that Respondent has refused to bargain col- lectively with the Union within the meaning of Section 8(a)(5) of the Act, or that its conduct discloses a violation within the meaning of Section 8(a)(1) of the Act, and I shall recommend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent, Georgia-Pacific Corporation, is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act, and is engaged in a busi- ness affecting commerce within the meaning of the Act. 13 The record is somewhat sketchy on the question, but it is shown that the Union did meet with Coos Head before the transfer and apparently at that time, or thereafter, it established a collective-bargaining relationship with it. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2(6) and (7) of the Act by refusing to bargain with the Union or by any other acts or conduct. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in this case, it is recommended that the complaint herein be dismissed in its entirety. Miami Coca-Cola Bottling Co. and Miami Coca-Cola Bottling Co. d/b/a Key West Coca-Cola. Bottling Co. and General Sales Drivers & Allied Employees Union, Local No. 198, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Cases Nos. 12-CA-2617 and 12-CA-2616. January 12, 1965 DECISION AND ORDER On December 18, 1963, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Re- spondent 1 had engaged in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirma- tive action as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not en- gaged in certain other unfair labor practices, and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision, with supporting briefs 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in these cases, in- cluding the exceptions and the briefs, and hereby adopts the find- ings,3 conclusions, and recommendations of the Trial Examiner,' with the modifications noted herein. 1 The record shows that Key West is but a branch of Miami and that both facilities are operated under the direction and control of President Buckner and Labor Relations Director Davis. We find Miami and Key West constitute in fact and in law a single employer, and for the purposes of these cases we treat them as a single Respondent. 2 The Respondent' s requests for oral argument are denied as the record, including the exceptions and briefs, adequately presents the issues and positions of the parties. S Respondent excepted to the Trial Examiner's finding on page 903, first paragraph of his Decision that Davis and his family were anxious to see the filming of "PT 109" and that accordingly Davis suggested that the July 11 meeting end in the morning. In view 150 NLRB No. 85.