Federal Compress & Warehouse Co.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 664 (N.L.R.B. 1967)

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