Downtown Bakery Corp.

National Labor Relations Board - Board Decisions

Nov 28, 1962

139 N.L.R.B. 1352 (N.L.R.B. 1962)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Downtown Bakery Corp . successor to Smayda 's Home Bakery,
Inc. and American Bakery and Confectionery Workers Inter-
national Union, Local 219, AFL-CIO
Bakery and Confectionery Workers International Union, Local
19 and American Bakery and Confectionery Workers Inter-
national Union, Local 219, AFL-CIO. Cases Nos. 8-CA-2502
and 8-CB-547. November 28, 1962
DECISION AND ORDER
On March 27, 1962, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondents had engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found that the Respondents had not engaged
in certain other alleged unfair labor practices and recommended that
the complaint be dismissed as to such allegations. Thereafter, the
General Counsel and the Charging Party filed exceptions to the In-
termediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner only to the extent that they are
consistent with this decision.
1. The complaint alleged that Downtown Bakery Corp., herein
referred to as Downtown, violated Section 8 (a) (1) and (5) of the
Act by refusing to recognize and bargain with American Bakery and
Confectionery Workers International Union, Local 219, AFL-CIO,
hereinafter referred to as ABC Local 219, although ABC Local 219
was the duly designated exclusive bargaining representative of Down-
town's bakery employees ; by unilaterally changing the terms and
conditions of employment of its employees; and by permitting Bakery
and Confectionery Workers International Union, Local 19, herein-
after referred to as the Respondent Union, to carry on an organizing
campaign and to solicit membership among its employees during
working hours.' In addition, the complaint further alleged that
1 while not entirely clear from the Intermediate Report, the Trial Examiner appears to
have inadvertently referred to the latter 8 ( a) (5) allegation of the complaint as an
8(a) (2) allegation.
139 NLRB No. 110.
DOWNTOWN BAKERY CORP. 1353
Respondent Downtown violated Section 8(a) (1), (2), and (3), and
that the Respondent Union violated Section 8(b) (1) (A) and 8(b) (2),
by executing and maintaining the collective-bargaining agreement of
June 27, 1961, which contained a union security clause implemented
by a dues checkoff provision.
The Trial Examiner found that Respondent Downtown violated
Section 8 (a) (1), (2), and (3) and that the Respondent Union violated
Section 8(b) (1) (A) and 8(b) (2) by executing and maintaining the
June 27, 1961, agreement. However, the Trial Examiner found that
Respondent Downtown did not violate Section 8 (a) (5) as alleged.
The Respondents filed no exceptions to the Trial Examiner's findings,
but the General Counsel and ABC Local 219 excepted to the Trial
Examiner's failure to find the 8(a) (5) violations as alleged in the
complaint. We find merit in these exceptions.
The record reveals that the Board certified American Bakery and
Confectionery Workers International Union, AFL-CIO, on April
18, 1960, as the exclusive bargaining representative of a multiemployer
unit of bakery employees of four companies including Smayda 2
On June 14, 1960, Smayda and ABC Local 219 executed a separate
collective-bargaining agreement effective from September 30, 1959,
to September 30, 1961, containing a valid union security clause. Sub-
sequently, on April 24, 1961, Downtown agreed to purchase all of
Smayda's personal property including inventory and trade names
plus certain leaseholds.
On April 28, 1961, at a Smayda creditors meeting, John Ezinski,
president of ABC Local 219, informed Carl Davis, president of Down-
town, that he (Ezinski) would like to discuss the subject of Smayda's
vacation pay with Davis. According to Ezinski, Davis replied :
". . . that this was no place to talk about it, and he will see me
[John Ezinski] at some later date." Thereafter, on May 1, 1961,
Harold Friedman, president of the Respondent Union, for the first
time told Davis : "Just remember one thing, Mr. Davis, that all of
those people in the plant are represented by me, Local 19 [Respondent
Union]." Later the same day at a meeting of bakery employees,
Carl Davis informed the former Smayda employees that shop opera-
tions would resume the next day, that all of the shop employees would
be retained, and that he would try to live up to the terms and condi-
tions of Smayda's contract with ABC Local 219.'
Shortly thereafter, Respondent Downtown told representatives of
ABC Local 219 of its desire to make certain changes in terms of em-
ployment and certain wage rates currently in existence. ABC Local
219 did not agree to the proposed changes. Thereafter Respondent
'Prior to the certification , the Respondent Union had represented the employees of
Smayda for a number of years.
9 On May 2, 1961 , Downtown commerced operating the Smayda bakery plant and some
of the facilities of the Smayda stores.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Downtown effected certain changes in working shifts, night bonus,
overtime rates, advance notice prior to termination of employment, and
holiday pay without thereafter consulting ABC Local 219. Repre-
sentatives of ABC Local 219 protested Downtown's unilateral action
and thereafter they also requested bargaining with Downtown for a
new contract,4 but Carl Davis replied that he was under "pressure"
from another union.
On May 2, 1961, when Downtown began operations, it employed
all 22 bakery employees formerly employed by Smayda including su-
pervisors and the foreman, and continued to operate with such em-
ployees up to May 14, 1961. Thereafter, while retaining all of
Smayda's former employees, it hired some additional personnels
Downtown continued to produce the same products as Smayda had
produced and some of these products continued to be sold under the
Smayda trademark. During May and June 1961, both ABC Local
219 and the Respondent Union contacted bakery employees at the
Downtown bakery for organizational purposes. As a result of those
contacts, 23 of some 26 employees signed new authorization cards on
June 3, 5, and 6, 1961, for ABC Local 219. The first authorization
cards executed by the bakery employees for the Respondent Union
are dated June 12,1961.
Finally, on or about June 23, 1961, Downtown asked the Respond-
ent Union to submit proof of its asserted majority status, and on
June 25, 1961, a representative of the Respondent Union showed Carl
Davis a "batch of slips" (authorization cards) which Davis estimated
were from 15 to 25 in number. Davis looked at the signatures but
made no attempt to verify their authenticity. On June 27 Downtown
executed a collective-bargaining agreement containing a union-security
clause and a dues checkoff provision with Respondent Union. Shortly
thereafter ABC Local 219 offered to show Downtown proof of its
majority status. Downtown then advised ABC Local 219 that it had
already executed a contract with the Respondent Union.
The Board has long held that where, as here, a purchaser continues
its predecessor's business from the same location, handling the same
products, and employing its predecessor's employees, the purchaser is
a "successor" employer with a duty to recognize and bargain in good
faith with the incumbent union.' Moreover, where, as here, the
4 It appears that ABC Local 219 did not take the position that Downtown was bound
by the contract it had entered into with Smayda. However, the parties do not raise any
contention with respect to the appropriateness of a single unit of Downtown's employees.
Moreover, it appears that ABC Local 219 did in fact represent a majority of Smayda's
employees at the time it requested Downtown to bargain
5 Downtown employed 26 employees on June 4, 1961 , and 31 employees on June 11, 1961.
0 F G. McFarland and S R. Hullinger, d/b/a McFarland & Hullinger, 131 NLRB 745;
Colony Materials , Inc., 130 NLRB 105; Southerland's Tennessee Company, Inc, et at.,
102 NLRB 1178, N.L R B. v. Albert Armato , et al, 199 F . 2d 800 (C.A. 7).
DOWNTOWN BAKERY CORP. 1355
Board's certification is more than 1 year old when the business is sold
to a "successor" employer, such certification nevertheless creates a
presumption of the certified union's continued majority status that
binds the "successor" employer,' unless a doubt as to the union's
majority is raised in good faith.' Applying the foregoing principles
to the instant case, and also considering that Local 219 did in fact
represent a majority of the employees, as mentioned above, it is clear
that Respondent Downtown had an obligation to bargain in good faith
with ABC Local 219 as of May 2, 1961, unless the totality of all the
circumstances clearly reveals that Respondent Downtown's refusal to
recognize and bargain with ABC Local 219 was in good faith.
With respect to whether or not Respondent Downtown did in fact
have a good-faith doubt, an essential prerequisite to any finding that
an employer raised the majority issue in good faith is the establish-
ment by record evidence of some reasonable grounds for believing
that the union lost its majority status since its certification.9 A care-
ful examination of this record does not reveal any such reasonable
grounds for believing that ABC Local 219 had lost its majority status
at the time it presented its request to bargain. Apart from the fact
that on May 1, 1961, Respondent Union notified Downtown by tele-
phone that it represented "all" the employees in the Smayda plant,
the record is barren of evidence showing that a reasonable basis existed
for believing that ABC Local 219 no longer represented a majority
of the employees in question on May 2, 1961. Indeed, the foregoing
claim on the part of the Respondent Union was not supported by any
showing of authorization cards or other proof of majority.10 More-
over, it would appear from the record that Respondent Downtown
recognized on May 2 that the Respondent Union did not represent
"all" of the employees or even a majority of the employees. Thus,
Respondent Downtown was well aware that its predecessor Smayda
and ABC Local 219 had a collective-bargaining agreement covering
Smayda's employees, and that this agreement contained a valid union
security clause implemented by a dues checkoff provision. Indeed,
on May 1, at the time Respondent Downtown told Smayda's employ-
ees that they would be retained, Downtown also notified them that he
would try to live up to the terms and conditions of the existing agree-
7 Southerland's Tennessee Company, Inc , supo a.
'Carter Machine and Tool Co , 133 NLRB 247 ; Celanese Corporation of America, 95
NLRB 664.
0 Celanese Corporation of America, supra
10 Moreover , it appears that the Respondent Union did not obtain any authorization
cards until June 12, over a month later Therefore, based on all the foregoing facts, we
find that the bare assertion of representative status by Respondent Union on May 1 did
not justify Downtown 's failure to recognize and bargain with the Charging Party on
May 2 , 1961, as the telephone call did not raise "a real question concerning representa-
tion" within the meaning of the doctrine in Midwest Piping & Supply Co, Inc, 63
NLRB 1060
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Finally, the record also shows that on or about May 2, Re-
spondent Downtown approached ABC Local 219 concerning certain
proposed reductions in benefits which it wished to incorporate into
the existing contract. It was not until after ABC Local 219 refused
to approve such changes that Respondent Downtown refused to recog-
nize and bargain with it, and that it thereafter unilaterally made such
changes without further discussion with the Union.
Accordingly, in view of the foregoing, it is clear, and we find, con-
trary to the Trial Examiner, that on May 2, 1961, Respondent Down-
town's refusal to recognize and bargain with ABC Local 219 as
collective-bargaining representative of its employees was not in good
faith, and was violative of Section 8 (a) (1) and (5) of the Act.
Additionally, Respondent Downtown further violated Section 8 (a) (1)
and (5) of the Act by unilaterally changing the terms and conditions
of employment of its employees."
2. We agree with the Trial Examiner's conclusions that Respond-
ent Downtown violated Section 8(a) (1), (2), and (3) of the Act by
executing and maintaining the collective-bargaining agreement of
June 27, 1961. In so finding, however, we rely on our foregoing find-
ings that Respondent Downtown had a duty to bargain with ABC
Local 219 on May 2, 1961, and that, despite that duty, Respondent
Downtown refused to recognize ABC Local 219, but instead executed
the collective-bargaining agreement of June 27,1961, containing union
security and checkoff clauses with Respondent Union. Such conduct
on Respondent Downtown's part constituted (1) interference, re-
straint, and coercion of its employees within the meaning of Section
8(a) (1) of the Act; (2) assistance and support to Respondent Union
in violation of Section 8(a) (2) ; and (3) discrimination in regard to
terms and conditions of employment to encourage membership in Re-
spondent Union and to discourage membership in ABC Local 219 in
violation of Section 8(a) (3).
Similarly, we also find that the Respondent Union, in view of Re-
spondent Downtown's duty to bargain with ABC Local 219 as the
exclusive representative of its employees, violated Section 8 (b) (1) (A)
and 8(b) (2) of the Act by executing and maintaining the collective-
bargaining agreement of June 27, 1961, containing union security and
checkoff clauses with Respondent Downtown. Clearly, Respondent
Union's actions restrained and coerced Respondent Downtown's em-
ployees and caused Respondent Downtown to discriminate against its
employees within the meaning of Section 8 (a) (3).
"As we have found that the Respondent Employer refused to recognize and/or bargain
in good faith with ABC Local 219 as of May 2, 1961, and as we shall issue an appropriate
order to remedy these violations of the Act, we do not find it necessary to pass upon
whether the Respondent Employer also violated Section 8(a) (5) and (1) by permitting the
Respondent Union to solicit for union membership among its employees on its premises
during working hours.
DOWNTOWN BAKERY CORP.
THE REMEDY
1357
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of
the Act.
As we have found merit in the General Counsel's and the Charging
Party's exceptions to the failure of the Trial Examiner to find that
Respondent Downtown refused to recognize and bargain with ABC
Local 219 at a time when the Union represented a majority of its
employees in an appropriate unit, we shall order Respondent Down-
town, upon request, to bargain collectively with the ABC Local 219.
In addition, we have found that Respondent Downtown unlaw-
fully assisted Respondent Union by executing and maintaining the
collective-bargaining agreement of June 27, 1961, containing union
security and checkoff clauses when it had a duty to bargain with ABC
Local 219. We have also found that Respondent Union violated the
Act by executing and maintaining that collective-bargaining agree-
ment. In these circumstances, to fully remedy these unfair labor
practices, we shall order the Respondents jointly and severally to
reimburse Respondent Downtown's employees for moneys paid by
them or deducted from their earnings under coercion for initiation
fees, dues, assessments, or other obligations of membership in Respond-
ent Union.12 Moreover, in accordance with our decisions in Isis
Plumbing ct Heating Co., 138 NLRB 716, and Quality Coal Cor-
poration, et al., 139 NLRB 492, we shall include an allowance for
interest thereon, such interest to be computed in the manner set forth
in Seafarers International Union, etc., 138 NLRB 1142.
Upon the basis of the foregoing and the entire record in this case,
the National Labor Relations Board hereby makes the following num-
bered paragraphs substituted and additional :
CONCLusIONs OF LAW
6. By refusing to recognize and bargain with the Union on and
after May 2, 1961, and by unilaterally changing the terms and condi-
tions of employment of its employees, Respondent Downtown has en-
gaged in and is engaging in unfair labor practices within the mean-
ing of Section8(a) (5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
"Fiore Brothers Oil Co, Inc., 137 NLRB 191; Salmirs Oil company, 139 NLRB 25,
and Quality Coal corporation, at at, 139 NLRB 492.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent Employer, Downtown Bakery Corp., Cleveland,
Ohio, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Assisting and supporting Bakery and Confectionery Workers
International Union, Local 19, or any other labor organization, and
from otherwise interfering with the representation of its employees
through a labor organization of their own choosing.
(b) Recognizing Bakery and Confectionery Workers International
Union, Local 19, or any successor thereto, as the representative of any
of its employees for dealing with it with respect to rates of pay, wages,
hours of employment, or other terms and conditions of employment,
both until it has complied with the provisions of this Order requiring
it to bargain with American Bakery and Confectionery Workers In-
ternational Union, Local 219, AFL-CIO, and, thereafter, unless and
until such labor organization shall have been certified by the Board
as the exclusive representative of Respondent's employees.
(c) Performing, enforcing, or giving effect to its collective-
bargaining agreement of June 27, 1961, with Bakery and Confec-
tionery Workers International Union, Local 19, or entering into or
enforcing any extension, renewal, modification, or supplement thereof,
or any superseding collective-bargaining agreement with said labor
organization.
(d) Refusing to bargain collectively with American Bakery and
Confectionery Workers International Union, Local 219, AFL-CIO,
as the exclusive representative of its employees in the following unit
which the Board finds appropriate for the purposes of collective
bargaining :
All bakery employees including helpers, shipping and receiving de-
partment employees, porters, maintenance employees, and work lead-
ers, but excluding sales employees, truckdrivers, office clerical em-
ployees, professional employees, guards, and supervisors as defined in
the Act.
(e) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Bakery and Con-
fectionery Workers International Union, Local 19, as the representa-
tive of any of its employees for the purpose of dealing with it with
respect t o rates of pay, wages, hours of employment, or other terms and
DOWNTOWN BAKERY CORP. 1359
conditions of employment, both until it has complied with the pro-
visions of this Order requiring it to bargain with American Bakery
and Confectionery Workers International Union, Local 219, AFL-
CIO, and, thereafter, unless and until said organization shall have
been certified as such representative by the Board.
(b) Jointly and severally with Respondent Union reimburse those
employees who became members of Respondent Union after the execu-
tion of the collective-bargaining agreement of June 27, 1961, for
moneys paid by them or deducted from their earnings for initiation
fees, dues, assessments, or other obligations of membership in Respond-
ent Union, together with interest at the rate of 6 percent per annum
in the manner set forth in the section of the Board's Decision and Or-
der entitled "The Remedy."
(c) Upon request, bargain collectively with American Bakery and
Confectionery Workers International Union, Local 219, AFL-CIO,
as the exclusive representative of the employees in the aforesaid ap-
propriate unit, and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
(d) Post at its plant in Cleveland, Ohio, copies of the attached
notices marked "Appendix A" and "Appendix B." 13 Copies of said
notices, to be furnished by the Regional Director for the Eighth Re-
gion, shall, after being signed by the respective representatives, be
posted by Respondent Employer immediately after receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by Respondent Em-
ployer to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Mail to the Regional Director for the Eighth Region copies of
the notice attached hereto as Appendix A for posting by the Respond-
ent Union. Copies of said notice, to be furnished by said Regional
Director, shall, after being duly signed by the Respondent Employer's
representative, be forthwith returned to said Regional Director for
such posting.
(f) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondent Employer has taken to comply herewith.
B. The Respondent Union Bakery and Confectionery Workers In-
ternational Union, Local 19, its officers, representatives, agents, suc-
cessors, and, assigns, shall :
1. Cease and desist from :
(a) Acting as the collective-bargaining representative of Respond-
ent Downtown's employees in the unit heretofore found appropriate
13 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Board and fully described in the attached Intermediate Report,
until Downtown has complied with the provisions of the Board's Or-
der requiring Downtown to bargain with American Bakery and Con-
fectionery Workers International Union, Local 219, AFL-CIO, and,
thereafter, unless and until it shall have been certified by the Board as
the exclusive representative of Downtown's employees.
(b) Performing, enforcing, or giving effect to its collective-
bargaining agreement of June 27,1961, with Respondent Employer or
entering into or enforcing any extension, renewal, modification, or sup-
plement thereof, or any superseding collective-bargaining agreement
with the Respondent Employer.
(c) Causing or attempting to cause Respondent Employer to dis-
criminate against employees in violation of Section 8(a) (3) of the
Act by entering into or maintaining any agreement with Respondent
Employer which requires as a condition of employment membership
in Respondent Union, or in any other like or related manner causing
or attempting to cause Respondent Employer to discriminate against
any employee in violation of Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Employer reim-
burse those employees who became members of Respondent Union
after the execution of the collective-bargaining agreement of June 27,
1961, for moneys paid by them or deducted from their earnings for
initiation fees, dues, assessments, or other obligations of membership
in Respondent Union, together with interest at the rate of 6 percent
per annum in the manner set forth in the section of the Board's
Decision and Order entitled "The Remedy."
(b) Post at its business office and meeting hall copies of the attached
notices marked "Appendix A" and "Appendix B.714 Copies of said
notices, to be furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by the respective representa-
tives, be posted by the Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to its mem-
bers are customarily posted. Reasonable steps shall be taken by the
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Mail to the Regional Director for the Eighth Region signed
copies of the notice attached hereto marked "Appendix B" for posting
by the Respondent Employer. Copies of said notice, to be furnished
by said Regional Director, shall, after being duly signed by the Re-
spondent Union's representative, be forthwith returned to said Re-
gional Director for such posting.
"See footnote 13.
DOWNTOWN BAKERY CORP. 1361
(d) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent Union has taken to comply herewith.
MEMBER RODGERS, dissenting in part :
For the reasons stated in my dissenting opinion in Isis Plumbing
ct Heating Co., 138 NLRB 716, I am convinced that the award of
interest on dues reimbursement, like interest on backpay, exceeds the
Board's remedial authority. Accordingly, I dissent from that por-
tion of the Decision and Order herein which awards such interest.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT assist or support Bakery and Confectionery Work-
ers International Union, Local 19, or any other labor organization,
or otherwise interfere with the representation of our employees
through a labor organization of their own choosing.
WE WILL NOT recognize said Local 19, or any successor thereto,
as the representative of any of our employees for dealing with us
with respect to rates of pay, wages, hours of employment, or other
terms and conditions of employment, until after we have bargained
with American Bakery and Confectionery Workers International
Union, Local 219, AFL-CIO, and will not thereafter recognize
said organization as such representative unless and until it has
been certified as the exclusive representative of our employees by
the National Labor Relations Board.
WE WILL NOT perform, enforce, or give effect to our collective-
bargaining agreement of June 27,1961, with said Local 19, or enter
into or enforce any extension, renewal, modification, or supple-
ment thereof, or any superseding collective-bargaining agreement
with said Local 19.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL withdraw and withhold all recognition from said Local
19 as the representative of any of our employees for the purpose of
dealing with us with respect to rates of pay, wages, hours of
employment, or other terms and conditions of employment.
WE WILL jointly and severally with said Local 19 reimburse
those of our employees who became members of said Local 19 after
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the execution of the aforesaid collective-bargaining agreement
of June 27, 1961, for moneys paid by them or deducted from their
earnings for initiation fees, dues, assessments, or other obligations
of membership in said Local 19.
WE WILL bargain collectively upon request with American
Bakery and Confectionery Workers International Union, Local
219, AFT,-CIO, as the exclusive collective-bargaining representa-
tive of all of our employees in the bargaining unit described below
with respect to rates of pay, hours of employment, and other con-
ditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. Said bargaining unit
is :
All bakery employees including helpers, shipping and re-
ceiving department employees, porters, maintenance em-
ployees, and work leaders, but excluding sales employees,
truckdrivers, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
All of our employees are free to become, remain, or refrain from
becoming members of the above-named or any other labor organ-
ization, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
DOWNTOWN BAKERY CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone Number, Main 1-4465, if they have any question concerning
this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF BAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION, LOCAL 19, AND TO ALL EMPLOYEES OF
DOWNTOWN BAKERY CORP.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
DOWNTOWN BAKERY CORP. 1363
WE WILL NOT act as the collective-bargaining representative of
the employees of Downtown Bakery Corp. in the unit found ap-
propriate by the Board, until Downtown has complied with the
provisions of the Board's Order requiring Downtown to bargain
with American Bakery and Confectionery Workers International
Union, Local 219, AFL-CIO, and, thereafter, unless and until
we have been certified by the Board as the exclusive representa-
tive of such employees.
WE WILL NOT perform, enforce, or give effect to our collective-
bargaining agreement of June 27, 1961, with Downtown Bakery
Corp., or enter into or enforce any extension, renewal, modifica-
tion, or supplement thereof or any superseding collective-
bargaining agreement with Downtown Bakery Corp.
WE WILL NOT cause or attempt to cause Downtown Bakery
Corp. to discriminate against employees in violation of Section
8 (a) (3) of the Act by entering into or maintaining any agreement
with Downtown Bakery Corp. which requires as a condition of
employment membership in our organization, or in any other like
or related manner cause or attempt to cause Downtown Bakery
Corp. to discriminate against any employee in violation of Section
8(a) (3) of the Act.
WE WILL jointly and severally with Downtown Bakery Corp.
reimburse those of its employees who became members of our
organization after the execution of the aforesaid collective-
bargaining agreement of June 27, 1961, for moneys paid by them
or deducted from their earnings for initiation fees, dues, assess-
ments, or other obligations of membership in our organization.
BAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION, LOCAL 19,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date hereof and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone Number, Main 1-4456, if they have any question concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On July 6, 1961, American Bakery and Confectionery Workers International
Union, Local 219, AFL-CIO (hereinafter referred to as Charging Union or Local
672010-63-vol. 139-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
219) filed charges in Case No. 8-CA-2502 against Downtown Bakery Corp. (herein
referred to as Respondent Employer or Downtown). On the same date it also filed
charges in Case No. 8-CB-547 against Bakery and Confectionery Workers Interna-
tional Union, Local 19 (hereinafter referred to as Local 19 or Respondent Union)
The above-mentioned cases having been consolidated, a consolidated complaint I
based on said charges was issued on November 24, 1961, charging that Respondent
Employer violated Section 8(a)(1), (2), (3), and (5) of the National Labor Rela-
tions Act, as amended, and that Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act Respondents in their answers, as amended during the hearing,
denied all of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on January 9, 10, 11, 12, 15, 16, 17, 18, 19,
and 22, 1962, at Cleveland, Ohio, before Trial Examiner Stanley Gilbert. All parties
were represented by counsel. At the close of the hearing the Trial Examiner re-
quested counsel to state their contentions as to what issues were raised in the pro-
ceeding. General Counsel ably outlined the issues and cited cases upon which he
relied Other counsel indicated that they had nothing further to add to General Coun-
sel's outline of the issues Oral argument in all other respects was waived. General
Counsel and Respondents filed briefs within the time designated therefor.
Upon the entire record in this proceeding and from my observation of the wit-
nesses I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
Downtown Bakery Corp, an Ohio corporation with offices and places of business
in Cleveland, Ohio, is engaged in the baking and retail sale of bakery products. It
was stipulated that during approximately the first 7 months of its operations (May 2
through November 30, 1962), it made gross retail sales of $276,351.10 and that it
is expected it will, during the first 12 months of its operations, receive directly or
indirectly from sources outside the State of Ohio materials and good valued in excess
of $50,000.
Davis Bakery, Inc, an Ohio corporation with offices and places of business in
Cleveland, Ohio, is engaged in the baking and retail sale of bakery products. It
was stipulated that it makes gross sales annually in excess of $500,000 and annually
receives directly or indirectly from sources outside the State of Ohio goods and mate-
rials of a value in excess of $50,000
Lakewood Bakery, Inc , an Ohio corporation with offices and places of business
in Cleveland, Ohio, is engaged in the retail sale of bakery products. It was stipulated
that its annual gross retail sales are in excess of $270,000 and that it annually receives
directly or indirectly from sources outside the State of Ohio goods and materials of
a value in excess of $20.000
It was further stipulated that the three above-mentioned corporations "constitute
a single employer for the Board's [National Labor Relations Board] jurisdictional
purposes " It appears that there is common ownership and substantial integration
of the operations and management of the three corporations.
I find that Respondent Employer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the assertion of jurisdiction is warranted
II. THE LABOR ORGANIZATION INVOLVED
Both Local 219 and Local 19 are, as admitted by the parties in this proceeding,
labor organizations within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A Background and summary of events
Downtown was incorporated on April 21, 1961, apparently for the purpose of
purchasing the physical assets and store leases of Smayda's Home Bakery Company
(hereinafter referred to as Smayda), an Ohio corporation which was engaged in the
business of baking and the retail sale of bakery products in Cleveland, Ohio. On or
about April 24, 1961, Downtown entered into a contract with Smayda for said pur-
1 The complaint was amended during the course of the hearing, but it does not appear
necessary to set forth herein in what respects
DOWNTOWN BAKERY CORP. 1365
chase, in which it was specified that it did not assume any of the obligations of
Smayda. It also provided for Downtown's right to use Smayda's trade name for
a limited period. The contract provided for Smayda to deposit in escrow the various
documents which were called for in the agreement and Downtown to deposit the
funds called for therein. In the event the deposits were made, the transaction was
to be closed on May 1, 1961, or at a later time if the parties mutually agreed to an
extension.
On April 18, 1960 (a little over a year prior to the sequence of events involved
in this proceeding), Local 219 was certified as the exclusive bargaining representative
of the shop employees of Smayda in a multiemployer unit in Case No. 8-RC-3558
(not published in NLRB volumes), following an election. There were 368 employees
eligible to vote in the multiplant unit of which 30 to 35 were employees of Smayda.
There were 272 votes for Local 219, 93 for Local 19, and 1 for neither union. After
the certification, Smayda and Local 219 executed and maintained a contract which
contained a union security clause and dues checkoff provision and provided that it
was to be effective until September 30, 1961. Prior to the certification of Local 219,
Local 19 had represented the employees of Smayda in a single-employer unit for a
considerable period of time.
Since Smayda was insolvent, a meeting of its creditors was called on April 28,
1961, apparently in anticipation of, and to facilitate, the consummation of the sale
and purchase provided for in the aforesaid contract between Smayda and Downtown.
One or more representatives of Local 219 (the Charging Union) and officers of
Downtown were present at the meeting and there is some testimony of a brief con-
versation between them which does not appear to be of any materiality herein. Al-
though it is alleged in the complaint that the Charging Union requested Respondent
Employer to bargain with it commencing with the date of this meeting, it does not
appear that such a request could have effectively been made any earlier than May 1,
1960, the earliest date upon which it appears that Downtown could be said to be
the employer of the employees for whom Local 219 sought to bargain with Down-
town and the operator of the plant in which the employees would be working. It
appears that Smayda continued its plant operations at least through April 28, and
May 1 was the first date thereafter that representatives of the Charging Union
(Local 219) and an officer of Downtown had any contact. In its brief General
Counsel contends the period during which Local 219 requested bargaining com-
menced on or about May 2
On May 1 Downtown called a meeting of the former Smayda shop employees at
which Carl Davis, president of Downtown, addressed them. Carl Davis and his
brothers, Julius and Ben, are officers, directors, and the sole stockholders of Down-
town. Representatives of Local 219, Mike and John Ezinski, were present. Carl
Davis stated that all of the shop employees would be retained and that the shop
would resume operations the next day (which it did) He also made some reference
to the terms and conditions under which the employees would work, but there is
a conflict m the testimony as to whether he said Downtown would honor Smayda's
contract with Local 219 or that Downtown would try to live up to its terms and con-
ditions. I am of the opinion that the latter statement was the one he made, based
on my observation of the witnesses and the actions of the parties immediately there-
after The representatives of Local 219 sought immediately to have him bargain with
them for a new contract apparently on a single-employer basis. It is clear that it
was not asserted that he was bound by the Smayda contract 2 Despite the assurance
Carl Davis gave, Downtown almost immediately effected changes in the terms and
conditions of employment without consulting Local 219. Representatives of Local
219 attempted unsuccessfully to discuss these changes with Respondent Employer.
When requested to bargain with them for a new contract, Carl Davis replied that
he was under "pressure" from another union, ostensibly the Respondent Union. He
had received a call on May 1 from the Respondent Union seeking to have Downtown
enter into a contract with it. Although Local 56 of the same International Union
as that with which Respondent Union is affiliated also contacted Downtown seeking a
contract, it does not appear that Respondent Employer considered that its claim of
representation had any foundation.
During the ensuing period representatives of both Local 219 and Local 19 were,
to an approximately equal degree, frequently in the Downtown plant talking to em-
2 Although John Ezinski, representative of Local 219, testified that he thought there
was a continuity of the Smayda contract based on the "commitment" of Carl Davis.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and seeking to talk to the Davises.3 The record does not disclose any evidence
of antiunion bias on the part of the Respondent or of any incident from which it
may be inferred that it did not maintain a neutral attitude with respect to the two
Unions, at least until June 27. During this period (from May 1 to June 27) both
Unions continuously urged Respondent Employer to recognize them and to enter
into a contract Not until on or about June 25 was either of them asked to give
proof of majority status, but neither did they offer to do so. On June 2.9 a repre-
sentative of Local 19 showed Carl Davis a batch of slips (authorization cards) which
the latter testified to have been from 15 to 25 in number. He looked at the signatures
but made no attempt to verify their authenticity. It appears that during the first few
weeks in June both Unions had managed to obtain the signatures of a majority of
the shop employees on checkoff authorization cards. On June 27 Downtown
executed a contract with Local 19, which collective-bargaining agreement contained
a union security clause and a dues checkoff provision. It was not until after this
agreement was executed that representatives of Local 219 showed its authorization
cards to Downtown.
B. The appropriate unit
It is alleged in paragraph 8 of the complaint as follows:
8. The following employees of the Respondent Employer constitute a unit
appropriate for the purposes of collective baragining within the meaning of
of Section 9 (b) of the Act:
All bakery employees including helpers, shipping and receiving depart-
ment employees, porters, maintenance employees, and work leaders, but
excluding sales employees, truckdrivers, office clerical employees, profes-
sional employees, guards, and supervisors as defined in the Act.
It does not appear that at any time during the period involved herein did Respond-
ent Employer question the appropriateness of the unit above described and it does
not appear that it is any different in substance from the unit covered by the contract
executed on June 27, 1961, between Downtown and Local 19. Both Unions were
contending to represent the employees in the unit described. Therefore, I find the
above-mentioned allegation of the appropriate unit to have been sustained.
C. The issues
The material issues raised in this proceeding are as follows:
1. Whether Respondent Employer violated Section 8(a)(5) and (1) of the Act
by refusing and continuing to refuse to recognize and bargain collectively with the
Charging Union as the exclusive collective-bargaining agent of Respondent Employer's
employees in the above-described unit.
2. Whether it also violated said section by discussing terms and conditions of
employment with its employees after May 2 and by unilaterally effecting changes in
terms and conditions of employment without consulting the Charging Union.
3. Whether Respondent Employer violated Section 8(a)(2) and (1) of the Act
by permitting Respondent Union to solicit membership on company time and property,
as alleged in paragraph 14(b) of the complaint.
4. Whether Respondent Employer violated Section 8(a)(1), (2), and (3) and
Respondent Union violated Section 8(b)(1) (A) and (2) by executing and main-
taining the collective-bargaining agreement of June 27, 1961, which agreement con-
tains a union-security clause implemented by a dues checkoff provision.
1. The alleged refusal to bargain
Downtown continued baking operations at the plant operated by Smayda and
initially employed all of the Smayda shop personnel. Considerable testimony was
elicited as to changes effected by Downtown in the plant and in its operations,
apparently with respect to whether or not Downtown was a "successor" or Smayda.
However, the resolution of this question does not appear to be material .4 General
8 Also, but to a much lesser extent, were representatives of Local 5G.
* Without passing upon the question, I doubt that the record demonstrates that Down-
town could be appropriately designated as the "successor" to Smayda, as it was described
In the complaint.
DOWNTOWN BAKERY CORP. 1367
Counsel does not contend, nor does it appear that it was asserted by representatives
of the Charging Union, that Downtown assumed the obligation of the collective-
bargaining agreement which Smayda had entered into and maintained with the Charg-
ing Union (Local 219). General Counsel contends that by virtue of Downtown's
continuation of the operation of the Smayda plant, of the prior certification of Local
219 with respect to the multiemployer unit (of which Smayda employees were a small
segment) and of the Smayda-Local 219 contract which contained a union-security
clause, there was a presumption on or about May 2 (when Local 219 commenced
requesting recognition and bargaining) that it represented a majority of the shop
employees of Downtown. However, in view of the circumstances in this case it does
not appear necessary to pass upon the validity of this contention.5 I am of the
opinion that Respondent Employer had a good-faith doubt of the majority status of
Local 219 during the entire period the latter was requesting recognition.
On May 1 Respondent Employer received a call from Local 19 asserting the
right to represent the Downtown shop employees.6 It is clear that Respondent Em-
ployer refused to bargain with Local 219 and there is no conflict in the testimony as
to the reason which Respondent Employer gave for its refusal. It was stated that
another Union (Local 19) was exerting "pressure." This, to my mind, was, albeit
inartistic, an attempt by Respondent Employer to indicate that it did not know which
Union represented a majority of its shop employees. Both Unions, during the
period from May 1 to June 27, repeatedly urged Downtown to recognize and enter
a bargaining agreement with them, and their representatives were frequently in the
plant contacting employees. The Davises were not sophisticated in the niceties of
labor law and the lawyer whom they consulted at first admittedly was almost
equally unfamiliar with the subject. It is clear from the actions of Respondent
Employer that it was not attempting to avoid bargaining with a union, as such,
for, without any show of dilatoriness, it signed with two other unions which repre-
sented units of employees for which no rival labor organizations were contending.
There is no indication that Respondent Employer preferred either Local 19 or Local
219. The record demonstrates that up to on or about June 25 Respondent Employer
was as reluctant to bargain with one as with the other. I am convinced that its
reluctance was predicated on its uncertainty as to which of the two truly represented
a majority of the employees. This is consistent with the alacrity with which it signed
with Local 19 after it was persuaded that Local 19 represented a majority of the
employees and could effectively call a strike as threatened. I am of the opinion that
Downtown's delay in recognizing either Union was not for the purpose of undermin-
ing one or the other but a result of its perplexity as to how to resolve the dilemma
in which it found itself.
General Counsel cites various actions of Respondent Employer as indicative of the
fact that it did not have a "good faith doubt" of Local 219's majority status, such as its
payment of an installment of health and welfare benefits to Local 219. Even were it
to be assumed that such a payment would be persuasive of the inference sought, I am
of the opinion that in this case it can be of no moment, since I credit the testimony
that it was done inadvertently upon the assumption that it was a payment due under
a contract with another union representing a unit in one of the related companies.
I find nothing in the record which persuades me that Respondent Employer did
not have a "good faith doubt" of Local 219's majority status on May 2 and
thereafter.
2. The changes in terms and conditions of employment
It is clear that almost immediately after starting operations, Downtown did discuss
with employees changes in the terms and conditions of their employment and effected
changes without consulting Local 219. Inasmuch as Downtown had not assumed
the obligations of the Smayda contract and had a good-faith doubt as to Local 219's
majority status, it does not appear that such conduct constituted a violation of Sec-
tion 8 (a) (5) and (1) of the Act.
5 Although I do not pass upon this contention, I have some doubts that the presumption
can be said to exist.
0 Before the certification of Local 219 for the multiemployer unit (a little more than a
year prior to the events involved herein) Local 19 had represented Smayda shop em-
ployees for a considerable number of years
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Permitting Local 19 to solicit members on company time and property
There is nothing in the record which persuades me that Respondent Employer at-
tempted to or did discriminate in favor of or against either of the Unions in their
solicitation of the support of the Downtown employees on company time and property.
Under the circumstances and in view of the findings hereinabove , I do not find that
Respondent Employer violated the Act by the conduct alleged in paragraph 14(b) of
the complaint.
4. The Downtown-Local 19 agreement
I am of the opinion that Downtown executed a collective -bargaining agreement with
Local 19 on June 27, 1961 , because it was persuaded that Local 19 did represent a
majority of the shop employees and would effectively call a strike if Downtown did
not execute the agreement . Representatives of Local 219 did not show the authoriza-
tion cards it had obtained to Downtown until after the agreement had been executed.
However, all during the period from May 2 to June 27 Downtown was well aware
of the continuing claim of representation by Local 219 and of its persistent efforts
to obtain recognition and negotiate a contract . Throughout this period Local 219
frequently sought meetings with officers or representatives of Downtown in further-
ance of its efforts. As a matter of fact, Downtown was aware of the fact, at the
very time it executed the agreement , that Local 219 was again seeking another meet-
ing to discuss its contentions . Shortly after the agreement was executed the meeting
requested was held at which Local 219 was advised of the execution of the agree-
ment and in turn it exhibited its authorization cards.
I am of the opinion that the Midwest Piping doctrine of the 3oard 7 is applicable
in the circumstances of this case. The Board has stated that in circumstances where
there are active continuing claims of rival unions "the cases have frequently pointed
out" that an employer cannot "assume to judge for itself upon a showing of authoriza-
tion cards which of the contending unions was the statutory representative of the em-
ployees." Novak Logging Company, 119 NLRB 1573, 1575. The very danger of
its doing so is illustrated in this proceeding in which both of the rival unions obtained
authorization cards from a majority of the unit at about the same time. Under si.ch
circumstances the question concerning representation should be resolved by the Board
and not by a race which is won by the first union to show its authorization cards to the
employer
The Downtown -Local 19 agreement contains a union security clause implemented
by a dues checkoff provision It appears that Respondent Employer did deduct some
moneys from employees' earnings in accordance with the checkoff provision.
I am of the opinion that Respondent Employer viclated Section 8(a)(1), (2), and
(3) of the Act by executing the agreement with Local 19 when a real question con-
cerning representation existed, and by maintaining said contract.
I am convinced it is appropriate to infer that Respondent Union was aware of the
continuing claim of Local 219 during the period from May 2 to June 27 and that, at
the time it insisted that Downtown execute the contract on June 27, it had no valid
reason to believe that Local 219 had abandoned its claim. Under such circumstances,
in obtaining recognition from Downtown , its execution of the contract and mainte-
nance thereof ( which contract contained a union-security clause and dues checkoff
provision) Respondent Union violated Section 8(b) (1) (A) and (2) of the Act. As
observed by the Trial Examiner in Local 404, International Brotherhood of Teamsters,
etc. (Brown Equipment and Manufacturing Co ), 100 NLRB 801, 811, "a union has
no more right than an employer [ when there is a real question concerning representa-
tion] to attempt to arrogate to itself a responsibility that Congress had delegated to the
Board." 8 In effect, the Midwest Piping doctrine was extended by the Board to cover
such conduct by finding that it constituted a violation of Section 8(b) (1) (A) and (2).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , set forth in section III, above, which have been
found to be violative of the Act, occurring in connection with the operations of the
7 The doctrine derived from Midwest Piping & Supply Co , Inc , 63 NLRB 1060
8 Cf Brittany Dyeing and Printing Corp , 126 NLRB 785 , In which the Board refused
to consider the question of whether Section 8 ( b) (1) (A) was violated in the absence of
evidence of Respondent Union's knowledge of the claim of a rival union.
DOWNTOWN BAKERY CORP. 1369
Respondent Employer , described in section 1, above , have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that Respondent Union insisted that Respondent Employer recognize
it and enter into a collective-bargaining agreement and that Respondent Employer
did so during the pendency of a question concerning the representation of the em-
ployees covered thereby. By such conduct Respondents have interfered with, re-
strained , and coerced said employees in the exercise of their right freely to choose
their own bargaining representative and Respondent Employer has accorded unlaw-
ful assistance and support to Respondent Union. In order to dissipate the effect of
the Respondents' unfair labor practices, I shall recommend that Respondent Em-
ployer be ordered to withdraw and withhold all recognition from Respondent Union
and that Respondents cease giving effect to the aforementioned agreement, or to any
renewal or extension thereof, until such time as Respondent Union shall have been
certified by the Board as the exclusive representative of the employees in question
By maintaining said agreement which contains a union security clause imple-
mented by a dues checkoff provision, Respondents have coerced employees who had
not become members of Respondent Union prior to the execution of the agreement
to join said Union and assume the monetary obligation of members. Therefore, in
order to expunge the coercive effect of said agreement , I shall further recommend
that Respondents be ordered, jointly and severally, to reimburse those employees
who become members of Respondent Union after the execution of the aforesaid
agreement for moneys paid by them or deducted from their earnings for initiation
fees, dues, assessments , or other obligations of membership in Respondent Union.
Nothing herein recommended shall be construed to require that Respondent Em-
ployer vary any existing term or condition of employment of its employees other
than the requirement of membership in Respondent Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Employer is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2 Respondent Union and Charging Union are labor organizations within the
meaning of Section 2 ( 5) of the Act.
3. All of Respondent Employer's bakery employees including helpers, shipping
and receiving department employees , porters, maintenance employees , and work
leaders, but excluding sales employees , truckdrivers , office clerical employees, pro-
fessional employees , guards, and supervisors as defined in the Act , constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. By recognizing Respondent Union and entering into and maintaining the
collective-bargaining agreement with it executed on or about June 27, 1961, Re-
spondent Employer has violated Section 8(a) (1), (2), and (3) of the Act.
5. By entering into and maintaining said agreement Respondent Union has vio-
lated Section 8 (b) (1) (A) and (2) of the Act
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent Employer has not violated Section 8(a)(5) of the Act as alleged
in the complaint or Section 8(a) (2) of the Act by the conduct alleged in paragraph
14(o) of the complaint.
[Recommendations omitted from publication.]