Tampa Ship Repair and Dry Dock Co., Inc.

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tampa Ship Repair and Dry Dock Company, Inc. and Lodge No. 570, International Association of Ma- chinists and Aerospace Workers, AFL-CIO. Case 12-CA-5583 March 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On September 13, 1972, Administrative Law Judge Sydney S. Asher issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and finds merit in certain of the Respondent's exceptions. Accordingly, while we have decided to affirm the Administrative Law Judge's findings and conclusions to the extent consistent herewith, we shall dismiss the complaint in its entirety. The Administrative Law Judge found that Respon- dent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the certified representative of a unit of machinists after the Union had timely and unequivocally requested separate bargaining. We disagree. After a consent election, the Union was certified on August 3, 1949, as the representative of a unit of "all machinists (including toolroom machinists) and machinists' helpers" at Respondent's ship repair and conversion facility in Tampa, Florida. From then until April 1960 Respondent and the Union negotiat- ed and executed several agreements. During this period Respondent also employed members of various other crafts who were represented by the traditional craft unions. By at least 1958 the AFL-CIO metal trades department had chartered the Tampa Metal Trades Council (herein the Council) which was composed of representatives of the craft unions representing Respondent's employ- ees. Prior to the expiration of its contract in April 1960, the Union joined the Council. In early 1960 the council members met and formulated joint demands which were presented to Respondent. The negotiating sessions, which were chaired by the council's president, resulted in a contract effective from May 1, 1960, to April 30, 1962. It was automatically renewable thereafter from year to year. The 1960 contract's preamble listed Respondent and each of the unions, including Machinists, followed by the words "individually and severally." A representative of each craft union separately signed the agreement. The Council was not mentioned and, although the unit was described as "all employees represented by the above named Unions of" Respondent, the contract further stated: The above described bargaining unit covers the Company's employees as above limited perform- ing work which is normally and traditionally performed by such employees in this yard and/or this port. The contract provided that each union shall process its own grievances, select its own stewards, and retain "the right of crafts to perform . . . work in accordance with established shipyard practice." An identical contract was executed in 1962, following the same procedure; the parties did not negotiate again until 1969. The 1969-72 agreement was negotiated in the same manner as the earlier agreements. It was basically the same contract except that a step three grievance was to be submitted to a six-man committee-three from Respondent and three from the Tampa Metal Trades Council. Also, a pension fund "for each of the crafts covered by this contract" was negotiated. On February 9, 1972, the Union by letter informed Respondent that it was exercising its contractual right to terminate the contract on April 30, 1972, its expiration date. The Union suggested that negotia- tions begin so that a contract would be in effect by May 1, 1972, and stated that "both our interests would be best served by an Agreement separate and aside from the involvement of other Unions." On February 22, Council President Causey wrote Respondent "requesting that we enter into negotia- tions for a renewed agreement." Thereafter, by letter dated February 29, Respondent declined to enter separate negotiations with the Union. It stated that, given, the bargaining history, the Council is the bargaining agent for the entire complement of its organized employees and the various craft unions negotiate "collectively as a single bargaining agent rather than as separate bargaining agents for their respective locals." About this time, notwithstanding its February 9 letter, the Union attended a council meeting where the unions' joint bargaining proposals were dis- cussed. Thereafter, the Union mailed its demands to Causey. Despite an invitation from Respondent to join the council negotiations, the Union did not participate. However, Council President Causey stated to Respondent that the Council was negotiat- ing for all crafts, including the Union. During the negotiations, Causey presented the Union's separate but similar demands to Respondent. At various times Causey informed the Union by telephone of the 202 NLRB No. 62 TAMPA SHIP REPAIR AND DRY DOCK CO. progress of negotiations and, after tentative agree- ment had been reached with Respondent, the Union told Causey it would look at the contract to see if it liked it. A 3-year agreement effective May 1, 1972, was subsequently executed. Its nomenclature was changed from that of earlier contracts. Thus, the parties are Respondent and the Council, "consisting of" the listed unions, including Machinists, and the Council is recognized as the bargaining agent for all employees. Causey signed for the Council and each union's representative also signed, except Machinists. The Judge found that after the 1949-60 period of separate. bargaining between Respondent and the Union there was no clear and unequivocal showing that the parties intended to abandon separate craft bargaining and merge the separate Machinists unit into a larger multicraft unit. He concluded that the crafts bargained together merely as a matter of convenience and that, because the Union's February 9 request to Respondent for separate bargaining was timely and unequivocal, Respondent thereafter was under a statutory duty to recognize and bargain with the Union in the certified unit. By refusing to bargain with the Union, the Judge concluded, Respondent dealt with the Council at its peril with respect to the Machinists and thus violated the Act. We find, contrary to the Administrative Law Judge, that the Union's purported withdrawal from multicraft bargaining was not unequivocal. Thus, after attending the meeting where the other unions discussed the Council's joint bargaining demands, the Union submitted its bargaining proposals to the Council and during the negotiations, Council Presi- dent Causey presented the Union's demands to Respondent. Throughout the multicraft negotiations the Union was informed by Causey as to their progress, and the Council advised Respondent that it was authorized to negotiate for the Union. Although after tentative agreement had been reached, the Union refused to sign, we find that its prior conduct during the negotiations was not consistent with an unequivocal withdrawal from multicraft bargaining. Accordingly, we do not find, under these particular facts and circumstances, that Respondent violated the obligations of Section 8(a)(5) by its insistence and adherence to the bargain reached in the multicraft negotiations and its correlative refusal to negotiate separately with the mechanists Union after the multicraft agreement had been reached. I The Respondent is, and at all material times has been, a Florida corporation with its principal place of business in Tampa, Florida, where it repairs and converts domestic and foreign ships. The Respondent annually 369 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION SYDNEY S. ASHER, Administrative Law Judge: On March 30, 1972, Lodge No. 570, International Association of Machinists and Aerospace Workers, AFL-CIO (Machin- ists), filed charges against Tampa Ship Repair and Dry Dock Company, Inc. (Respondent), Tampa, Florida. Based on these charges, the General Counsel of the National Labor Relations Board (General Counsel) on May 10, 1972, issued a complaint alleging that since on or about February 29, 1972, the Respondent has refused to recognize and bargain with the Machinists as the exclusive representative of all employees in an appropriate unit, despite the selection of the Machinists as such representa- tive, although requested by the Machinists to do so. It is alleged that this conduct violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), as amended (29 U.S.C. Sec. 151, et seq.). Thereafter the Respondent filed an answer denying that the unit described in the complaint was appropriate for purposes of collective bargaining, and denying that the Machinists was the exclusive bargaining representative for all employees in the said unit. Affirmatively, the answer alleges that the Machinists designated the Tampa Metal Trades Council (Council) as the exclusive bargaining representative of all employees of the Respondent, including employees in the alleged appropriate unit, and that since then the Council has served as such. The answer admits, however, that the Machinists demanded recognition as the exclusive bargain- ing representative of the employees in the alleged appropri- ate unit and that since on or about February 29, 1972, the Respondent has continuously refused to recognize and bargain with the Machinists as such. Upon due notice, a hearing was held before me on June 13 and 14, 1972, at Tampa, Florida. All parties were represented and participated fully in the hearing. After the close of the hearing, the General Counsel, at my request, filed a proposed remedial order. Although given an opportunity to do so, no party has filed any other brief. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the answer admits, and it is found, that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards; I and that the Machinists is, and at all material times has been, a labor organization as defined in the Act. receives at its Tampa, Florida, shipyard materials valued at more than $50,000, shipped directly from origins outside the State of Florida. The (Continued) 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Setting Respondent was originally incorporated in 1948. It engaged primarily in topside repair of ships.2 What has been described by one of the General Counsel's witnesses as corporate "reorganization" of the Respondent took place in January 1951; and "dissolution" of the "old company" and establishment of the "new company" occurred in 1964. Whatever the exact nature of these transactions, it appears that the composition of the work complement remained substantially unchanged. In the parlance of labor law, the "employing industry" continues as before, without meaningful alteration. During all material times, the Respondent employed members of various crafts, such as boilermakers, machin- ists, painters, carpenters, plumbers, etc. Sometimes mem- bers of different crafts work side by side aboard ship. Some of their work is a highly integrated operation, each craft assisting the other in the completion of the total job. With regard to machinists, the Respondent employs two categor- ies: Inside machinists operate lathes, drill presses, and other tools in the shop. They perform repair and mainte- nance of parts which are taken off the ship and brought to the shop to be worked on, and after repair are taken back to the ship. Outside machinists work aboard ship and open up machinery for repair. Sometimes they take parts to the shop for repair, and after repair, return them aboard ship and reassemble them. Machinists and their helpers engage in the traditional work of their craft at the Respondent's yard, and do not perform the work of any other traditional crafts. Throughout the events related below, each craft has maintained its separate seniority list, and each craft has selected its own union stewards. The machinists have had assigned to them a designated locker room separate from those occupied by other crafts. Identification badges issued by the Respondent to its employees include different designation numbers for each craft. C. Bargaining History Prior to 1972 On June 28, 1949, the Machinists filed with the Board a petition seeking to represent a separate unit of machinists and machinists' helpers employed by the Respondent (Case 10-RC-650). Thereafter the Machinists and the Respondent entered into an agreement for consent election, which describes the appropriate unit as: All machinists (including tool room machinists) and machinists' helpers, excluding all office, clerical, guard or watchmen, janitorial, professional employees, and supervisors as defined in the Act. The Machinists won the ensuing election and was certified by the Acting Regional Director on August 3, 1949. Thereafter bargaining began between representatives of the Respondent and representatives of the Machinists. This culminated early in 1950 in the execution of a collective- bargaining agreement covering employees in the above- Respondent derives annual income of more than $50,000 from repair and conversion of ships engaged in foreign and interstate commerce. 2 Topside repair involves work that does not require the ship to be put into dry dock In short, it is work that can be accomplished while she is afloat or while there is live steam in her boilers. 3 There is some indication in the record that, although the Machinists signed a separate contract in 1957, the negotiations leading up to this defined machinists' unit. On March 18, 1957, the same parties entered into another bargaining contract covering the same employees, to expire April 30, 1960, unless automatically extended from year to year.3 In the meantime (perhaps as early as 1956, certainly by 1958) the Metal Trades Department in Washington, D. C. (Department) affiliated with the AFL-CIO, had chartered the Tampa Trades Council (Council), composed of representatives of those craft unions which represented craft employees at the Respondent's shipyard.4 It is not clear when the Machinists joined the Council, but clearly the Machinists had affiliated with the Council sometime before April 30, 1960, the date when its separate contract with the Respondent expired. In preparation for negotiations with the Respondent in early 1960 the Council, through its officers, called a meeting of representatives of its member unions, including the Machinists. Together they worked out joint demands covering the employees of all the crafts, and presented them to the Respondent's representatives at a meeting attended by representatives of each craft union, and chaired by the Council's president. The Machinists participated fully. After bargaining in this joint fashion, the parties entered into a contract effective from May 1, 1960, to April 30, 1962, and automatically renewable thereafter from year to year. The preamble lists the Respondent and each of the craft unions, including the Machinists, then adds the words "individually and severally." The contract is signed by a representative of the Respondent and by a representative of each of the craft unions separately, including the Machinists. Nowhere in the document is the Council mentioned. The unit covered is described as "all employees represented by the above named Unions of Tampa Ship Repair & Dry Dock Co., Inc., at its plant or ports in Tampa, Florida," with certain exclusions not here material. There follows this language: The above described bargaining unit covers the Company's employees as above limited performing work which is normally and traditionally performed by such employees in this yard and/or this port. The grievance machinery is set up so that each separate craft union processes the grievances arising within its own ranks. For example, in describing the final step, arbitra- tion, the Respondent is required to communicate certain information "to the Union involved." There are these further provisions: Article 11. Work Assignments; Safety A. None but mechanics regularly employed as such shall do mechanics' work as covered by the jurisdiction of the Union coming under the provisions of this Agreement. B. The Company agrees, as a general policy in the assignment of work, to recognize the right of crafts to perform such work in accordance with established shipyard practice. This, however, shall not be construed agreement may have been jointly with other crafts. 4 There is testimony that an earlier Tampa Metal Trades Council had been chartered by the AFL in 1938 (before the merger of the AFL and the CIO) and that it had been dissolved in 1950 The General Counsel originally contended that no such organization as the Council existed prior to February 29, 1972 He later abandoned that position TAMPA SHIP REPAIR AND DRY DOCK CO. 371 as a basis for a Union to claim, through technical and arbitrary interpretations hereof, the right to create unnecessary jobs. C. None but mechanics in their respective crafts shall operate oxyacetylene torches or electric welding apparatus. D. Where oxyacetylene torches or other welding processes are used, each craft shall perform the work which was generally recognized as work belonging to that craft prior to the introduction of such processes. E. Craftsmen when working independently will be furnished sufficient competent help when needed to handle the work. Article 13. Hiring of Men, Management's Responsibili- ties, Etc. contracts. The grievance machinery is changed: at the third step the dispute is to be submitted to a committee of six members, one half representing the Respondent and the other half to be "members from the Metal Trades Council." This is the only mention of the Council in the agreement. The above-quoted provisions of the 1960 contract (from article 11 and article 13, also the visitation rights of union representatives), which are iterated in the 1962 contract, are reiterated in the 1969 contract. The 1969 contract added a new provision, as follows: In addition to the above wages, the Company shall also pay into a Pension Fund for each of the crafts covered by this contract, beginning May 1, 1969, the sum of five cents (5 ¢ ) per hour for each hour worked by each member of that craft. . . . Said five cents (50) paid into said Pension Funds shall be increased to ten cents (10 Q) per hour effective May 1, 1970, and to fifteen cents (15 ¢ ) per hour effective May 1, 1971. The 1969 contract was ratified by the employees in the same manner used in 1960 and 1962. C. During short periods when work for one particular group within the craft may be delayed, the mechanics and helpers thus unemployed may be distributed temporarily to do work of their craft for which they may be individually adapted, in preference to a lay-off, providing such distribution of employees will not cause displacement of employees in other groups. In article 15, Union Representation, "representatives of the Unions on official business" are granted access to the plant. This contract was ratified by employees of all the crafts involved (members of all the various unions) at a joint meeting presided over by an official of the Council. All the ballots were comingled in a single ballot box. Preparation for the 1962 contract, and bargaining for it, proceeded in the same pattern as had been used 2 years earlier. Ultimately the Respondent and the craft unions "individually and severally" entered into a new contract effective from May 1, 1962, to April 30, 1963, automatical- ly renewable thereafter from year to year. The provisions of the 1960 contract discussed and quoted above were retained, word for word, in the 1962 contract. As in the 1960 contract, the 1962 contract makes no mention of the Council. The 1962 contract was signed and ratified in the same manner as the 1960 contract had been, and the Machinists participated fully, as it had in 1960.5 The next negotiations between the parties took place in 1969. Here again the unions followed their former method of meeting together and agreeing to joint demands before negotiations began. As before, the Machinists participated along with the other unions in the formulation of joint demands and in negotiations. The negotiations proceeded as before, with one new element: the Department, at the request of the Council, sent an observer. The negotiations culminated in a new contract, effective from May 1, 1969, to April 30, 1972, and thereafter renewable from year to year in the absence of 60 days' written notice. The preamble is the same as that in the 1960 and 1962 5 In 1962 the parties initialed a memorandum amending the 1962 contract regarding matters not here material. D. The 1972 Negotiations Early in 1972, the Machinists joined with the other craft unions in the preparation of joint demands to be presented to the Respondent in the forthcoming negotiations looking toward a new contract. However, on February 9,6 the Machinists wrote to the Respondent in pertinent part as follows: You are hereby notified that pursuant to Article 23 of the current Agreement between Tampa Ship Repair & Dry Dock Company, Inc., Tampa, Florida, and the International Association of Machinists and Aerospace Workers, Local No. 570, AFL-CIO, the Union exercis- es its sixty (60) day minimum notification right to terminate the Agreement covering the employees of the Machinist craft effective April 30, 1972. May we suggest, that negotiations begin at an early date so that a new Agreement may be consummated and placed into effect May 1, 1972. At this time it is our resolve that both our interests would be best served by an Agreement separate and aside from the involvement of other Unions and expect to enter negotiations with this contention. On February 22 the president of the Council wrote to the Respondent "requesting that we enter into negotiations for a renewed agreement." On February 29 counsel for the Respondent, on the Respondent's behalf, wrote to the Machinists as follows: The Company hereby notifies you of its declination to enter separate negotiations with Lodge No. 570 with respect to what you have termed "employees of the Machinist craft." The Company feels that it is quite clear from more than two decades of bargaining history that the Metal Trades Council is the bargaining agent for the entire complement of organized employees at its Tampa Shipyard facility. Although the various crafts or skills are represented on the Council and each participates in the negotiations, they do so collectively 6 All dates hereafter refer to the year 1972, unless otherwise noted. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a single bargaining agent rather than as separate bargaining agents for their respective Locals. Assuming that Lodge No. 570 is still a member of the Council, the Company invites your attendance and participation during the forthcoming negotiations between the Company and the Metal Trades Council. Negotiations between representatives of the Respondent and representatives of the Council and the various unions began shortly after this. A representative of the Depart- ment participated. No representative of the Machinists attended. At the beginning of the negotiations either Chester H. Ferguson, Esq., the Respondent's attorney, or Sam Davis, president of the Respondent, asked R. H. Causey, president of the Council, where the Machinists' representative was. Causey replied that the Machinists' representative had been notified, but was not present. Ferguson showed Causey the letter of February 9 from the Machinists demanding. separate negotiations. Causey stated that the Council was negotiating on behalf of all its constituents, including the Machinists. The representative of the Department also informed Causey "that they were negotiating for all crafts including the machinists." Four negotiating sessions were held; the Machinists were not represented at any of them. Ultimately, the parties signed a contract effective May 1, 1972, through April 30, 1975, and automatically renewable thereafter from year to year in the absence of notice to the contrary. The parties are described as the Respondent, and the Council, "consisting of" the individual unions listed by name, including the Machinists. The recognition clause recognizes the Council as the exclusive bargaining agent for all employees of the Respondent, with certain exceptions not here material. The agreement is signed by Davis for the Respondent, and Causey for the Council. Each participating union's representative signed the document separately. Although a signature line was prepared for the Machinists' representa- tive, no agent of the Machinists ever signed. This contract was at first rejected by the members of the participating unions at a ratification meeting. But at a later such meeting it was ultimately ratified. Both ratification meetings were open to all union members, including members of the Machinists. Although the record does not show whether members of the Machinists participated in either of the ratification votes, it is clear that no official of the Machinists attended either of the ratification meetings in a representative capacity. R. Contentions of the Parties Counsel for the General Counsel contends that not only was the Machinists separately certified by the Board in 1949, but "there has been a definite preservation through- out the entire bargaining relationship of craft identities." He stated in oral argument at the hearing : "We are not seeking here craft severance. We are simply seeking to bargain on behalf of craft employees , individually, with a traditional representative." On the other hand , the Respondent maintains that "by virtue of the history from 1960 up until February of 1972, r In its answer the Respondent seems to base a defense on the corporate reorganization alleged to have taken place in 1951. At the hearing, the Respondent appears to have abandoned that position. In any event, the there was a merger of the bargaining unit . . . into the overall unit." So far as the separate certification of the Machinists in 1949 is concerned, the Respondent urges that consent election units are not controlling on the Board, and in any event "a unit certification is not forever." The former separate craft unit having been "merged," according to the Respondent, the only proper way for the Machinists to obtain separate bargaining rights would be through a representation proceeding seeking craft severance under the Board' s usual guidelines for such severance. Furthermore, the Respondent takes the position that from 1960 on "the Machinists delegated bargaining authority to the Tampa Metal Trades Council." Finally, the Respondent seems to hint that the Machinists, in withdrawing from multicraft bargaining without the prior consent of the other craft unions involved, acted in violation of the constitution and bylaws of the Metal Trades Department of the AFL-CIO.7 F. Conclusions Let us turn first to the 1949 certification of the Machinists in a separate craft unit. It is true, as the Respondent points out, that a stipulated unit is not binding on the Board and that units are not set in perpetuity; we must look to events which took place after the certification. In this case, the separate certified unit was honored by both contracting parties by the signing of a separate contract covering a machinists' unit from 1949 until 1960. This 11-year bargaining history cannot be lightly set aside as no longer important, unless thereafter the parties clearly and unequivoally showed their intent to abandon separate craft bargaining and to merge the separate machinists' unit into a larger multicraft unit. The Respondent contends that the 12-year joint bargaining from 1960 to 1972 demon- strates just such an intent. I cannot agree. Although some factors point in that direction (such as mention of the Council at the third step of arbitration in the 1969 contract and the method of jointly ratifying the contracts) they are relatively unpersuasive. More compelling are the indica- tions that no such merger was contemplated: (1) the conventional craft nature of the Machinists' unit, histori- cally recognized; (2) the fact that representatives of every union involved participated in the negotiations; (3) the naming of each union separately in the contracts' pream- bles; (4) the above-quoted provisions of articles 11 and 13 of the contracts; (5) the separate plant visitation rights granted in article 15 of the contract; (6) the separate seniority lists; (7) the separate union stewards; (8) the separate pension funds; (9) the individual craft indications on the identity badges; and (10) the separate lockerroom facilities provided for machinists. On balance, I am convinced that during the period in question (1960-72) the machinists preserved their identity as members of a craft separate and, apart from the various other crafts, and that they bargained together with the other craft unions merely defense lacks merit, because it is clear that the employing industry remained the same after 1951. TAMPA SHIP REPAIR AND DRY DOCK CO. as a matter of convenience. Accordingly, it is found that no merger of the machinists' unit with other crafts took place.8 If, as the Respondent argues, the Machinists had "delegated" its bargaining authority to the Council, the Machinists letter of February 9 provided adequate notice to the Respondent that such "delegation" had been terminated. Thereafter the Respondent dealt with the Council at its peril, so far as employees in the machinists' unit were concerned. Finally, the question whether the Machinists did or did not violate the Department's constitution or bylaws by withdrawing from joint bargain- ing without the consent of the other unions involved need not be answered. This is purely an internal union matter which cannot affect the Respondent's obligation to bargain set forth in Section 8(a)(5) of the Act. As the Machinists' request for separate bargaining was timely and unequivo- cal, the Respondent was under a statutory duty to recognize and bargain with the Machinists as the bargain- ing agent for the employees in the certified unit .9 This the Respondent failed to do. Upon the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Tampa Ship Repair and Dry Dock Company, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 8 Pacific Coast Shipbuilding Association, 157 NLRB 384; and Shell Oil Company, 116 NLRB 203. 9 A good-faith doubt of the unit's appropriateness does not provide a 373 2. Lodge No. 570, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(6) and (7) of the Act. 3. All machinists (including toolroom machinists) and machinists' helpers, excluding all office, clerical, guard or watchmen, janitorial, professional employees, and supervi- sors 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. 4. The above-named labor organization is, and at all material times has been, the exclusive representative of all employees in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and after February 29, 1972, to bargain collectively with the above-named labor organiza- tion as the exclusive representative of all employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the above-described conduct, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] valid defense to the Respondent' s refusal to bargain. Emerald Maintenance, Inc. v. N.LR.B., 464 F.2d 698 (C.A. 5). r