Federal Compress & Warehouse Co.

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federal Compress & Warehouse Company and Retail, Wholesale and Department Store Union, AFL-CIO, Local 19. Case 26-CA-2381 June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 21, 1967, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. I Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 the case, including the exceptions and brief, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Federal Compress & Warehouse Company, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Respondent has requested oral argument This request is hereby denied because the record, the exceptions, and the brief adequately present the issues and the positions of the parties 2 We note that in the introductory paragraph to part III, D, of his Decr sion, the Trial Examiner inadvertently summarized the complaint as alleg- ing that the Respondent "satisfied its obligation to bargain collectively with the U nion" rather than that it had failed to satisfy that obligation TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Trial Examiner: This case was heard at Memphis, Tennessee, on December 13 and 14, 1966. The complaint herein issued on October 18, 1966. The question presented is whether Respondent, in viola tion of Section 8(a)(5) and (1) of the Act, refused to bar- gain during the contract term ending December 31, 1966, with Retail , Wholesale and Department Store Union, AFL-CIO, Local 19, the contractual bargaining repre- sentative, herein called the Union , with respect to the categories of shed clerk and carpenter (maintenance-repairman), which categories had, pursuant to a Board proceeding, been added to the already established contract unit during the contract term. More particularly , the complaint alleges that Respondent vio- lated the Act ( 1) by insisting that it would bargain only during periods when the contract covering the already established unit was opened for negotiations pursuant to its terms ; (2) by unilaterally granting wage increases on or about April 7, 1966, to employees in the classification of shed clerk; (3) by unilaterally granting wage increases on or about September 1, 1966, to employees in the clas- sifications of shed clerk and carpenter (maintenance-repairman); and (4) on or about August 25, 1966, by conditioning offers of wage increases for em- ployees in the already established contract unit upon the Union's agreement to exclude from the bargaining unit the employees in the classifications of shed clerk and car- penter (maintenance-repairman). Upon the entire record , including my observation of the witnesses , and after due consideration of the briefs of the General Counsel and Respondent , I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, the record shows, and Respond- ent admits, that Respondent is a Delaware corporation engaged in the storage and compressing of cotton at its plant in South Memphis, Tennessee; that, during the preceding 12-month period, it received goods and products valued in excess of $50,000 from outside Ten- nessee; and that, during the same period, it shipped goods valued in excess of $50,000 directly outside Tennessee. I find, upon the foregoing, as Respondent further ad- mits, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits also, and I find, that Retail, Wholesale and Department Store Union, AFL-CIO, Local 19, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background- Sequence of Events Until the Informal Settlement Agreement Pursuant to a Board election in April 1943, the Union was certified on April 26 , 1943, as the bargaining representative of all production and maintenance em- ployees at the South Memphis, Tennessee , plant of Respondent , including watchmen but excluding super- visors and clerical employees . Respondent and the Union have entered into numerous contracts since 1943. The most recent was a 3-year contract with an expiration date of December 31, 1966. On August 25, 1965, the Union filed a Unit Clarification Petition with the Regional Director for Region 26 in Case 26-UC-1, requesting that 166 NLRB No. 17 FEDERAL COMPRESS & WAREHOUSE CO. 665 the above-described unit be clarified to include shed clerks, also called checkers; and carpenters, also called maintenance-repairmen.' After a hearing held on Sep- tember 10, 1965, the Regional Director issued a Decision and Order on October 18, 1965, finding that the shed clerks and maintenance-repairmen were not supervisors as contended by Respondent, and that they were included in the bargaining unit. Respondent thereupon filed with the Board a Request for Review, which the Board denied by telegraphic order on January 6, 1966, because the request raised "no substantial issues warranting review." Thereafter, Respondent filed with the Board a Request to Reconsider the aforesaid denial of the Request for Review. On January 19, 1966, the Board issued its Order Denying Request on the ground that such request to reconsider "contain[ed] nothing not previously con- sidered by the Board." On March 16, 1966, the Union requested from Respondent, by letter, information "concerning the car- penters and shed clerks so that we may intelligently bar- gain for these employees." Included in the information sought were "the names of all employees including their job classification, if any, their date of hire and their rate of pay." In consequence of Respondent's answering letter of March 25, another letter from the Union on March 28, requesting additional information, and a letter in reply from Respondent on April 8, 1966, the following infor- mation, inter alia, was furnished as to shed clerks Steve Vandevender, J. E. Sanders, Fred Light, R. B. Turk, Warren Veasey, R. A. Spann, F. J. Searcy, Calvin Taylor, and James Shead,2 and as to maintenance-repair- men C. C. Aderholt and W. A. Harder: Among the shed clerks, all, except Taylor and Shead, whose status was apparently unchanged, were purportedly promoted. Thus, Vandevender was promoted to truck loading and unloading foreman on August 26, 1965; Sanders, Light, and Veasey were each promoted to loading foreman on September 9, 1965; Turk was on the same day promoted to blocking foreman, and Searcy was also promoted to breakout foreman; and Spann was promoted to loading foreman on March 24, 1966, to replace Veasey, who left for the Armed Forces on February 4, 1966;3 and, with respect to the two maintenance-repairmen, each was promoted to plant maintenance foreman. Aderholt's promotion date was given as September 9, 1965; no date was given for Harder's promotion.4 Although the letter from Respondent of April 8, 1966, made no mention thereof, Respondent admits herein that on April 7, 1966, it "instituted a wage increase to its su- pervisory employees," including R. A. Spann, F. J. Sear- cy, and others.' This was followed on April 13, 1966, with the filing of the unfair labor practice charge herein, alleging a refusal to bargain with the Union since on or about April 8, 1966. Thereafter, on May 31, 1966. the parties agreed to an informal settlement of the matters in- volved, and, on that date, the settlement agreement was approved by the Regional Director. The settlement agreement was thereafter set aside by the Regional Director on October 18, 1966, on the ground that Respondent had violated the terms thereof. B. The Informal Settlement Agreement and the Events Subsequent Thereto The settlement agreement provided, inter aha, that Respondent (1) would not change unilaterally the job classification, rates of pay, or otherwise change the terms or conditions of employment of the shed clerks or main- tenance-repairmen without first giving notice thereof to, and, on request, bargaining with the Union; (2) would bargain collectively, upon request, with the Union as to wage rates, hours of employment, and conditions of em- ployment, including "changes in job classifications and job description of shed clerks and maintenance-repair- men"; and (3) would, upon request of the Union, furnish it with the names of all employees in the classifications of shed clerk and maintenance-repairman and with all rele- vant data pertaining to such job classifications, etc. Respondent did thereafter furnish the Union, upon request, certain information pertaining to these job classi- fication's and did meet with the Union for the purposes of bargaining on August 4, August 25, and September 15, 1966, but no agreement was reached.' The Union sought additional bargaining sessions but without suc- cess. The only meetings that did occur thereafter between the parties related to grievances other than incumbent shed clerks or maintenance-repairmen. At one such meet- ing, when Fisher raised the question of negotiating con- cerning the latter, Powell replied that "he didn't have anything else to say about it since the Board had now taken further action on the case." The reference was plainly to the fact that, on October 18, 1966. the settle- ment agreement of May 31, 1966, was set aside and the complaint herein was issued. During these negotiations, Respondent took the firm position, in effect, that its obligation to bargain with respect to wages, hours, and conditions of employment of employees in the shed clerk classification extended only to future employees in that classification, and that as to those who were in this classification at some point prior I These two classifications shall hereinafter , as a general rule, be referred to as shed clerks and maintenance-repairmen , respectively. 2 Shead was not an employee at the time of the unit clarification proceeding 3 On the same day, Turk left Respondent's employ on account of his health In a subsequent communication to the Union , Respondent changed the date as to Spann's promotion to September 9, 1965 4 In a later communication, Harder's promotion date was also given as September 9, 1965. 5 Vice President Powell, who wrote the letter, testified that he did not have the information as to the wage increase at the time. 6 The extent of the information furnished is discussed hereinafter. The Union was represented at the first and third meeting by Fisher, its president and business agent, and at all three meetings by its shop commit- tee. At the second meeting, because Fisher was on vacation, Hubert M Householder, International representative, acted in his stead Present in behalf of Respondent at all three meetings were George M Powell and C. F Manly , both being vice presidents of Respondent. Also present at the first meeting, at the instance of Respondent, were shed clerks Van- devender, J E. Sanders, Light, Spann, Walker, Shead, and mainte- nance-repairman Harder According to Powell, Leslie A Nicholson, general counsel of Respondent, "just thought it would be a good idea to have [the shed clerks and the maintenance-repairmen ] there, " and they came at Powell's invitation The shed clerks and the one maintenance-repairman took no part in the negotiations According to Fisher, Powell said, at the meeting, "we want to prove to you that these people don't want to be- don't want to Join your union or belong to your union." As there is no testimonial dispute as to the respective bargaining post tions of the Union and Respondent at these meetings or as to the unilateral action as to wages taken by Respondent during this period, the testimony relating thereto would be surplusage and I am setting forth herein only those positions and the wage action taken. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the settlement agreement, its obligation was satisfied if it bargained only as to their exclusion from the unit, because they had been promoted out of this classification. were made supervisors, and were now outside the unit. Also, at the second and third negotiating sessions, Respondent proposed a wage increase of 7-1/2 cents an hour to those classifications initially in the contract unit and offered to negotiate an hourly wage for future em- ployees in the classifications of shed clerk and main- tenance-repairman, but conditioned such an increase, inter alia, on the exclusion of incumbent shed clerks and maintenance-repairmen from the unit." Significantly, too, on September 1, 1966, between the time of the second and third negotiating sessions, Respondent granted a wage increase of 10 percent to all its salaried employees, including two maintenance-repairmen and seven shed clerks who had, pursuant to the Decision and Order of the Regional Director in Case 26-UC-1, been included in the established contract unit on October 18, 1965; it preceded this wage increase only by a letter dated August 31, 1966, to the Union giving notice that the wage in- crease would become effective the very next day. The firmness of Respondent's position, as set forth above, is underscored in its letter of October 3, 1966, to the Union- a letter which was promised to the Union at the third negotiating session, when it sought clarification of Respondent's position as to the shed clerks and main- tenance-repairmen Respondent there stated that it "stand[s] willing at any mutually satisfactory and con- venient time to continue [its] negotiations regarding the job classifications which were involved in NLRB Case 26-UC-1," and further that Respondent "stand [s ] ready to bargain with [the Union] with respect to persons named in [its] letter addressed to [the Union] on August 31, 1966, who are still in [its] employ." The letter then listed the 10 individuals named in the August 31, letter, viz, Aderholt, Harder, Vandevender, Sanders, Light. Spann, Taylor, Shead. Walker, and Searcy;° it pointed out that, of these, only Taylor was not currently em- ployed as he had resigned to enter the Armed Forces. As to the others, the letter purported to list their duties and responsibilities and their authority as to the employees who worked in their gangs. With respect to Shead, the letter indicated merely that he checked cotton. As to all but Shead, and Walker, who was promoted on September 1. 1966, the letter showed a promotion during 1965. either on August 26 or September 9. Thus, these shed clerks were then purportedly promoted either to truck loading and unloading foreman, car loading foreman, loading foreman, blocking foreman, or breakout foreman; and the carpenters or maintenance-repairmen (Aderholt and Harder) were each promoted to plant maintenance foreman. As to all those promoted, Respondent asserted that they were not part of the unit as they were super- visors. The letter also spoke of Respondent's commit- ment to these individuals in a somewhat similar manner to that stated by Powell at the negotiating session on Au- gust 25, as follows: "Without exception, each of the above named employees was employed as a supervisor. to Each man was told what his duties would involve, what his salary would be and what extra benefits he would be entitled to after proving his ability. This company feels a strong and compelling moral obligation to these men in that we made them a binding commitment with respect to their employment. We take note of the stipulation in the `Notice To All Employees' that we are not required to vary or abandon any economic benefit which has been heretofore established." As to all the foregoing, it is Respondent's contention. as detailed more fully hereinafter, that in no instance did it contravene its bargaining obligation under the settle- ment agreement and that the Regional Director was not warranted in setting aside the agreement on October 18. 1966. C. Conclusions as to the Above Contentions and as to the Propriety of the Regional Director's Action I am persuaded , however, for the following reasons that Respondent 's contentions do not withstand analysis. Thus. Respondent maintains , in its brief, that the extent of its obligation to bargain concerning the shed clerk and maintenance-repairman classifications was to bargain in good faith as to future employees in these classifications because "there was an understanding at the time the set- tlement agreement was entered into that the said shed clerks" were no longer employed as such," In fur- therance of this contention , Respondent asserts that it sent a letter to the Union dated April 8, 1966,12 which "carefully explains the date of promotion of several em- ployees including: Steve Vandevender . J. E. Sanders, Fred Light, R. B. Turk. R. A. Spann. F . J. Searcy, and C. C. Aderholt. The letter itself referred to a previous letter on March 25, 1966,13 in which the Company stated that W. A. Harder's classification was that of plant main- tenance foreman. 14 Therefore, there should have been an understanding between the Union and the Company, that these were no longer employed as `shed clerks , or main- tenance-repairmen."' The weakness of Respondent's ar- gument is revealed by its initial assertion that "there was an understanding" and its immediate modification thereof to "there should have been an understanding." What should have been is hardly proof of what was . Indeed, so far as appears , Respondent's proof consists only of these two self-serving letters to the Union and it points to nothing from the Union by way of concession or admis- sion. Further, the settlement agreement itself , by implica- tion, refutes such an understanding. For, in view of Respondent's undertaking therein not to "unilaterally change the job classification , rates of pay , or otherwise change the terms or conditions of employment, of the shed clerks or maintenance-repairmen" and to bargain collectively with the Union concerning , inter alia, "changes in classifications and job description of shed clerks and maintenance-repairmen ," it is obvious that these very individuals, whom Respondent would now eliminate from bargaining, were , under the settlement agreement , to be the ones encompassed in the contem- plated bargaining concerning shed clerks and main- tenance-repairmen , rather than some individuals who 8 The other condition was the extension of the existing contract between the parties for I year to December 31, 1967 9 As already found, this letter announced a 10-percent wage increase e€ fective on September 1, 1966, the next day 10 This would seem to refer to Shead also 11 Read in context, I find that the intended reference is to both shed clerks and maintenance-repairmen. 10 This letter is in evidence as G C Exh. 2(f). 18 This letter is in evidence as G C Exh. 2(d). 14 As already found, Vandevender, Sanders , Light, Turk, Spann, and Searcy were originally classified as shed clerks and Aderholt and Harder were classified as maintenance-repairmen or carpenters. FEDERAL COMPRESS & WAREHOUSE CO. 667 may or may not be hired into these classifications in the future.15 In these circumstances. I find that there was no such understanding between the parties, and I find further, that, unless, as Respondent contends, it did, in fact, comply with the settlement agreement through its meeting and negotiating with the Union on three occa- sions, it would follow that Respondent has thereby patently disregarded the language of the settlement agree- ment. With respect to these bargaining sessions, Respondent asserts, in effect, that it took the position throughout that it was willing to bargain with the Union in order to show that these above-named individuals were not included in the unit but had had a change in duty which made them supervisors and excluded them from the unit. In this con- nection. Respondent's brief seeks to prove too much when it asserts that Fisher, the Union's president and business agent. "admitted on the stand that he felt that an understanding [to that effect] had been reached between the parties." It is apparent that Respondent's brief has taken testimony out of context and that Fisher was, in fact, referring to an understanding with respect to procedure for fixing an hourly rate of pay for individuals in these two classifications. 16 Indeed, Fisher's testimony implies both a rejection by the Union of Respondent's position that the above-named individuals had undergone a change of status which put them outside the unit and a rejection of Respondent's offer to bargain, insofar as they were concerned, only as to their exclusion from the unit. In view of the foregoing. I am persuaded, and find, that Respondent was taking a bargaining position clearly in- consistent with its bargaining obligation under the settle- ment agreement and acted in violation thereof. Also bearing on Respondent's compliance with the set- tlement agreement is its conduct on September 1, 1966, of granting a wage increase of 10 percent to all its salaried employees, including two maintenance-repairmen and seven shed clerks, who had. pursuant to the Decision and Order of the Regional Director in Case 26-UC-1. been included on October 18. 1965, in the established contract unit. As already found, there had been no prior discus- sions of such an increase'17 and the only notification of this increase to the Union was by letter to the Union dated August 31, 1966, in which Respondent gave notice that the proposed wage increase would become effective the very next day; i.e., on September 1.19 In justification of this unilateral action. Respondent asserts that it acted in accordance with the opinion of its general counsel that, in doing what it did, it would be conforming to the letter of the settlement agreement. It is apparent from the record that Respondent's position is that, in order to comply with its undertaking not to act unilaterally as to rates of pay etc., of the shed clerks or maintenance-repairmen "without first giving notice thereof to, and on request bargaining with [the Union]," 19 it was merely required to notify the Union of a wage increase before it granted same and to bargain about the wage increase after having granted it, should the Union request it to do so. This is a patent miscon- struction by Respondent of language which is clear on its face. Further, to construe it, as would Respondent. is to afford the Union bargaining rights only after effective bargaining has been obstructed by Respondent's having already put the wage increase into effect, and thereby to undercut fundamental and well-established principles of collective bargaining under the Act.20 I. therefore, con- clude, that, by its conduct of unilaterally granting a wage increase to employees in the unit on September 1, 1966, Respondent also violated the settlement agreement. - In all these circumstances, I find that Respondent failed to comply in material respects with the settlement agreement and that the Regional Director was justified in setting it aside. D. Conclusion as to the Allegation of Refusal to Bargain Having found that the settlement agreement was properly set aside, there remains for consideration whether, as alleged in the complaint, Respondent has since, before such settlement agreement, namely, since on or about March 16, 1966, satisfied its obligation to bargain collectively with the Union. 1. The appropriate unit The complaint alleges, Respondent admits, and I find, that the Union has, since 1943, been the collective-bar- gaining representative in an agreed unit of production and maintenance employees at the south Memphis, Tennes- see. plant of Respondent The most recent contract between the parties describes the unit as consisting of all 15 I have already referred to Respondent's contention that it had a bind- ing commitment to the incumbent shed clerks and maintenance-repairmen as to what their salary would be and as to what extra benefits would ac- crue after proof by each of his ability, and to Respondent's reference, in this regard, to the language in the "Notice to All Employees" under the settlement agreement that Respondent is not required "to vary or abandon any economic benefit which has heretofore been established " However, this coupling of the so-called commitment and the notice avail Respondent nothing Indeed, to agree with Respondent is to say that the terms and conditions of the incumbent shed clerks and maintenance-repairmen were deemed, under the settlement agreement , to have been settled for all time on the basis of benefits which are not yet in existence or may yet accrue, and to leave nothing for negotiation as to these individuals . Stated other- wise, so to conclude is to reduce the order to bargain as to them , in the set- tlement agreement, to an exercise in futility. There is no warrant for doing so 16 The testimony was as follows: Q. Was anything in regard to wages discussed at this meeting? A Mr. Powell asked what did we want, what were we down there for, and I told him this was what we were down there- he said, "what do you want us to do," and I said, "We want you to do the same thing for these people or these classifications, the people in these classifications that's doing these Jobs that you describe here in the description of their duties , as you did with the maintenance people before, and breaking down their monthly salary on an hourly basis and set up some classification for shed clerks, as such, and main- tenance-repairmen." I felt at that time that we had an understanding with one another He told me that he would go back and break down these monthly sala- ries of these people on an hourly basis and the next meeting we would have we would go in and try to reach some agreement on these clas- sifications " So far as the record discloses, such wage offers, as were made, re- lated only to hourly employees in classifications initially included in the contract unit and to future employees in the classifications of shed clerk and maintenance-repairman 18 The pertinent language of the letter was that, in compliance with the terms of the settlement agreement, "notice is hereby given that, effective September 1, 1966, an increase of ten percent (10%) will be made in the compensation of all salaried employees at the South Memphis plant Em- ployees affected will include C. C Aderholt, W. A Harder, Steve Van- devender, J E Sanders, Fred Light, R. A. Spann, James Shead, Earnest Walker and F. J Searcy." is Emphasis supplied 211 Korn Industries, inc , 161 NLRB 866 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production and maintenance employees, excluding all other employees such as supervisors, office, clerical em- ployees, and engineers, watchmen, and employees doing police duty. As already found, pursuant to a Decision and Order issued by the Regional Director for Region 26 of the Board. on October 18. 1965, in Case 26-UC-1, Respondent's employees working in the classifications of shed clerk and carpenter (maintenance-repairman) were included in the above unit.21 In view of all the foregoing, I find that the following unit is, and has been, since Oc- tober 18. 1965, the appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of Re- spondent at its south Memphis, Tennessee, plant, includ- ing shed clerks and maintenance-repairmen (carpenters) but excluding all other employees such as office, clerical employees, and engineers, watchmen, and employees doing police duty, and supervisors as defined in the Act. 2. The majority issue The parties stipulated that the Union represented a majority of the employees in a unit of production and maintenance employees including shed clerks and car- penters (maintenance-repairmen) as of the date of the Re- gional Director's Decision on October 18, 1965, and throughout the period that this decision was pending be- fore the Board on appeal. Under the circumstances, and as the presumption of the continuance of the majority status thereafter has not been rebutted by Respondent,22 I conclude and find that, at all times material herein, the Union has represented a majority of the employees in the aforesaid appropriate unit. 3. The unilateral wage increase granted during the presettlement period The record establishes, and I find, that Respondent did not, during this period, fulfill its bargaining obligation under the Act. More specifically, the record discloses, and Respondent concedes, that Searcy and Spann. both of whom were included in the unit on October 18, 1965, as shed clerks, received a wage increase on April 7. 1966, and that Respondent did not discuss this wage increase with the Union before it went into effect. In its brief, Respondent makes reference to the institution of wage in- creases on the above date but denominates all the recipients thereof as supervisory employees. In view of my findings hereinafter that (1) Searcy. Spann, and all other shed clerks included in the unit on October 18, 1965, had not at any time relevant herein undergone a change of status to that of supervisor and (2) article XVII(a) of the then current contract did not, contrary to Respondent's contention, excuse it from bargaining for 21 1 have heretotore noted that the Board thereafter denied Respond- ent's request for review of this decision and Respondent's motion to reconsider such denial E2 Shamrock Dairy Inc , et a[, 119 NLRB 998, and 124 NLRB 494, enfd 280 F 2d 665 (C.A.D.C.) 23 N.L R B v Benne Katz d/b/a Williamsburg Steel Produc is Co., 369 U S. 736, 743, N.L R B v American Manufacturing Company ofTexas, 351 F.2d 74, 79 (C.A. 5) 24 Spann , Taylor, and Shead 21 Harder. 26 Vandevender, J E Sanders, Light, Veazey, Turk, Searcy, Williams, and Wallace shed clerks and maintenance-repairmen during other than the open period of that contract, I am convinced, and I find further, that by unilaterally instituting the above wage increase on April 7, 1966, for employees in the ap- propriate unit, Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the Act.23 4. The unilateral wage increase granted during the post- settlement period I have already found that Respondent violated the set- tlement agreement during the period by the unilateral grant on September 1, 1966, of a wage increase of 10 per- cent to all its salaried employees, including two main- tenance-repairmen and seven shed clerks. For reasons al- ready given in connection with the unilateral wage in- crease of April 7. 1966, which are equally applicable here, I find that this more recent unilateral action also violated Section 8(a)(5) of the Act. 5. The postsettlement bargaining As already noted, no actual bargaining took place dur- ing the presettlement period. Indeed, Respondent then manifested an unwillingness to bargain concerning shed clerks and maintenance-repairmen by the following: (1) it omitted any reference to these two classifications from the information furnished to the Union in its letter of November 3, 1965; (2) in its letter of March 24, 1966, in which it supplemented the above information, it listed only 324 of its 10 shed clerks, and 125 of its 2 maintenance-repairmen; and (3) after the Union's letter of March 28, 1966, urging information as to the rest of the shed clerks2fi and as to the other maintenance-repairman.27 Respondent informed the Union, by letter of April 8, 1966, that among these, Van- devender. J. E. Sanders, Light, Searcy. and Aderholt were still in its employ, that Vandevender was promoted to foreman on August 26, 1965, that J. E. Sanders, Light, Searcy. and Aderholt had been promoted to foreman status on September 9. 1965.26 and that Spann, who had been mentioned in its prior letter to the Union, was similarly promoted on March 24, 1966.29 In sum, except as to Shead and Taylor, Respondent was, during the presettlement period, unwilling to accept as conclusive the decision in the unit clarification proceeding and was adhering to its position therein that shed clerks and main- tenance-repairmen are, inter cilia, supervisors.30 Thereafter, in consequence of the undertaking in the set- tlement agreement to bargain collectively as to shed clerks and maintenance-repairmen, the parties met on three occasions, viz, August 4, August 25, and Sep- tember 15. 1966. During these negotiating sessions, Respondent, in effect, clung to its presettlement position by rejecting the Union's request that Respondent bargain 27 Aderholt 28 The hearing in the unit clarification proceeding was held on Sep- tember 10, 1965. 2" As already noted, in a subsequent letter to the Union, Respondent changed this date to September 9, 1965. 11 In this connection, Powell testified as follows while appearing as a witness called by the General Counsel under section 43(b) of the Ad- ministrative Procedures Act: "Well, I thought at first we didn't have to bargain with them In fact, I talked to you [counsel for the General Coun- sel herein] about the fact that I didn't think we had to bargain with them, because we had a contract with them. When we signed this notice to all employees we agreed that we would bargain with them " FEDERAL COMPRESS & WAREHOUSE CO. 669 collectively as to those very individuals who had thereto- fore been placed in the unit pursuant to the prior Board unit clarification proceeding, and by offering instead to bargain only as to their exclusion from the unit. As Respondent explains in its brief, it was willing to bargain with the Union in order to show that these individuals were not included in the unit but had had "a change in duty which made them supervisors and. therefore, ex- cluded them from the unit." This the Union properly refused to do, since Respondent was raising the same issue which had been settled by the prior Board proceed- ing. I am cognizant that Respondent's obligation to bargain as to these individuals, who were found not to be super- visory in the unit clarification decision, might, under some circumstances, be altered by developments sub- sequent thereto. Thus, it is well settled that issues which were raised in the underlying representation case and there litigated and decided by the Board may not be relitigated in the subsequent unfair labor practice case and that the Trial Examiner is bound by the Board's ac- tion regarding such matters, subject to the exception that the Trial Examiner may not exclude new or previously unavailable evidence which could affect the outcome of the proceeding.31 Respondent asserts, in its brief, that its shed clerks and maintenance-repairmen, who were in- volved in the unit clarification proceeding, have always been supervisors, but because it failed to establish this in that proceeding it "decided to enlarge [their] supervisory authority so that their status would not be subject to question." It did this, the brief continues, (1) by issuing instructions to each one as to what his duties and rights were as well as his right to discharge employees working under him, which instructions constituted a promotion;32 (2) by telling these individuals after January 1, 1966, to keep records of such matters as hiring, firing, reprimand- ing, etc.; and (3) also after January 1, 1966, by giving some of these individuals the additional duty of licensed weigher. Examination of the evidence adduced by Respondent in respect to the above demonstrates that none of the evidence was newly discovered and that such evidence as was unavailable at the time of the hearing falls short of establishing a change of duties sufficient to impair the validity of the findings in the unit clarification proceeding that these individuals are not supervisors. Respondent's argument that it has, since the unit clarification proceeding, enlarged the "supervisory authority" of its shed clerks and maintenance-repairmen must be viewed against the following backdrop: For reasons best known to it, Respondent did not disclose during the course of the unit clarification proceeding on September 10, 1965, what it now asserts and then must have known, viz, that Vandevender was promoted by it to foreman on August 26, 1965, and that others, including Sanders, Light, Aderholt, and Harder were also promoted to foreman on September 9, 1965, the day be- fore the hearing. Strangely, too, (1) the individuals in- volved in the promotions were not so advised;'.' even though the claimed purpose of the promotion was to clari- fy their duties and responsibilities '34 and (2) the Union was not told thereof until April 8, 1966, and then only after prodding by the Union for information as to named shed clerks and maintenance-repairmen. Even stranger is the fact that, as to some individuals , Respondent gave shifting dates for such promotions . Thus, as to Spann, it first gave March 24, 1966, as the date of his promotion and, by a subsequent letter, it gave the date as September 9, 1965. Also as to Searcy , it first gave September 9, 1965, as the date of promotion , and in a later communica- tion to the Union , it gave the date as after the issuance of the complaint herein. In these circumstances , I attach no probative force on the issue of supervisory status to the fact that these individuals are now denominated foremen. Further, such evidence does not fall into the category of being newly discovered or of having been unavailable at the time of the representation proceeding . And with respect to Searcy , assuming his promotion to foreman after the hearing in the unit clarification proceeding, and with respect to Walker who was allegedly promoted to foreman in September 1966, I attach no significance to their classification change because, in each case, they were replacements for individuals who were themselves apparently promoted from shed clerk to foreman and their foreman title is similarly vulnerable. We come now to Respondent 's claim that it issued in- structions to the individuals in the above two classifica- tions, which instructions themselves constituted a promo- tion. Apart from a weighing function and some record keeping function which are detailed hereinafter , it does not appear that they were given additional or new duties after January 1966.35 Thus, although Manly, the plant su- perintendent and a vice president , testified that he issued instructions to the general foreman and assistant superin- tendent to tell all those affected that they had the right to hire and fire, reprimand and grant time off, he testified further that he did not know that he told the general foreman and assistant superintendent that these duties were new ones and that "actually [they were not new]. We would have respected it prior to that." Additionally, Oldham testified that the duties of Light, Searcy, San- ders, and Spann are basically the same now as they were when they became breakout foremen in 1965, and that the instructions given them were "basically the same," as they have always been doing and were supposed to do. And with specific reference to their right of discharge, while there is testimony by Powell that the authority of shed clerks to discharge was vested in them when they were hired, it does not appear , on the basis of the entire record, that they ever had such authority. Thus, at another point , Powell himself modified this testimony by saying that, "they have been carefully instructed again•36 in just what their duties were and what their rights were, and if people working under their supervision didn't do as they were told to do, they would be discharged." (Emphasis supplied. ) That Powell's first-mentioned testimony was, in fact, exaggerated, is also apparent from 11 Pittsburgh Plate Glass Company v N L.R.B, 313 U S 146, 161-J62 , Quaker City Life mutt, w ce Companv . 138 NLRB 61, enfd 319 F.2d 690 (C A 4); Teleservue Co of Wyoming Valley, 149 NLRB 1053 31 These instructions allegedly included authority to hire and fire, to grant overtime , and to grant time off. 33 Vice President C. F Manly testified that , "[ he] didn't think it was necessary to notify them." 34 Respondent so claimed as to Aderholt and Harder in its letter to the UnionofJuly 22, 1966, in evidence as G.C. Exh 2(1) '' General Foreman Oldham acknowledged that the difference between shed clerks at the time of the unit clarification proceeding and at the time of the instant hearing was that they started keeping records of hiring, fir- ing, reprimanding, and the like, about September 1966. and "they are licensed weighers." 36 Powell added that they were given the same instructions that they were given before 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following testimony of Manly during the unit clarifica- tion proceeding as to the right of these individuals to hire and fire: "They do not have the authority to hire. That is done at one central place, but so far as firing is concerned, any time that a man is assigned a man and he does not do a job, or for any reason we feel he should be fired, he can fire him." (Emphasis supplied.) It would thus appear from the more credible testimony, and I find, that while shed clerks might do the ministerial act of discharging, the decision to discharge was always made, and is now made, by their superiors. Indeed, the credible evidence of em- ployee Leroy Boyd, Jr., establishes, as I find hereinafter, that the discharge of one Lacy Aldridge attributed to Searcy was, in fact, the act of Oldham. In addition to the foregoing, the instant record is replete with testimony, which I credit, by the very in- dividuals who are here alleged to be supervisors, attesting to the fact that their duties are the same now as they were at the time of the unit clarification proceeding, and before. Thus, Aderholt testified that his duties are the same as they have always been. Harder swore that he has always done the same work. Light avowed that his present job is that of carloading foreman which he has had for about 3 years. Spann testified that when he became loading foreman there was no change in his existing duties. San- ders acknowledged that he had the same duties at the time of the instant hearing as he had a year before that, and longer.37 Vandevender swore that, since he has been with Respondent, he has been doing the same work of tagging, that he was doing receiving and tagging last year in the fall, that before that he was doing a little bit of everything, the same as he was doing at the time of the in- stant hearing, and that with respect to night work, which he has been doing since September 1966, his duties are the same as they were last year. It was also his testimony that when he is on night work, he works with one or two employees and more, if needed, that he has no authority to hire or discharge, and, if problems arise, he calls Old- ham. Finally, Turk, who had quit as a blocking foreman in February 1966 for health reasons and returned the fol- lowing July or August to the same job, swore that, at the time of the instant hearing, he was doing approximately what he did a year ago and had the same type of responsi- bilities. I am aware, in connection with the foregoing, that Sear- cy testified that when he was promoted to breakout foreman in September 1966, he was told that he had authority to hire and discharge, and that he reprimanded and also discharged one Lacy Aldridge who worked in his gang. However, I am persuaded from the testimony of employees Leroy Boyd, Jr., and James Dinkins, that, in actuality, such authority as he had was only routine and ministerial in nature . Thus, Boyd, who drives a breakout machine, testified credibly that he has been working for Respondent for 21 years in the warehouse area, that for the last year or so he has worked with Searcy "most of the time," and that the only direction Searcy gave the crew is to tell them, on the basis of a list, "what number to go in ... to get the bale." With particular reference to the discharge of Aldridge, Boyd testified credibly that there was "some confusion" between Searcy and Al- dridge, that Oldham was standing there, and that it was Oldham who gave Searcy a card which Searcy, in turn, gave to Aldridge, when the discharge occurred. In this connection, it is noteworthy that Searcy acknowledged that the card reporting this action to Respondent is not in his handwriting and further that Old- ham testified that he had made out the card. Of sig- nificance, too, is the testimony of employee James Din- kins in respect to a situation on October 7, 1966, when he was granted time off from work. Dinkins testified credibly that he spoke to Searcy, with whom he was working, about the matter; that Searcy said that he, Sear- cy, would come back and let him know; and that Searcy left and returned, after an interval, saying that he had talked to Oldham and Oldham said that he thought it would be all right if he, Dinkins, returned by 2 o'clock.38 I note, too, that, although Respondent introduced into evidence a card by Turk reporting to management that he had discharged one Eddie Matthews on November 18, 1966, Turk, who was called as a witness by Respondent, denied, on direct, that he had discharged anyone during this period.39 In the light of all the foregoing, the record herein establishes to my satisfaction that, even granting that Respondent has since the unit clarification proceeding in- structed shed clerks and maintenance-repairmen as to their duties and responsibilities, and has told them that they had authority to hire, discharge, reprimand, grant time off, etc., such instructions had more form than sub- stance and did not, according to the credible testimony of the many individuals affected, result in an actual change in their duties or responsibilities from those which they maintained at the time of the unit clarification proceeding. In sum, the evidence falls short of establishing that, by these instructions, Respondent has, since the unit clarifi- cation proceeding, effected a change of duties among shed clerks and maintenance-repairmen. As already noted, one of the new duties allegedly as- signed to the individuals here in question was that of recordkeeping. It is interesting in this connection that, although Respondent urged in its brief that these in- dividuals were told thereof after January 1, 1966, Old- ham testified that he informed the men about this in Sep- tember of that year. And further, Oldham acknowledged that this assignment added nothing to these individuals' preexisting authority, summing up the change by the words, "there was just no record kept of it." Further- more, it would appear that records attributed to some of these individuals were not, in fact, kept by them, or, if kept by them, did not reflect the true situation. Thus, the record purporting to show that J. E. Sanders hired one Samuel Wright was admittedly not in Sanders' handwrit- ing; similarly, as already found, the record purporting to show that Searcy discharged Lacy Aldridge was admitted to be in Oldham's handwriting and, in addition, according to the credible testimony of Boyd, the discharge was ini- tiated by Oldham; and further, in the case of Turk, while the record card, in evidence, purports to show that he discharged Eddie Matthews, the credible testimony of Turk, himself, refutes this. It is therefore clear, and I find, that little probative force on the issue of supervisory 37 Employee Shelby Hayslett testified credibly that he has been work- ing with Sanders and Light for the last 3 years and their duties have not been any different throughout this period 38 Although Resp. Exh 4, in evidence, refers to another incident on Oc- tober 13, 1966, in which Searcy also granted Dinkins time off for the rest of the day, I credit Dinkins' further testimony that there was only one in- cident of this kind, i e , the one referred to in the text, above 39 Turk also testified, on direct, that he has never hired anybody and has "never really reprimanded anyone " FEDERAL COMPRESS & WAREHOUSE CO. 671 status attaches to the change involving record keeping by individuals in issue here. With respect to the duty of acting as weighers, which was assertedly assigned to some shed clerks and main- tenance-repairmen after January 1, 1966, by Respondent, it is noteworthy that this change is of rather recent origin also. Thus, except for Light who testified that he obtained his weigher's license from the Department of Agriculture about 3 or 4 months ago '40 other affected individuals, namely, Spann, Vandevender, and Sanders, fixed the time as about 3 to 4 weeks, 2 weeks, and 1 week, respec- tively, before the instant hearing, and Aderholt testified that he was now taking apprenticeship training in weighing. Indeed, at one point, Manly acknowledged that all these men were really trainees. Furthermore, the as- signment of weighing is more in the nature of a work duty than a task involving the direction of others. Thus, the weigher operates the scale himself and he is alone respon- sible for the correct weight of each bale of cotton, for checking each bale against the existing record thereon, for seeing that there is no outside damage to the bale, and for issuing the Government bonded warehouse receipt which shows the weight. Insofar as bringing the bale to the scale and removing it therefrom, that is the work of the clippers who, in the case of the railroad car, for exam- ple, go into the car to bring the cotton out and then bring it by handtruck to the scale. These clippers do not appear to be subordinates of the weighers. While there have been instances in which unlicensed weighers have weighed under the guidance of a licensed weigher in order to quali- fy as licensed weighers, the unlicensed weighers have ap- parently done so without forsaking for any given period their regular duties and without becoming subordinates of the weighers. In all these circumstances, I am per- suaded, and I find, that the assignment of weighing to in- dividuals here involved did not, in any material way, en- large upon or change their status, which was found to be nonsupervisory in the unit clarification proceeding, to that of supervisor. As heretofore mentioned, Respondent contends, apart from the foregoing, that the existing contract, which ex- pires December 31, 1966, excused it from bargaining during its term concerning "any changes or additions to the bargaining unit," viz, as to shed clerks and main- tenance-repairmen.41 In this connection, section XVII(a) of the contract states, in relevant part, that: This agreement constitutes the sole and entire agreement between the parties hereto as of the date hereof and shall become effective and remain in force for the term hereof as provided in paragraph (b) of this section unless earlier changed or modified in writing by the mutual agreement of the parties hereto. During the terms of this agreement no change or modification shall be binding upon either of the parties hereto unless this same shall have been reduced to writing and signed by both parties hereto. Reading this "zip-up" clause together with (1) the recog- nition clause which excludes clericals from the covered unit,42 (2) the provision making the contract binding on the parties until December 31, 1966, and annually thereafter, absent notice by either party to the other 60 days before such terminal date of a desire to modify or change it; and (3) the absence of any notice by the Union thereunder of a desire to change this agreement, Respond- ent reasons therefrom that the effect thereof was to ab- solve it, during the period of the alleged refusal to bai gain with the Union, from bargaining as to the shed clerks and maintenance-repairmen. I find this contention to be lacking in merit for the fol- lowing reasons: The execution of a collective-bargaining agreement does not, under well-established principles, terminate the employer' s continuing duty to bargain, and the provision of Section 8(d) of the Act that neither party is required "to discuss, or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract" does not operate to freeze the bargaining relationship in its entirety during the term of the contract. When subjects are brought forth for discus- sion during a contract term which were neither discussed in negotiations for the contract itself nor embodied in the contract, the duty to bargain concerning these subjects, assuming they are mandatory subjects of collective bar- gaining, remains during the contract term.43 It is apparent that the classifications of shed clerk and maintenance-repairman and terms and conditions affect- ing them were not discussed during prior contract negotiations. And further, the intervening Board decision, which clarified the unit to add these very classifications, considered and rejected the contention of Respondent that the exclusions spelled out in the contract unit encom- passed these two classifications. In all these circum- stances, I find untenable Respondent's position that the contract itself, including section XVII(a) thereof, precludes a finding under the Act of refusal to bargain concerning shed clerks and maintenance-repairmen dur- ing the life of the contract. I, therefore, conclude, and find, that Respondent has, by its conduct with respect to the classifications of shed clerk and maintenance-repair- man at the inception of, and during negotiations, violated Section 8(a)(5) and (1) of the Act. In sum, as there are absent any overriding considera- tions, I conclude, and find, that Respondent has, since April 7, 1966, violated Section 8(a)(5) and (1) of the Act (1) by unilaterally granting wage increases to employees in the contract unit on April 7, 1966, and on September 1, 1966, in derogation of the Union, the exclusive bar- gaining agent of these employees; (2) by refusing to negotiate with the Union concerning the classifications of shed clerk and maintenance-repairman in the unit, except during the open period of the contract; and (3) during such negotiations as were held with the Union in August 40 1 find that Light was in error, since Manly testified with more defini- tiveness, and I credit him, that the date for Light was October 18, 1966 This latter date was less than 2 months before the instant hearing. 41 Respondent amended its answer herein at the hearing to include this defense and based a motion to dismiss the complaint thereon. I reserved ruling on the motion, which I now deny 42 Respondent implies that this exclusion encompasses shed clerks 43 N L R.B v Jacobs Manufacturing Company, 196 F 2d 680 (C A. 2), enfg 94 NLRB 1214, see also Allied Mills, inc., 82 NLRB 854, where the Board considered the limitation respecting the duty to bargain in Sec- tion 8(d) of the Act and held that it did not relieve the subject employer of his obligation to bargain concerning a "Retirement Plan" where no terms in respect thereto were written into the contract and no question of waiver by the Union existed It is noteworthy, in this connection, that the Board has consistently held that a waiver of the right to bargain during the term of a contract as to subject matters not covered therein will not be found, absent a clear and unmistakable waiver thereof by the Union contained in the contract itself or expressed at the bargaining before the contract was signed Perkins Machine Company, 141 NLRB 98 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and September 1966, by conditioning wage increases for other classifications of employees (who were in the unit at the time the classifications of shed clerk and main- tenance-repairman were added thereto by Board deci- sion) upon the exclusion of incumbent shed clerks and maintenance-repairmen from the unit, and by offering to bargain only as to future employees in these two classifi- cations. Upon the basis of the entire record, I make the follow- ing: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All production and maintenance employees at its south Memphis, Tennessee, plant, including shed clerks and maintenance-repairmen (carpenters), but excluding all other employees such as office, clerical employees, and engineers , watchmen , and employees doing police duty, and supervisors as defined in the Act. 4. The Union has been at all material times herein, and now is, the exclusive representative of all employees in the aforesaid bargaining unit within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on and since April 7, 1966, to bargain' collectively with the Union as the exclusive bargaining representative of certain employees in the aforesaid bar- gaining unit, namely, shed clerks and maintenance -repair- men (carpenters), and by unilaterally granting wage in- creases to such employees Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that Respondent cease and desist therefrom and from interfering in any like or re- lated manner with the efforts of the Union to bargain col- lectively with Respondent. I shall also recommend affirm- atively that Respondent bargain with the Union, upon request, as to all employees in the appropriate unit44 and post appropriate notices. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, its officers, agents, successors, and assigns , shall: - 1. Cease and desist from: (a) Refusing to bargain collectively in good faith con- cerning rates of pay, wages, hours of employment, or other conditions of employment with Retail, Wholesale and Department Store Union, AFL-CIO, Local 19, as the exclusive representative of the employees in the fol- lowing appropriate unit: All production and maintenance employees at the south Memphis, Tennessee, plant of Respondent, includ- ing shed clerks and maintenance-repairmen (carpenters), but excluding all other employees such as office, clerical employees , and engineers, watchmen , and employees doing police duty, and supervisors as defined in the Act. (b) Refusing to bargain collectively by unilaterally changing the wages and other terms and conditions of em- ployment of employees in the above-appropriate unit without prior consultation with the above-named Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to join or assist a union, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for mutual aid or protec- tion; provided, however, that nothing herein shall be con- strued as requiring Respondent to rescind , abandon, or vary any economic benefit or any term or condition of employment heretofore established. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant in south Memphis, Tennessee, co- pies of the attached notice marked "Appendix." Such notice,45 to be furnished by the Regional Director for Region 26, shall, after being signed by an authorized representative of Respondent, be posted immediately upon the receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director for Region 26, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.46 44 This encompasses the classifications of shed clerk and maintenance-repairman (carpenter), including therein all individuals who became part of the unit by reason of the unit clarification proceeding, even though they may now be differently classified , e g , as loading and unload- ing foreman, carloading foreman, loading foreman , blocking foreman, breakout foreman, or plant maintenance foreman. In the event that there is currently a contract in effect between the parties as to all classifications , except those of shed clerk and maintenance-repairman (carpenter), which was the case at the time of the hearing herein, then Respondent is to bargain with the Union, if so requested, as to the classification of shed clerk and maintenance -repair- man (carpenter) on the inclusive basis described immediately above 45 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order," shall be substituted for the words "a Decision and Order." 46 In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith " FEDERAL COMPRESS & WAREHOUSE CO. 673 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT refuse to bargain collectively in good faith with Retail , Wholesale and Department Store Union , AFL-CIO, Local 19, as the exclusive representative of all the employees in the bargaining unit described below. WE WILL NOT unilaterally change the wages and other terms and conditions of employment of em- ployees in the bargaining unit described below without prior consultation with Retail , Wholesale and Department Store Union , AFL-CIO, Local 19. WE WILL, upon request, bargain with Retail, Wholesale and Department Store Union, AFL-CIO, Local 19, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay , wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an understanding is reached , embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees em- ployed at our south Memphis, Tennessee, plant, including shed clerks and maintenance-repair- men (carpenters) but excluding all other em- ployees such as office, clerical employees, and engineers, watchmen, and employees doing po- lice duty, and supervisors as defined in the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to join or assist a union, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid or protection; provided, however, that nothing herein shall be construed as requiring us to rescind, abandon, or vary any term or condition of employment heretofore established. Dated By FEDERAL COMPRESS WAREHOUSE COMPANY Employer (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Ten- nessee 38103, Telephone 534-3161.