Cornell of California, Inc.

CORNELL OF CALIFORNIA 303 Cornell of California, Inc. and Northern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. Case 20-CA-9709 observation of the witnesses and the briefs of the paarties, I hereby make the following: FINDINGS OF FACT January 16, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On October 16, 1975, Administrative Law Judge James T: Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order. - ORDER- Pursuant to Section 10(c) of the National Labor Relations Act,-as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Cornell of California, Inc., Oakland, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I We note that the Administrative Law Judge found the refusal to bargain commenced on November 25, 1974, since that is the date alleged in the complaint. However, the Administrative Law Judge, apparently by inadver- tence, lists the refusal to bargain as beginning on November 23, 1974, in par, five of his Conclusions of Law. We hereby correct the- date the refusal to bargain began to November 25, 1974, in the Conclusions of Law DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me on August 26, 1975, pursuant to a complaint and notice of hearing issued on January 9, 1975, by the Regional Director of the National Labor Relations Board for Region 20. The complaint alleges violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, hereinafter called the Act. The charge giving rise to the complaint and notice of hearing was filed on November 7, 1974, by Northern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, hereinafter called the Union. Respondent timely filed an answer wherein it denied engaging in any unfair labor practices and raised certain affirmative defenses. The par- ties timely filed briefs with me. Upon the entire -record in this case, and based upon my 1. THE BUSINESS OF RESPONDENT Respondent is, and at all time material herein -has been, a California corporation with its principal office located in Oakland, California, where it is engaged in the manufac- - ture of neckties. During the fiscal year ending June , 1974, Respondent purchased and received goods valued in excess of $50,000, directly from suppliers located outside the State of Califor- nia. - Upon these admitted facts it is hereby found that, at all times material herein, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. - II. THE LABOR ORGANIZATION INVOLVED Northern California Joint Board Amalgamated Clothing Workers of America, AFL-CIO, is admitted by Respon- dent to a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A, The Issues The principal issue in this case is whether Respondent entertained a good-faith,doubt of the Union's majority sta- tus so as to relieve it of the legal obligation to bargain collectively with the Union. The sufficiency of the Union's bargaining demand is not in issue, and the parties stipulat- ed that since on or about September 3 Respondent has refused to bargain with the Union,I A subsidiary issue is whether the Union waived its bar- gaining rights by virtue of an alleged commitment to be bound by the results of a Board representation election held pursuant to an RM petition filed by Respondent on October 23. B. Pertinent Facts 1. Background facts a. The bargaining relationship On or about September 1, 1971, Respondent lawfully recognized the Union as the exclusive collective-bargaining representative of employees in the following described unit: All employees of the Employer, including shipping de- partment employees and excluding salesmen, design- ers, office clerical employees, guards and supervisors as defined in the Act. Thereafter, on or about October 11, 1971, the Respondent and the Union executed a collective-bargaining agreement covering the above-described employees, which agreement, by its terms, became effective on October 11, 1971, to re- main in effect through December 31, 1974. The collective- 1 Unless otherwise specified , all dates refer to the calendar year 1974 222 NLRB No. 38 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement contained a union-security provision requiring all unit employees to become and remain mem- bers of the Union after the expiration of 30 days of em- ployment. The agreement contained a dues-checkoff provi- sion, and the evidence establishes that Respondent checked off dues until late November 1974. By its terms the agreement renewed itself automatically in the absence of notice on or before October 1, 1974. Included in the agreement was an insurance provision containing a health and welfare plan. The Union has never been certified. b. The employee complement On September 3, 21 individuals were employed in the unit. Due to turnover, the size of the unit fluctuated from between 20 and 25 employees during 1974.2 Twelve unit employees have been in Respondent's employ at all times relevant herein. As of October 19, dues payments were being submitted on behalf of 20 employees and initiation fees were proffered on behalf of 2. Respondent's records reveal that, as of November 6, 21 unit employees were members of the Union.' c. The Company/Union hierarchy At relevant times, Frank Cornell was president of Re- spondent and Julius Kozak was Respondent's general manager. Cornell had ultimate management and executive responsibility with respect to Respondent's operations and traveled extensively. Kozak was vested with managerial au- thority over the day-to-day operation of the manufacturing plant. In this regard, he had full authority to hire and ter- minate employees. Cornell had ultimate authority in mat- ters of labor relations but Kozak had occasion to deal with matters pertaining to the operation of the collective-bar- gaining agreement and miscellaneous labor relations prob- lems. On September 4, Cornell was hospitalized for a peri- od of 8 days, and thereafter was in a recuperative state for a period of approximately 2 months. For the first 3 or 4 weeks following his release from the hospital, he was re- quired to substantially curtail his business activities and allotted himself no more than 3 hours per day at the office. In the meantime, Philip Siegel served as manager and business representative for the Union. His term expired on June 30, and he was succeeded by Sam Krips. In the capac- ity of manager and business representative both Siegel and Krips had responsibility for handling grievances and polic- ing the terms of the collective-bargaining agreement with Respondent.4 2. The alleged unlawful conduct a. The demand and refusal The parties stipulated that since on or about September 3, and continuing to the time of the hearing herein, the 2 The unit numbered as few as 17 employees at certain relevant times in 1975. 3 Sixteen employees for whom dues or initiation fees were shown to have been submitted on October 23 were listed as members of the Union as of the November date. This group was augmented by six additional names. Seven individuals for whom dues or initiation fees had been submitted in October were no longer included in the list of members. 4 The foregoing findings are based on stipulations of the parties, docu- mentary evidence of record, and/or credited and unrefuted testimony of witnesses appearing at the hearing Union has requested, and is requesting, Respondent to bar- gain collectively as the exclusive representative of the unit employees. The bargaining request was in the form of a letter dated September 3. On September 4, Cornell was hospitalized and Siegel learned of this. It was Siegel's understanding that Cornell had undergone heart surgery. Upon learning that Cornell had been released from the hospital and was returning to the office, Siegel visited Cornell. The meeting transpired during the last 2 weeks of October. The conversation was devoted primarily to the status of Cornell's health, and Sie- gel informed Cornell that he was not prepared to press bargaining demands until Cornell became a little "strong- er." However, Siegel did state that he desired to sit down with his committee and talk about a new bargaining agree- ment. To this statement, Cornell responded that he could not "live" with the agreement. Siegel responded that he would meet with his committee and discuss the matter and he would abide by what came out of the meeting. b. The withdrawal of recognition and refusal to bargain On October 23, Respondent filed an RM petition with the Board seeking an election among the employees in the unit covered by the collective-bargaining agreement. Thereafter, on November 7, the Union filed the instant unfair labor practice charges alleging a violation of Section 8(a)(5) of the Act. Subsequently, on or about November 22, Siegel met with Cornell at Cornell's office. During the course of the meeting, Siegel presented Cornell with a list of contract demands. The demands related to five different sections of the existing collective-bargaining agreement and to two additional topics. Included in the demands was a request for wage increases to become effective annually during the 3-year term of the ensuing agreement. In study- ing the demands, Cornell stated that he could not "live with it." Siegel responded that, nonetheless, he and the em- ployee committee would like to meet with Cornell and sug- gested that a meeting be held the following Wednesday. Siegel asserted that Cornell and the Union could negotiate on a proposal and there was "no need for all this hassle." Cornell responded that he would meet with his attorney and, if his attorney agreed, he would meet with the Union the following Wednesday.5 5 The foregoing is based on the credited testimony of Philip Siegel and documentary evidence of record. While the testimony of Siegel is not a model of clarity, an evaluation of his testimony on both direct and cross- examination reveals the sequence of events , as found, and establishes the substantive elements of the October and November meetings. The testimo- ny of Frank Cornell is not significantly at variance with that of Siegel, and in light of Cornell's confession that his memory of the events during the October/November period was affected by medication to which he was then subjected, I find no basis for discrediting those elements of Siegel's testimony which are at variance , either stated or inferentially, with Siegel's testimony. Specifically, with respect to the relative sequence of the October meeting and the filing of the RM petition , I am convinced, both upon an evaluation of Siegers testimony and the probabilities involved , that the ini- tial meeting between Siegel and Cornell preceded by a few days the filing of the RM petition. Thus, Siegel convincingly denied any direct discussion of the election matter during the course of the October meeting, and I specifi- cally find that no reference of any kind, either direct or indirect, took place during the course of that meeting. However, contrary to the explanation offered by Siegel during the course of his testimony on cross-examination, I find that his reference to obviating the "hassle" which transpired during the November 22 meeting related both to the pendency of the RM petition and to the filing of the November 7 unfair labor practice charge by the Union. CORNELL OF CALIFORNIA 305 The following Monday, November 25, Cornell called Siegel's office and left a message for Siegel to contact Cornell's attorney, George King. Siegel called King and informed King that he wanted to meet with Cornell and "get the show on the road." King responded that, if the Union wanted an-election, he and Cornell would meet with the Union. Siegel responded that the Union would not agree to go to an election. Thereafter, a few days prior to December 25, Siegel had another conversation with Cornell and stated that he want- ed to talk with Cornell about a contract. Cornell stated that the Company was willing to have a Board-conducted elec- tion and to abide by the results of the election. Siegel re- sponded that he would not be willing to go to an election, but Cornell agreed to give Siegel a written statement to the effect that the Company was willing to abide by results of an election. Thereafter, Cornell dispatched a letter to Siegel in which he stated the following: Pursuant to our telephone conversation we are will- ing to agree to an election and abide by the outcome of the election. The Union will agree to a withdrawal pending charges against the employer. Siegel referred the letter to his attorney.6 On January 17, Siegel dispatched a letter to Cornell de- manding that "no unilateral changes be made in the terms and conditions of employment that were in existence on December 30, 1974." In the letter, Siegel asserted that any changes made "without prior bargaining with the Union" would- be deemed unfair labor practices and dealt with ac- cordingly. Soon thereafter, Siegel met Cornell at a luncheon meet- ing and informed Cornell that it was "not too late." He stated that the Union and Company should bargain. Siegel also asserted that the Company had the obligation to "cov- er" the employees on their insurance. During the meeting, Siegel requested that Cornell execute a collective-bargain- ing agreement. Cornell stated that he would be out of town for the purpose of refereeing a tennis match and when he returned he would contact Siegel. Cornell failed to do so.7 Subsequently, Siegel and Cornell engaged in a dialogue concerning the necessity for the Company to continue to provide health benefits to the employees .8 Later, sometime in June, a meeting was held which was attended by Siegel and Krips representing the Union, and by Cornell and King representing Respondent. Prior to the luncheon meet- 6 The foregoing is based on a consideration of the testimony of Philip Siegel and Frank Cornell . I have also considered documentary evidence of record, including the January 2, 1975, letter from Siegel to his attorney. Upon a careful consideration of the testimony of Siegel and Cornell, I do not adopt as factual a statement in Siegel 's January 2 letter to the effect that, during the conversation between him and Cornell immediately prior to Christmas, Cornell stated that, if the Board ruled in favor of the Union on the matter of an election, the Company would agree to negotiate a contract The testimony of Siegel with respect to this element of the pre-Christmas meeting was not convincing and the testimony of Cornell lends no support in this regard. In the circumstances , the letter written more than 10 days following the conversation is not a reliable instrument upon which to base a finding. 7 The credited testimony of Philip Siegel and Frank Cornell establishes these findings. - 5 The record does not fix the time of this discussion. ing, Krips spoke with Cornell and, in substance, asked Cor- nell why he desired to spend funds on attorney fees. He inquired why it was not possible for the Company and Union to come to terms on a contract. Cornell responded, in substance, that he desired to be relieved of the obliga- tions of the collective-bargaining agreement and felt that the money spent to achieve that result was not excessive. He further added that King was skilled at achieving the objective sought. Soon thereafter, at the luncheon table, the question of Cornell's health came under discussion. In context of this discussion, Krips asked Cornell why they were in the "pre- sent predicament." Cornell responded that his operation was the only tie factory in northern California that was organized. He added that he could not pay the "ridiculous" wage rates and health and welfare costs being demanded of him in light of the competition that prevailed. Cornell not- ed that fashion changes had had an adverse impact upon his business and he stated that he wanted to get out of the contract. Krips responded that there were "people in- volved" but Cornell assured Krips that he would maintain a health plan of some kind. Thereupon, Krips asked Cor- nell what he was prepared to offer. Cornell responded that he would give his employees a "Blue Cross plan." Krips inquired whether the plan would be equal to the "Amalga- mated plan," and he was informed that the plan would be better. Krips responded, "Well, fine. Let's -see the plan. Send me a copy of the plan." Krips added that the employ- ees were not presently covered because the Company had stopped making contributions to the health and welfare plan, and if they became ill they would receive no benefits. Krips asserted that, in that event, the Company would be held liable for the benefits. He received assurances from King that the Company would "take that chance." Krips then broached the subject of the unfair labor practice charge pending before the Board and sought to take a sounding as to what could be accomplished to induce the Union to withdraw the charge. King responded that the Company would do nothing until the Board resolved all the issues raised by the filing of the representation petition. King added that he did not see how the Company could "lose."9 At this juncture, King announced that- he would have to leave to keep an appointment. Krips asked when he would see King again, and King answered, "We'll prob- ably meet in the NLRB hearing." Respondent did not thereafter submit a health and wel- fare plan for consideration. There has been no further con- tact between Respondent and the Union.10 3. The alleged good-faith doubt Commencing in June and for the ensuing 4 to 6 weeks, employees communicated to Julius Kozak their dissatisfac- tion with the Union. The range of complaints encompass asserted lack of contact with the Union, ineffectual repre- sentation, disorganized, meetings, and lack of benefit from union representation when measured against the dues as- sessed. Four separate employees contacted Kozak concern- ing their dissatisfaction and some of these employees con- 9 In point of fact the unfair labor practice charge had served to block the processing of the RM petition. 10 The foregoing is based on the credited testimony of Sam Krips I have also considered the testimony of Frank Cornell and find that it is supportive of some aspects of Knps' testimony but it is otherwise somewhat truncated. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tatted him several times during the period in question." He was informed by some of these employees that other employees constituting a majority of the unit employees felt the same way concerning the Union. Kozak was asked by-the employees who spoke directly with him how they could "get out of the Union." He-responded to some that they would have-to discuss the matter among themselves. He told others that he would take the question up with Mr. Cornell. Kozak informed Cornell of the contacts which he had received from the employees. In speaking with Cornell, Kozak summarized the nature of the complaints that he had received from the employees and Cornell responded that he would have to take the matter up with someone conversant with the law. Additionally, Cornell, himself, was contacted by the same four employees who had spo- ken with Kozak and, in substance, the input of these em- ployees was the same as that given to Kozak. On one occa- sion, a group of^three or four employees spoke with Cornell on the subject.12 Cornell gave no promises nor did he solicit the employees to resign from the Union. He did inform the employees that he would speak with his attorney on the matter.13 - Conclusions In agreement with the General Counsel I find that Re- spondent violated Section 8(a)(5) of the Act by withdraw- ing recognition from the Union and, on and after Novem- ber 25, refusing to bargain collectively with the Union as the representative of employees in an appropriate bargain- ing unit. The basic principles controlling the resolution of this matter were articulated by the Board in its recent decision in James W. Whitfield, d/b/a Cutten Supermarket, 220 NLRB No. 64 (1975), wherein the Board stated: It is well settled that Section 8(a)(5) and Section 8(d) of the Act require an employer to recognize and bargain in good faith with the bargaining representa- tive selected by a majority of its employees. That rec- ognition establishes a presumption of majority status which, in circumstances such as this, may be rebutted. The employer may lawfully refuse to bargain with the union-if it rebuts the presumption by affirmatively es- tablishing that the union has in fact lost its majority status, or shows that it has sufficient bases for reason- ably doubting the union's continued majority status. To establish sufficient objective bases, however, re- quires more than - the mere assertion thereof based upon the employer's subjective frame of mind. Fur- thermore, the employer must not have engaged in any conduct tending to encourage employee dissatisfac- tion with the union. In Cutten -Supermarket, as here, the employer had recog- nized the union voluntarily without benefit of a Board cer- tification, and had entered into a -collective-bargaining ]i Kozak's memory was hazy with respect to a possible fifth employee contact-Ida -Rapozo. i2 Cornell's testimony does not disclose whether the group was comprised of employees other than those who had spoken to him separately and who had also spoken with Kozak. 13 Nine employees subpenaed by the General Counsel were in attendance at the hearing but were called by neither party. Included were the four employees who had spoken with Kozak and Cornell. agreement covering terms and conditions of employment of unit employees. There, the employer filed an RM peti- tion thereby withdrawing recognition during the term of the collective-bargaining agreement, claiming an objective basis for doubting the union's continued majority status. In, the instant matter, Respondent engaged in no independent conduct tending to' encourage employee dissatisfaction with the Union. The record stipulation of the parties establishes that, since September 3, Respondent has refused to bargain co1= lectively with the Union, despite the Union's valid request that it do so.14 Respondent predicates its refusal upon a claimed good-faith doubt as to the continued majority sta- tus of the Union on September 3, and at all times thereaf- ter. The alleged doubt, as the facts of record establish, is grounded, claims Respondent, upon verbal statements of disenchantment and dissatisfaction with the Union ema- nating from employees comprising a numerical minority of the unit employees; and by the assertion from these em- ployee sources that a numerical majority of the unit mem- bers desired to be freed from union representation. It is upon this evidence alone that Respondent bases its alleged good-faith doubt. I find, contrary to Respondent,' this evidence of employ- ee dissatisfaction and disenchantment with the Union is insufficient to constitute objective-considerations justifying an asserted good-faith doubt. Nu-Southern Dyeing & Fin- ishing, Inc., 179 NLRB 573, 577 (1969). Thus, I find that, viewing as relevant objective considerations contributing to an asserted good-faith doubt, the expression of dissatisfac- tion and desire to withdraw from the Union conveyed di- rectly to management by four-perhaps five-employees, the requisite support for a finding favorable to Respon- dent, nonetheless, cannot be made., This is so, because the four or five employees who vocalized their disenchantment with the Union, constituted, at best, less than a third of the employees who comprised the unit. Cf. Bartenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho, and its Employer-Members, 213 NLRB 651 (1974); Cantor Bros. Inc., 203-NLRB 774, 778; Fred Tuch Buick, 199 NLRB 876, 879-880 (1972).15 But this objective evidence does not find fortification in the mere unverified assertions of disenchantment conveyed to Respondent sec- ondhand, as it were, purporting to represent the wishes of a majority of the unit. The record evidence fails to establish any basis beyond supposition and rumor from which Re- spondent could have formulated,a reasonably based con- viction that the claimed desire of these employees to be rid of the Union was factual. The employees themselves did not come forward in sufficient number. Indeed, in Octo- ber,when the RM petition was filed, and in November when Respondent informed Siegel of its continued unwill- ingness to engage in collective bargaining, 21 employees- virtually the entire unit-continued to be dues-paying members of the Union. It is to be remembered that Re- spondent adduced no evidence establishing an overt effort, 144As found, the complaint alleges a refusal to bargain running from No- vember 25 only. 15 Even if the group of three or four employees with whom Cornell spoke was comprised of employees other than the four who had entered direct pleas to Cornell for relief from union representation, the percentage of unit employees giving direct input to management would still fall short of a numerical majority. Cf National Cash Register Company v. N.L.R B., 494 F 2d 189 (C A. 8, 1974). CORNELL OF CALIFORNIA 307 known to Respondent or otherwise, of employees to- effec- tuate a withdrawal from membership. It is clear that the late November cessation in the checkoff of dues was un- dertaken by Respondent because Cornell conceived the agreement no longer to be bind ng.16 No decertification petition had been filed by employees seeking to achieve the objective which Respondent now claims they harbored; and the mere filing of an RM petition in no-way establishes that Respondent had a good-faith doubt based on objec- tive considerations. See Fred Tuch Buick, supra; Cantor Brothers, Inc., supra, James W. Whitfield d/b/a Cutten Supermarket, supra. Nor does normal employee turnover serve to cast doubt upon the Union's continued majority. James W. Whitfield d/b/a Cutten Supermarket, supra, and cases cited therein at. footnote 11. I conclude, upon the foregoing, that Respondent failed to rebut the presumption of the Union's continued majori- ty by demonstrating either that the Union had in fact lost its majority or that Respondent had sufficient objective bases for reasonably doubting the Union's majority status when on November 25 it failed to bargain collectively with the Union. Being thus convinced, I find no merit in Respondent's contention' that the burden shifted to the General Counsel to prove the Union's continued majority status. Cf. Lodges 1746 and 743, International Association of Machinists and Aerospace Workers AFL-CIO v. N.L.R.B., 416 F.2d 809, 8 12 (C.A.D.C., 1969); Stoner Rubber Compa- ny, Inc., 123 NLRB 1440 (1959)» While the foregoing findings may stand solely upon the rationale above articulated, the refusal of Respondent ever to engage in even the most rudimentary form of bargaining table discussion, as well as Cornell's out-of-hand rejection of proffered collective-bargaining terms in context of his clearly stated desire to be freed from the cost strictures of the collective-bargaining agreement, cast a pale of suspi- cion over Respondent's claimed legal justification for re- fusing to negotiate with the Union. In sum, the tactics pur- sued both prior and subsequent to November 25, 1974, are discernible only as delaying devices and blocking tactics designed to limit the opportunity for conciliatory resolu- tion of respresentation claims and bargaining demands. Thus viewed, this conduct of Respondent fortifies the find- ing, which I make, that at no relevant time did Respondent entertain a good-faith doubt as to the Union's majority status in the unit. James W. Whitfield d/b/a Cutten Super- market, supra; United Supermarkets, Inc., 214 NLRB No. 142 (1974).1$ 16 Frank Cornell testified. "[Dues deductions ended] (m)aybe the end of November when we got out of the contract We paid a little bit over the contract. I think November " (Emphasis supplied.) 17 Contrary to Respondent, no adverse inference is compelled by the fail- ure of the General Counsel to call as witnesses employees present in the hearing room who ostensibly had knowledge of relevant events In light of the findings here made , the inference must be drawn adverse to Respon- dent. Reliance upon this adverse inference is not essential to the ultimate findings and conclusions reached, however. Is Factually distinguishable and in no manner controlling herein are the cases cited by Respondent in its brief E g., Morse Electro Products Corp, 210 NLRB 1075 (1974), Inter Collegiate Press, Division Sargeant Welch Sci- entific Co, 194 NLRB 394 (1971), Kaydee Metal Products Corporation, 195 NLRB 687 (1972). Nor is the decision in National Cash Register v. N.L R.B., supra applicable through analogy. There a decertification petition was filed supported by the'necessary showing of interest. In the instant circumstances no such authoritative verification or indicia of employee disaffiliation inter- est has been manifested. It follows from a rejection of the Respondent's principal defense that the Respondent must be held to have engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act on and after November 25, 1974, by failing and refusing to honor the Union's request to bargain col- lectively with it. The stipulation of the parties establishes the essential time span of the refusal. The November 25 declaration of King that Respondent would meet for bar- gaining purposes only if the Union would agree to an elec- tion serves as a time demarcation supportive of the complaint's allegations that the unlawful, refusal to bar- gain commenced on November 25. The rejection of the Respondent's affirmative defense mandates the finding of an unfair labor practice.19 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. 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, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It has been found that Respondent has unlawfully with- drawn from the Union and has failed and refused, despite a valid demand, to bargain collectively with the Union as exclusive representative of employees in an appropriate bargaining unit. It will therefore be recommended that Re- spondent be required to recognize and, upon request, bar- gain with the Union as the exclusive representative of the employees in an appropriate bargaining unit. On the basis of the foregoing findings of fact, and upon the entire record in this case,' 1 hereby make the follow- ing: CONCLUSIONS OF LAW 1. Cornell of California, Inc., is, and at all times material herein has been, an employer within the meaning of Sec- tion 2(2), engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Northern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning, of Section 2(5) of the Act. 3. At all times material herein, the following described unit has been an appropriate unit for the purposes of col- 19 The findings of fact herein made foreclose any ground for a ruling favorable to Respondent on the asserted waiver by the Union of its right to bargain collectively by reason of an alleged commitment to resolve the issue of unit representation in a Board representation election Finding no factual basis for concluding that such a waiver was made obviates any consider- ation of the legal merits of Respondent 's contention Notably , the waiver contention was not renewed in Respondent's brief. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer, including shipping de- partment employees; excluding salesmen, designers, office clerical employees, guards and supervisors as defined in the Act. 4. At all times material herein, the Union has been, and now is, the exclusive representative of the employees in the above-described appropriate bargaining unit for the pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By withdrawing recognition from the Union and thereafter commencing on November 23, 1974, and at all subsequent times, failing and refusing to bargain with the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By virtue of the conduct aforesaid, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, there- by engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER21 Respondent Cornell of California, Inc., Oakland, Cali- fornia, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to recognize and bargain collec- tively with the Union as the exclusive representative of all of the employees in the appropriate bargaining unit, as hereinabove described, with regard to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) In any like or related manner interfering with, re- straining, or coercing their employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other protected, concerted activity for the purpose of mutual aid or protection, or to refrain from any or all such activities, as guaranteed by Section 7 of the Act, as amended, except to the extent permitted in the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which, it is found, will effectuate the policies of the Act; (a) Recognize, and upon request, bargain collectively with Northern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive 20 Errors in the transcript have been noted and corrected 21 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes representative of all employees in the appropriate unit, de- scribed above, with regard to rates of pay, hours of em- ployment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its principal place of business in Oakland, California, copies of the attached notice marked "Appen- dix."22 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by a representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writ mg, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and, upon request, bargain with Northern California Joint Board, Amal- gamated Clothing Workers of America, AFL-CIO, as the exclusive representative of our employees in the appropriate unit, described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor orga- nizations, to join or assist Northern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively with representatives of their own choosing, or to engage in other protected concerted activities for the purposes of mutual aid or protection, or to refrain from any or all such activities, as guaranteed by Sec- tion 7, except to the extent permitted by the proviso to Section 8(a)(3) of the Act, as amended. WE WILL, upon request, bargain collectively with Northern California Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as the ex- clusive representative of all our employees in the ap- propriate unit, described below, with regard to rates of pay, hours of employment, and other terms and condi- tions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All employees of the Employer, including shipping department employees; excluding salesmen, design- ers, office clerical employees, guards and supervi- sors as defined in the Act. CORNELL OF CALIFORNIA, INC. 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."