Korner Kafe, Inc.

KORNER KAFE, INC. 1157 On the basis of the foregoing findings of fact and the entire record in the con- solidated cases, I make the following: CONCLUSIONS OF LAW I reiterate Conclusions of Law Nos. 1, 2, and 3 stated in my original Decision in Case No. 26-CA-1810, and add the following: 4. By shutting down its Chapel Hill plant between March 13 and April 1, 1964, and reopening and resuming operations, including recall of employees, therein on and after October 5, 1964, without notification to or consultation with said Union, in order to avoid bargaining with said Union as said bargaining agent, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By the above shutdown, termination of employees in said unit on various dates between March 13 and April 1, 1964, and its discriminatory manner of recall and reemployment of former employees at said plant on and after its reopening, because employees in said unit chose the Union as their bargaining agent, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By all of the above conduct, and by terminating other employees and refusing to reinstate them because of their concerted activities, Respondent has also inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act. 8. Except as found herein, Respondent has not violated the Act as alleged in the consolidated complaint. [Recommended Order omitted from publication.] Korner Kafe, Inc. and Chicopee, Holyoke, Westfield Bartenders, Hotel, Motel, Cafeteria and Restaurant Employees , Local 116, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. 1-CA-5004. January 28, 1966 DECISION AND ORDER On October 25, 1965, Trial Examiner George J. Bott issued his Decision in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that is cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter the Respondent filed exceptions to the Decision, and the General Counsel filed an answering brief to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations .pct, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 156 NLRB No. 107. 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions, the General Counsel's answering brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' with the following modifications. Although the Trial Examiner found that the Respondent refused to sign a multiemployer agreement, by which it was bound, in violation of Section 8 (a),(5) and (1) of the Act,2 he stated that he would not recommend that the Respondent be required to post a notice. It is the established practice of the Board, however, to require a respond- ent who is found to have violated the Act to post notices informing those concerned that it will not engage in the conduct in question and that it will take appropriate steps to remedy its unfair labor practices. We find no adequate reason for deviating from that prac- tice in this case .3 [The Board adopted the Trial Examiner's Recommended Order,' with the following modifications : [Add the following as paragraph 2(c), the present paragraph 2(c) being renumbered 2(d) : ["(c) Post at its place of business in Westfield, Massachusetts, copies of the notice marked "Appendix" issued by the National Labor Relations Board. Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days ' Subsequent to the issuance of the Trial Examiner 's Decision , the Respondent filed a motion to reopen hearing and for the introduction of further evidence Thereafter the General Counsel filed an opposition to the Respondent 's motion. The complaint in this case was served on the Respondent on June 28 , 1965, together with a notice of hearing to be held on August 25, 1965. The Respondent , which was represented at the hearing by its president, did not, in its answer to the complaint , filed on August 3, 1965, nor at the hearing, request further time to call witnesses or to present evidence . The record shows that the Trial Examiner advised the Respondent 's president that he had the right to be represented by an attorney and to present witnesses , and that he was given an opportunity to request an adjournment to afford him time to produce witnesses. More- over, no assertion is made that the evidence the Respondent seeks to introduce is newly discovered . Under all the circumstances , we find that the Respondent has not shown any adequate reason why the hearing should be reopened , and the motion is therefore hereby denied. 2 We agree with the Trial Examiner's findings that such refusals occurred on July 28, 1964 , January 12, 1965 , and on certain dates thereafter . As January 12 and the sub- sequent dates are within the 6-month limitations period of Section 10(b) of the Act, but July 28 , 1964, is not, we hereby amend the Trial Examiner's Conclusion of Law No. 6 by changing "on or about July 28, 1964 ," to "on or about January 12, 1965, and thereafter." S See Chevrolet Motor Division, General Motors Corporation, 144 NLRB 862. '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 "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order." KORNER SAFE , INC. 1159 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material."] APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : '"TE WILL NOT refuse to bargain collectively with Chicopee, Holyoke, Westfield Bartenders, Hotel, Motel, Cafeteria and Res- taurant Employees, Local 116, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of a unit of employees employed as bartenders by the members of Westfield Valley Liquor Dealer's Association. WE WILL forthwith, through a duly authorized representative, sign, subscribe, and execute a copy of the agreement dated July 28, 1964, between the above-named Union and the above- named Association; deliver such copy thus signed, subscribed, and executed, to the said Union; and put into effect and apply all provisions of the agreement to the extent required by its terms. KORNER I1-C-AFE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 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, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 225-3358, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge of unfair labor practices filed on May 14, 1965, by the Union against Korner Kafe, Inc , herein called Respondent or Company, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated June 29, 1965, alleging that Respondent had engaged in unfair labor practices in viola- tion of Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act. Respondent filed an answer in which it admitted the service of the charge and the allegation that it is a Massachusetts corporation operating a tavern for the retail sale of alcoholic beverages in Westfield, Massachusetts, but denied all other 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations of the complaint. Pursuant to notice a hearing was held before Trial Examiner George J. Bott at Springfield, Massachusetts, on August 25, 1965. Subse- quent to the bearing, General Counsel filed a brief which I have considered 1 Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE JURISDICTION OF THE BOARD Respondent admits that it operates an establishment in Westfield, Massachusetts, for the retail sale of alcoholic beverages. The complaint alleges that Respondent also has been, at all material times, a member of the Westfield Valley Liquor Dealer's Association which exists for the purpose, among others, of representing its members in multiemployer bargaining with the Union, and that the Association is engaged in commerce within the meaning of the Act. As already indicated, these allegations and all other basic allegations of the complaint are denied by Respondent. It is clear from the record that the Association exists, in part, for the purpose of representing its membeis in bargaining with the Union. Frank Zebrowski, an officer of the Hotel Westfield, which is a member of the Association, credibly described the most recent bargaining the Association conducted with the Union which resulted in a labor contract. A committee representing the approximately 22 members of the Association bargaining with the Union for a new contract in May and June 1964. The committee, which included Zebrowski and others, was selected by the members of the Association at an Association meeting and was authorized to bargain for members of the Association, but was instructed that no contract could be signed until its terms were first ratified by Association members. Edward Wall, business agent and secretary of the Union, corroborated Zebrowski in regard to the 1964 Association bargaining with the Union, and he added that there is a 17-year history of bargaining with the Association in which he had participated. I find, therefore, in accord with the allegations of the complaint, that Westfield Valley Liquor Dealer's Association exists, in part, for the purpose of representing its members in multiemployer collective bargaining with the Union, and that it did represent its members in multiemployer bargaining during the negotiations of the 1964 contract with the Union. I also find that Korner Kafe, Inc., the Respondent, was a member of the Associa- tion, at least during the negotiations which preceded the execution of the 1964 labor agreement. Zebrowski testified that, in addition to the bargaining committee selected by the Association members, anyone who belonged to the Association and had a con- tract with the Union was permitted to attend the negotiating sessions. Korner Kafe, Inc., was a party to a contract with the Union, and Zebrowski testified that Richard Bovat, Respondent's owner, attended more than one of the 1964 meetings with the Union Business Agent Wall also credibly testified that Bovat attended three negotiat- ing sessions and that only Association members could do so. He said Bovat actually participated in the discussions , and he recalled Bovat specifically raising an issue about the Union's health and welfare proposal. Shaker Farms Country Club is now and was a member of the Association during the 1964 contract negotiations. Raymond Papanti, manager and officer of the country club, testified credibly that he did not negotiate the 1964 agreement with the Union personally but authorized the Association to do it. Shaker Farms Country Club had gross sales of $502,168, and during that period the club purchased approxi- mately $15,000 of materials outside the State of Massachusetts which were delivered directly to the club in Massachusetts. The criterion used to determine the Board's jurisdiction is the combined operations of all the employer members of a multiemployer group which exists for the purpose of conducting collective-bargaining negotiations. The Board will exercise jurisdiction over retail enterprises if the gross volume of business is at least $500,000 per annum and where there is proof of legal jurisdiction. Shaker Farms Country Club, a member of the Association, meets the Board's current standard for asserting jurisdiction over a retail enterprise as well as the requisite legal jurisdiction. 1 Respondent was not represented by counsel at the hearing. Richard Bovat, Respond- ent's president and principal stockholder, entered an appearance. I advised him that he had the right to be represented by an attorney and to take part in the proceeding in a variety of ways. Mr. Bovat told me that he had been represented by counsel at one time. He limited his participation in the hearing to asking a few questions of the witnesses and making a short opening and closing statement. He did not testify, and called no witnesses for Respondent. KORNER KAFE, INC. 1161 On the basis of the above findings, I find, and conclude, that the Board has legal jurisdiction over the operations of Respondent and that it will effectuate the purposes of the Act to assert it.2 H. THE LABOR ORGANIZATION INVOLVED Although the answer denies it, it is clear from the testimony of Edward Wall, officer of Local 116, that the Union is an organization which exists for the purpose of dealing with employers concerning wages, hours, and conditions of work and which permits employees to participate within its organization. The Union is, therefore, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively with the Union 1. The appropriate unit The Association's collective-bargaining history with the Union covers a period of 17 years, according to the credited testimony of Wall and Zebrowski. Collective- bargaining contracts between the parties were executed during this period, and the record contains one agreement executed in 1957 which was signed by Zebrowski as president of the Association and as an officer of the Hotel Westfield.3 The 1957 multiemployer agreement ran until May 9, 1960, but contained an automatic renewal clause on a year-to-year basis unless notice was given to terminate or change it. No notice was given until the Union notified the Association and its members in April 1964 that it wished to make changes in the contract, and the agreement, therefore, by its terms remained in effect until the 1964 contract was signed Negotiations for a new agreement took place in May and June 1964, and it appears from the testimony of Wall for the Union, and Zebrowski for the Association, that the negotiations were on a multiemployer basis. Although it appears from Zebrow- ski's testimony that not all members of the Association participated in group bargain- ing, since some had no contracts with the Union, this is not a factor militating against a multiemployer unit .4 It also appears from Zebrowski's testimony that the com- mittee chosen by the members of the Association to bargain on their behalf was not authorized to sign a binding agreement until the tentative agreement was ratified by the Association members, and that individual members of the Association signed individual but identical agreements The Board has held, however, that such factors do not prevent the establishment of multiemployer units.5 The Association also seems to have been organized and operated on an informal basis so far as the record in this case is concerned. There is no evidence that it had bylaws, a constitution, dues, or regular meetings, and there is no evidence that mem- bers gave written authority to the Association to act for them. But the Board has also held that an employer group may be found to have engaged in joint bargaining even though they had no formal organization, for it is the intent of the members of an employer group to be bound by joint bargaining which is the essential element. It is apparent from Wall's and Zebrowski's testimony that group bargaining had been going on for many years and that it continued through the 1964 negotiations . I note particu- larly, based on Wall's testimony, that all those employers who signed the 1957 agree- ment signed the 1964 contract, and this continuity is strong evidence of group action. It also appears from Zebrowski's testimony, as I have found above, that the members delegated to their committee authority to negotiate, albeit subject to their approval of any agreement negotiated, thereby indicating their intention to be bound by group action. I find, and conclude, therefore, that all bartenders employed by members of the Association who regularly bargain with the Union, exclusive of all other employ- ees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Respondent was a member of and participated in some degree in the Association-union negotia- tions for the 1964 contract. Saving for later discussion the question of the depth of 2 Westside Market Owners Association, at al., 126 NLRB 167, 169. "The agreement was signed by Edward Wall for Local 82 of the Bartenders Wall testified credibly that Local 82 merged with Local 116 in accordance with all constitu- tional requirements of the parent union's constitution and that the Association had recognized the merger. AJoseph T. Strong, d/b/a Strong Roofing & Insulating Co., 152 NLRB 9, TXD; Print- ing Industry of Seattle, Inc., 116 NLRB 1883. 5 The Kroger Co., 148 NLRB 569 ; Krist Gradis, at al., 121 NLRB 601 ; Belleville Em- ploying Printers, 122 NLRB 350; American Publishing Corporation, et al, 121 NLRB 115 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents' involvement in Association bargaining or the problem of whether or not if once in Association bargaining it effectively withdrew from participation, it appears that there is substantial evidence that Respondent was a member during the 1964 negotiations and indicated an intention to be bound by group negotiations. I find, therefore, that the appropriate unit includes the bartenders employed by Respondent. 2 The Union's majority status The Association has had labor agreements with the Union for at least 17 years, and the 1957 agreement, which was continued in effect during the negotiations of the 1964 agreement, contained a union-security clause. Respondent's agreement with the Union, executed by Richard Bovat in September 1963, was in effect when the negotia- tions for the 1964 agreement with the Association were taking place, and it also con- tained a union-security provision There is no allegation or any evidence that the Union's majority status was questioned by anyone during the 1964 negotiations, and I find, therefore, that the Union has been at all times since May 1964, as the complaint alleges, the statutory representative for the purposes of collective bargaining of a majority of the employees in the unit found above.c 3. The refusal to bargain Respondent purchased Korner Kafe, Inc., in September 1963. The 1957 contract with the Association included Korner Kafe as one of the parties and was signed by Joseph McGowan as president of Korner Kafe. Union Representative Wall, who negotiated the 1957 contract, testified credibly that McGowan was a member of the Association, that he sold his business in 1962 to one Francis Reardon who signed an identical agreement with the Union, and later sold Korner Kafe to Bovat in 1963. When Wall learned that Bovat had purchased Korner Kafe, he requested him to sign an agreement with the Union covering his bartenders and Bovat agreed. The contract had a termination date different from the 1957 agreement with the Associa- tion, since it was executed on September 24, 1963, and ran for 1 year, and it, unlike the Association agreement, also contained a health and welfare clause. On March 31, 1964, Wall notified all members of the Association who were parties to the 1957 agreement with the Union that the Union wanted to make changes in the contract. Korner Kafe, Inc., was not similarly notified, according to Wall, because he did not know that Bovat (Respondent) was a member of the Association and because Respondents contract had a different expiration date. Paul Kertiles, an offi- cer of Phoenix Cafe, which was a member of the Association and a party to the 1957 contract, responded to Wall's notification to the Association members and arranged a meeting for May 6, 1964. Kertiles, Zebrowski and one Phillips constituted the bar- gaining committee representing the members of the Association who had labor agree- ments with the Union No representative of Respondent was present at the May 6, 1964, bargaining session. The next negotiating meeting took place on May 20, 1964, and, according to Wall, Bovat appeared at this meeting for Respondent. Wall testified credibly that he was informed at the meeting that the Association had enlarged the committee. In addition to the three men named above, Bovat, Depico, and Placek, representing their respective establishments, were gathered around the bargaining table. The 1957 agreement contains the names of The Nook and Old Rose Cafe as parties and the signatures of Placek and Dapico as representatives of those respective parties. I have credited Walls testimony' that Bovat appeared at several bargaining meetings and participated in the negotiations at all meetings at which he was present. The Union was on strike against the members of the Association when a tentative agreement was reached at a meeting on June 25, 1964. Bovat was not present at the June 25 meeting. Wall was later informed by a State mediator that a majority of the members of the Association had voted to accept the tentative agreement, and he then proceeded to obtain the signatures of individual members of the Association to individual but identical agreements. Wall, on the basis of knowledge of membership in the Association gained from his years of experience in bargaining with the Association, approached individual mem- bers, and he testified credibly that all executed the 1964 agreement, as they had in the past, except Korner Kafe, Inc. He said he assumed that Korner Kafe was a member of the Association because of Bovats participation in the negotiations, and he asked Bovat to execute the agreement. He said, and I credit him, he visited Bovat at his establishment on July 28, presented the contract to him, told him it was the agreement recently negotiated, and asked Bovat to sign two copies. Bovat asked Wall to leave e Tulsa Sheet Metal Works, Inc, 149 NLRB 1487 ; Shamrock Dairy, Inc., et al, 119 NLRB 998, 1002. KORNER KAFE, INC. 1163 both copies of the agreement and give him 2 weeks to consider the matter or he would never sign the contract. Bovat told Wall that he wanted to check with the other members of the Association to find out if the documents which Wall had presented to him were true and correct copies. Wall replied that all others had signed, and urged Bovat to comply. Bovat refused, and Wall left with the agreements. Wall saw Bovat again in about 2 weeks, and asked him if he had yet signed the agreement which, appaietnly, had been left with him by a third party. Bovat said he had not and was not going to, because he had changed his mind. Walt told Bovat he was obligated to execute the 1964 contract because he was a member of the Associa- tion. Bovat gave Wall no reasons for his unwillingness to sign the contract. After a few weeks time, Wall saw Bovat again and asked for his signature to the agreement, but Bovat refused. Wall again asked Bovat to become a party to the labor agreement on March 1, 1965, but Bovat said he would never agree. Wall wrote to Bovat on April 20, 1965, requesting his signature to the contract, but he got no reply. At no time did Bovat ever tell Wall that he was not a member of the Association. John Connors, president of the Union, testified credibly that he and another officer of the Union asked Bovat to execute the agreement on January 12, 1965, but Bovat would not agree to it, objecting particularly to the health and welfare clause.T Richard Bovat did not testify but he did state that he could not "live by" the 1964 agreement, and he also offered in evidence two notarized documents signed respectively by Michael Phillips and Paul Kertiles, stating that, at the time of the recent negotia- tions, the Association "was not a bargaining agent," and that all "members who attended these meetings were negotiated [sic] individually and have signed individual contracts with the bartenders' Union." Phillips and Kertiles described themselves in the documents, which were signed on May 17, 1965, as vice president and past secre- tary, respectively, of the Associations Although Respondents predecessors in business were members of the Association, Respondents own participation in mulitemployer bargaining was not of long standing. Nevertheless, Respondent did immediately recognize the Union and sign a contract when it purchased the business in 1963. Subsequently, Respondent participated in group bargaining for the 1964 agreement. Although Respondent's 1963 individual agreement varied in some particulars from the union agreement negotiated in 1957 with Association members, Respondent's readiness to follow its predecessors accept- ance of the Union, taken with its direct participation in group bargaining, was a strong indication of its intention to be bound by the results of Association bargaining upon which the Union was entitled to reply. In addition, Zebrowski testified that Respond- ent was a member of the Association, Wall said that only Association members partic- ipate in negotiations, and there is no denial of this testimony. As a matter of fact, Bovat never told Wall or anyone else that he was not a member of the Association or that he had withdrawn. If Bovat had any reservation about the results of group bargaining he never communiated it to the Union. I find that Respondent was engaged in multiemployer bargaining during the negotiations of the 1964 agreement, and that it had unequivocally indicated its intention to be bound by the results of the negotiations. Respondent, therefore, was legally bound to adopt the contract nego- tiated unless it had withdrawn from Association bargaining." The Board has long recognized and recently forcefully reminded us of the con- sensual nature of multiemployer bargaining, but still holds, nevertheless, that in the interest of stability withdrawal of consent must be unequivocal and timely 10 Respond- ent participated in negotiations with the Union up to the meeting at which the tentative agreement settling the strike was reached. Bovat, Respondent's president, has never actually taken the position that he has withdrawn from the Association, and does not wish to sign the contract for that reason, and if his reluctance to accept the results of joint bargaining be evidence of de facto withdrawal, he has never communicated his intentions to the Union unequivocally. Finally, not only was any purported with- 7 Although Respondent's first refusal to sign the Association agreement was on July 28, 1964, its additional refusals on January 12, March 1 , and April 20 , 1965 , were all within the 6-month statute of limitations of Section 10(b) of the Act Joseph T. Strong, supra, footnote 4. 8I accepted these documents in evidence even though the statements contained in them are hearsay , but regardless of the nature of the evidence , I find that it does not diminish the strength of positive testimony of Zebrowski and Wall that the negotiations were on a multiemployer basis 8 Fairbanks Dairy, Division of Cooperdale Dairy Company, Inc., 146 NLRB 893, 897; Sheridan Creations, Inc., 148 NLRB 1503 10 The Evening News Association, Owner and Publisher of "The Detroit News," 154 NLRB 1494 and 154 NLRB 1482 ; Fairbanks Dairy, supra, 897. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drawal equivocal but Bovat's absence from the meetings, at which the contract was agreed to and ratified, if this be equated to withdrawal, was not a timely indication that he no longer intended to be bound by the results of the group negotiations in which he had previously participated.11 I conclude that Respondent, commencing on or about July 28, 1964, and at all times thereafter, has refused to bargain collectively with the Union by refusing to sign the written agreement of June 1964 agreed on between the Association and the Union, and that by such conduct Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, and occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. In view of the small size of Respondent's business and because the collective- bargaining contract, which I am recommending it be ordered to sign immediately, requires it to hire through the Union, I see nothing to be gained by recommending that Respondent post notices to its employees. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Westfield Valley Liquor Dealer's Association is and has been engaged in com- merce within the meaning of the Act. 3. The Union is a labor organization within the meaning of the Act. 4. All bartenders employed by members of the Association, including all bar- tenders of the Respondent, exclusive of all other employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since May 1964 the Union has been, and now is, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on or about July 28, 1964, to bargain with the Union as the exclusive representative of the employees in the aforesaid unit, and by refusing, on and after the aforesaid date, to execute and maintain in full force and effect, the terms and conditions of the collective-bargaining agreement negotiated by the Union and the Association in June 1964, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. By the aforesaid refusal to bargain with the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I shall recommend that the Respondent, Korner Kafe, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representative of its employees in the unit found appropriate herein. (b) Refusing to sign the agreement, negotiated by the Association with the Union, in June 1964. n Fairbanks Dairy, supra, 897; Quality Limestone Products, Inc., 143 NLRB 589; C & M Construction Company, 147 NLRB 843; Tulsa Sheet Metal Works, Inc., supra; Sheridan Creations, Inc., supra. BANGOR PLASTICS, INC. 1165 (c) In any like or related manner, interfering with, restraining, or coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate multiemployer unit. (b) Forthwith sign the agreement, negotiated in June 1964, with the Union by the Association. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps it has taken to comply herewith.12 12 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." Bangor Plastics, Inc. and International Union, Allied Industrial Workers of America, AFL-CIO. Cases Nos. 7-CA-4428 and 7-CA-4428(2). January 28,1966 DECISION AND ORDER On April 27, 1965, Trial Examiner Wellington A. Gillis issued his Decision 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 attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Deci- sion and a brief in support thereof, and Respondent filed a brief in answer to the General Counsel's exceptions. The National Labor Relations 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 this case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found that the informal settlement agreement of January 9 1 had been erroneously set aside by the Acting Regional Director. As a consequence, he found it unnecessary to pass upon those allegations of the complaint which involve presettlement con- duct. We do not agree. The initial charge 2 in this proceeding, filed by the Union on Octo- ber 24, alleged that Respondent had engaged in certain conduct violative of 8(a) (1) and had unlawfully discharged employee Baxter 1 Unless otherwise indicated , all reference to the months of August through December will be to the year 1963, and reference to the months of January through June will be to 1964. s Case No. 7-CA-4428. 156 NLRB No. 105.