C. M. Gifford & Sons

National Labor Relations Board - Board DecisionsFeb 16, 1959

122 N.L.R.B. 1428 (N.L.R.B. 1959)

1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Watch Co.; Hamilton Watch Co.; Polaroid Corporation; Philco Corporation; and West Bend Aluminum Co., to name but a few, we find contrary to the Employer, that its operations affect commerce within the meaning of the Act. As the total gross volume of business of these corporations exceeds the Board's $500,000 minimal require- ment for assertion of jurisdiction over retail enterprises," we find that it will effectuate the policies of the Act to assert jurisdiction over the Employer, and accordingly; we deny the Employer's motion to dismiss. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. In accordance with the stipulation of the parties; we find that the following employees employed at the Employer's store, located at 226 East Flagler Street, Miami, Florida, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All employees, excluding store manager, credit manager, temporary casual peak season employees, guards, watchmen, professional employees, and supervisors' as defined in the Act. [Text of Direction of Election omitted from publication.] Carolina Supplies and Cement Co., 122 NLRB 88. C. M. Gifford & Sons and General Truck Drivers, Warehouse- men and Helpers Union , Local 542. Case No. 21-CA-2889. February 16, 1959 DECISION AND ORDER On May 12, 1958, ^ Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report; attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs.' The General Counsel excepted to the Trial Examiner's inadvertent failure to provide in his Recommended Order for reinstatement of the discharged employees . As we, like the Trial Examiner , find that Price , Rosas, Gomez, and Dobbs were discriminatorily dis- charged and are entitled to reinstatement , we shall correct the Order accordingly. 122 NLRI3 No. 172. C. M. GIFFORD & SONS 1429 On September 10, 1958, on the basis of its decision in Ra-Rich . Manufacturing Corp.,3 the Board issued an Order sustaining certain exceptions made by the Respondent and making available to the Respondent such pretrial written statements of the General Counsel's witnesses as the Respondent might designate. On September 30, 1958, on motion of the Respondent, the Board issued an order re- opening record and remanding proceeding for the purpose of con- ducting a further hearing. On November 18, 1958, Trial Examiner Royster issued his Supple- mental Intermediate Report, a copy of which is attached hereto, in which he found no reason to modify or change the findings, con- clusions, and recommendations in his Intermediate Report. There- after, the Respondent filed exceptions to the Supplemental Inter- mediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, Supplemental Intermediate Report, the excep- tions and briefs, and the entire record in the case,' and hereby adopts the findings,4 conclusions, and recommendations of the Trial Examiner, with the following addition : The complaint alleges, and the Respondent admits, that in a con- versation several days prior to the discharges, Forelady Haggerty questioned employees Rosas, Dobbs, Gomez, and Price as to whether they had signed union cards. The Trial Examiner, while fully re- lating the incident, made no express unfair labor practice finding in regard to such interrogation. In view of the other unfair labor practices committed by the Respondent, including the subsequent discriminatory discharge of these same four employees, and on the basis of the entire record, we find that Forelady Haggerty, a super- 2121 NLRB 700. Although some of the testimony in the record appears incoherent because of the difficulty of certain witnesses with the English language , we have been able to under- stand the essence of the testimony , and find that the record taken as a whole discloses with sufficient clarity the violations found herein. + In making our findings , we do not find it necessary to, nor do we , rely on the testimony of Mrs. Aguayo. The Intermediate Report inaccurately states that Plant Superintendent Smedley told employee Salazar that if he did not sign a union card , his wages might be raised from $1.10 to $1.25 an hour . There is no evidence in the record that the $1.25 figure was mentioned by Smedley in his conversation with Salazar . The record does indicate, how- ever, and the Trial Examiner correctly found , that the possibility of such a wage increase was conveyed by Smedley to employee Dominquez in a separate conversation. 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor, interrogated employees in a manner constituting interference, restraint, and coercion in violation of Section 8(a) (1) of the Act.' ORDER Upon the entire record and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, C. M. Gifford & Sons, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the Union or in any other labor organization of its employees by means of discharge or layoff or any other discriminatory treatment affecting hire or tenure of employ- ment or any term or condition of employment. (b) Interrogating or questioning employees concerning their union membership or activities in a manner constituting interference, re- straint, or coercion in violation of Section 8(a) (1) of the Act. (c) By means of threats to close the plant, or by intimations that employment opportunities of union supporters would be lessened, or by holding out a prospect of increased earnings to those who would oppose the Union, or by unlawfully interrogating employees concern- ing their union membership and activities, or in any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist General Truck Drivers, Warehousemen and Helpers Union, Local 542, or any other labor organization, to bargain collectively through representa- tives of their own choosing and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, 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 Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Mercedes Gomez, Herlinda Rosas, Josephine Dobbs, and Manuela Price immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the Board or its agents for examination and copying all payroll records, social security records, 5 Koller Craft Plast ic Products , Inc., 114 NLRB 990; see also Mid-South Manufacturing Company. Inc., 120 NLRB 230. C. M. GIFFORD & SONS 1431 attendance records, personnel records, or any other records necessary to or convenient for a computation of the amount of back pay due. (c) Post at its plant in San Diego, California, copies of the notice attached hereto marked "Appendix." 6 Copies of such notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by Respondent, be posted by it imme- diately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-first Region in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. 0 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" in the caption , the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX 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 discourage membership in General Truck Drivers, Warehousemen and Helpers Union, Local. 542, or in any other labor organization of our employees, by means of dis- charges or refusals to reinstate, or by discriminating in any manner with regard to hire, tenure of employment, or any term or condition of employment. WE WILL offer to Mercedes Gomez, Herlinda Rosas, Josephine Dobbs, and Manuela Price immediate and full reinstatement each to her former or substantially equivalent position, and make each whole for any loss of earnings suffered as a result of the discrimination against her. WE WILL NOT, by means of threats to close the plant, or to discriminate against union supporters, or by promise of benefits to nonsupporters of the Union, or by unlawfully interrogating employees concerning their union membership and activities, or in any other manner, interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-organization, to join or assist General Truck Drivers, Warehousemen and Helpers Union, Local 542, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective 1432 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD bargaining or other mutual aid or protection, or to refrain from any or all such activities, 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 Act. C. M. GIFFORD & SoNS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by General Truck Drivers, Warehousemen and Helpers Union, Local 542, herein called the Union, the General Counsel of the National Labor Relations Board issued his complaint dated March 13, 1958, against C. M. Gifford & Sons, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein the Act. In respect to unfair labor practices the complaint alleges in substance that the Respondent, by its officers, agents, and employees, in November 1957 threatened employees with loss of employment if they joined the Union; threatened to close the plant rather than deal with the Union; and on the 18th of that month dis- charged four employees, Mercedes Gomez, Herlinda Rosas, Josephine Dobbs, and Manuela Price, because each had engaged in protected collective activity. Respondent's answer admits the jurisdictional allegations of the complaint but denies the commission of unfair labor practices. Pursuant to notice a hearing was held before the duly designated Trial Examiner in San Diego, California, on April 15 and 16, 1958. All parties were represented and were afforded opportunity to examine and cross-examine witnesses and to in- troduce evidence pertinent to the issues. Upon the entire record in the case, and from my observation of the witnesses, I make the, following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT; THE ORGANIZATION INVOLVED The complaint alleges, Respondent's answer admits, and I find that the Respond- ent is a California corporation engaged in San Diego, California, in processing and canning olives. During the 12-month period immediately preceding March 13, 1958, the . Respondent shipped products valued in excess of $50,000 directly to points located outside the State of California. The Respondent is and at all times material has been engaged in commerce within the meaning of Section 2(6) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES In early November 1957 a representative of the Union began passing out litera- ture to Respondent's employees in an attempt to interest them in self-organization. This activity was noted immediately by Plant Superintendent Robert Smedley. John Salazar, one of Respondent's employees, testified that Smedley came to him on the day when the Union's leaflets first appeared and told Salazar that it would cost him too much money to join the Union. Either on that occasion or on two subsequent occasions but in any event before November 25, 1957, Smedley told Salazar, the latter testified, that if he did not sign a union card there was a possi- bility that his wage would be raised from $1.10 to $1.25 an hour. Smedley said that the Respondent could not afford to pay the Union's wage demands and that C. M. GIFFORD & SONS 1433 if the Union succeeded in organizing the plant there would be only 8 hours of work a day. Without the Union 's interference Salazar would be enabled to con- tinue working as much as 14 hours a day and thus make more money. Within this same period of time, according to another employee, Enrique Domin- guez, Smedley told him that it would be a mistake to join the Union , but that if the employees resisted the Union 's campaign wages might be raised from $1.10 to $1.25 an hour. Smedley testified that he had no recollection of telling Salazar anything about wages, but did remember that Salazar asked him " if we were going to go Union." Smedley answered , he testified , that he did not know; an election would answer that. Smedley testified further that he had no recollection of speaking to Domin- guez about the Union. Mercedes Gomez, Herlinda Rosas, and Josephine Dobbs testified that shortly after the appearance of the Union organizer . Smedley told them in a group that they would be foolish to sign any sort of union authorization paper because, read- ing English as imperfectly as they did , they might find themselves obligated to pay a large sum of money; that the Union might be all right in a larger plant, but not in the Respondent 's operation ; and that if the Union was successful he either might or would close the plant.' Gomez, Rosas, and Dobbs testified without contradiction that sometime in mid- November Caroline A . Haggerty , a forelady and a supervisor within the meaning of the Act , asked a group consisting of Gomez, Rosas , Dobbs, and Manuela Price how many of them had signed cards for the Union . Rosas answered that all had. Maria Aguayo testified that about mid-November she overheard an employee, identified only as Frances , ask Haggerty something about the Union . Haggerty answered , according to Aguayo 's testimony , that all she knew was that the ones who had their names on a list had cut their own throats . As she spoke , Haggerty drew her index finger across her throat. Haggerty denied making any such statement and Frances Hayes, the only Frances on Respondent 's payroll during that period, denied that she had ever heard Hag- gerty make such a remark. On November 18 at the close of the day Gomez , Rosas, Dobbs, and Manuela Price were told that there was no more work for them . All had been employed in some kind of sorting operation on green olives and the four of them constituted the entire crew in that aspect of the operation . They had at the time they were let go completed work on all of the green olives in the plant and no additional shipments were immediately expected . Gomez had worked for the Respondent in 1956 on ripe olives or black fruit. She returned to work in September 1957 at the invitation of Otis Ray, Respondent 's general manager. Rosas, Dobbs, and Price were first employed by the Respondent in September or October 1957. Dur- ing the approximately 2 months that these four worked for the Respondent in the fall of 1957 each was on occasion , when no green fruit was at hand , put to work on a sorting or grading operation involving the black fruit. The General Counsel contends that Gomez , Rosas, Dobbs, and Price were dis- charged on November 18 because of Respondent 's belief that they were supporters of the Union . He argues that had not this belief been entertained Smedley would have used them in other operations and not have hired two new workers the morn- ing of that day. Smedley testified that he did not consider any of those laid off, except Gomez , to be qualified to work on anything but the green fruit and that Gomez, although otherwise a desirable employee, had demonstrated in her previous employment an inability to get along with other employees. Each of the witnesses for the General Counsel speaks English imperfectly and had difficulty understanding questions put to him by counsel . Because of this circumstance I have examined the testimony of each carefully to satisfy myself that the testimony given did represent a true and accurate recollection of the wit- ness . I do not believe that any of them is sufficiently articulate or imaginative in English to express the remarks which they attributed to Smedley and Haggerty unless they actually heard them . I am convinced and find that Gomez, Rosas, Dobbs, Salazar, and Dominguez were spoken to by Smedley as they testified. Of course the testimony of the first three as to Haggerty 's questioning is undenied and is credited. The testimony of Aguayo that Haggerty said in substance that those who signed up with the Union were jeopardizing their jobs is believed . I do not think that Aguayo invented the remark or misinterpreted the gesture . The Re- spondent was opposed to the Union , Haggerty had inquired to learn who had ' Dobbs did not testify that she heard anything from Smedley about closing the plant. 1434 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD joined, and Smedley had threatened to close the plant.2 Here from Haggerty was no more than an extension of Smedley's threat that union supporters would have reason to regret their action. It is apparent that Haggerty was not speaking to Aguayo and perhaps was unaware that the latter could hear what was said. It is wholly possible that Haggerty having no particular reason to remember it may have just forgotten what she said. I am convinced, however, that Aguayo is mistaken in her identification of the Frances whose question prompted Haggerty to speak. I believe that Frances Hayes would have remembered that Haggerty answered any question of hers in that fashion and I credit her testimony that she heard nothing from Haggerty about the Union and asked no questions in that connection. Respondent's operations have been unprofitable at times and the prospect of paying higher wages and perhaps penalty overtime, if the Union organized the employees, may have been a frightening one. Respondent's concern in the matter is demonstrated by Haggerty's questioning of employees and by Smedley's warnings, threats, and promises. I am sure that Haggerty did not question employees idly or merely to satisfy a private curiosity. She did so because the Respondent desired to know the progress of the Union's attempt to gain members. What she learned she surely conveyed to Smedley. I find that on November 18 Smedley knew through Haggerty that the four women sorting the green fruit had signed cards for the Union. Smedley testified that on the morning of November 18 four employees were absent because of illness, among them Josephine Dobbs. This left a shortage of one worker on the green fruit line and, presumably a shortage in three other posi- tions elsewhere in the plant. He hired two new workers that morning; women who were inexperienced in the plant's operation. These two were placed at work in the plant and the green fruit line seems to have been run by Gomez, Rosas, and Price. At the close of the day Gomez, Rosas, Price, and Dobbs were laid off. The record does not explain how word of this reached Dobbs. All were told by Smedley that they would be recalled when needed. Gomez telephoned him twice within the next few days to ask for work. Smedley told her that no more green fruit had arrived and none had. On November 25, two additional inexperienced workers were hired, allegedly to fill in for workers who were absent because of illness. No attempt was made by Smedley to recall those let go on the 18th. Smedley testified that he did not transfer Rosas, Dobbs, and Price to work on the black fruit after November 18 because he did not consider them capable of performing such work. Other than this general conclusion there is nothing at all to show that they were in fact incompetent and their work in green olives was satisfactory. No particular skill is involved and each of the three testified credibly that from time to time during the fall of 1957 she had worked for a few hours upon each occasion in the black fruit. Smedley said that he was unaware of this so he could not have formed an opinion of their competency based upon any obser- vation in that connection. Gomez, he conceded, "was very good on that" and the only reason he gave for not transferring her was "her inability to get along with the other girls." When she quit her employment with the Respondent in 1956 or early 1957, Gomez did so because for some reason which she said she did not understand, her forelady, Jessie Clauson, became angry with her. Unable to find words in English to discover the cause of the difficulty and for that reason unable to give an explanation to mollify Clauson, she left. I cannot find this to constitute a basis for an opinion that she was unable to get along with other employees. Otis Ray, the general manager, seems not to have attributed any significance to it either for in September 1957 he invited Gomez to return to work. Clauson was then no longer at the plant. There is no evidence that in the fall of 1957 Gomez was anything but a wholly satisfactory employee. I do not believe that her diffi- culty with Clauson some months before was a consideration in the mind of Smed- ley when he decided not to transfer her on November 18. Smedley testified that on November 18 he did not put the new employees at work in the green fruit because had he done so he would have had inexperienced workers there and also in the black fruit if he had transferred those from the green fruit who would then have been replaced by the new workers. Clearly this would not have been true in the case of Gomez. She was admittedly competent. Each of the other three had some experience working in black fruit and there is a total lack of probative evidence to indicate that they lacked any qualification to do such 2 Smedley testified that to close the plant would entail a loss of perishable fruit. I do not suppose that he actually intended to close • down. I find, however, that he made the threat. C. M. GIFFORD & SONS 1435 work. I find that Gomez, Rosas, Dobbs, and Price had not demonstrated any incapacity for employment in black fruit and that each of them, and particularly Gomez, had some experience in performing the operation involved. Considering Respondent's fear that the Union would succeed in gaining members among its employees, considering the threat to close the plant, the offer of higher wages and long hours to Salazar and Dominguez if they would not join the Union, and the remark by Haggerty that those who were on the Union's list had cut their throats along with the fact that Smedley had information that Gomez, Rosas, Dobbs, and Price had signed union cards, I am convinced and find that they were let go on November 18 because the Respondent did not want to retain in its employ anyone who favored the Union if it could be avoided. Each was told that she would be recalled when needed. But when need arose two additional new em- ployees were hired. Upon all the considerations and conclusions above, I find that Gomez, Rosas, Dobbs, and Price were discharged on November 18, 1957, because of Respondent's belief that they were members of or supporters of the Union. By the discharges the Respondent discriminated in regard to their hire and tenure of employment to discourage membership in a labor organization and thereby has committed unfair labor practices within the meaning of Section 8 (a) (3) of the Act. By the discharges, by threatening to close the plant, by offering the prospect of higher wages and continued long hours, and by saying in substance that union sup- porters would lose employment, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. III, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in con- nection with its business operations described in section I, 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 of commerce. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it be required to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Mercedes Gomez, Herlinda Rosas, Josephine Dobbs, and Manuela Price on November 18, 1957, it will be recom- mended that each be offered reinstatement to her former or substantially equivalent employment, and be made whole for any loss of earnings suffered as a result of the discrimination by payment to each of the sum of money each would have earned as wages after November 18, 1957, to the date of offer of reinstatement, less any interim earnings .3 It will also be recommended that the Respondent make available to the Board or its agents all payroll and personnel records necessary to, or convenient for, a computation of the amount of back pay due. Upon the basis of the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. General Truck Drivers, Warehousemen and Helpers Union, Local 542, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Mercedes Gomez, Herlinda Rosas, Josephine Dobbs, and Manuela Price, thereby discouraging membership in the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the discharges, by threatening to close the plant, by offering the prospect of increased earnings and continued long hours , and by intimating that union sup- porters would lose employment, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and ( 7) of the Act. [Recommendations omitted from publication.] 3 F. W. Woolworth Company , 90 NLRB 289. 1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SUPPLEMENTAL INTERMEDIATE REPORT On May 12, 1958, I issued an Intermediate Report and Recommended Order in this proceeding. Thereafter, by order dated September 10, 1958 , the Board sus- tained certain of the exceptions of the Respondent in connection with rulings made at the hearing and directed the General Counsel forthwith to make available to the Respondent such pretrial written statements of witnesses who testified for the General Counsel as the Respondent might designate . Upon motion of the Respondent, the Board , on September 30, 1958, ordered the reopening of the record and remanded the proceeding to the Regional Director for the Twenty-first Region to arrange further hearing. On October 23, 1958, in San Diego , California, upon due notice , the hearing was reopened before the duly designated Trial Examiner. Witnesses Josephine Dobbs, Herlinda Rosas , Mercedes Gomez , and Maria Ajesus Aguayo were recalled to the stand and subjected to further cross-examination by counsel for the Respondent on the basis of their pretrial statements . Witness Enrique Dominguez was present in the hearing room and available for cross- examination but not recalled by the Respondent. Witness John Salazar was not present . Counsel for the General Counsel explained that he had made diligent effort to locate Salazar at his Tijuana, Mexico , address , without success. No contention was made that Salazar wilfully or deliberately absented himself from the reopened hearing. Further cross-examination of Dobbs, Rosas , and Gomez developed certain slight and unimportant inconsistencies between their pretrial statements and their testi- mony as given in the original hearing . I find no reason on the basis of the further cross-examination to change any finding in any respect based upon their testimony. A motion by counsel for the Respondent to strike the testimony of John Salazar because he was not made available for further cross -examination is before me for ruling . Upon considerations that Salazar was cross-examined to the extent counsel for the Respondent seemed to find desirable at the original hearing ; that his pre- trial statement although made available to counsel for the Respondent was not offered in evidence as indicating any inconsistency existing between the contents of the statement and the testimony given at the hearing ; and that in these cir- cumstances the interest of justice would not be served by granting the motion to strike, the motion is denied. In consequence , no change is here made in the findings of fact , conclusions of law, or recommendations contained in my Intermediate Report and Recommended Order of May 12, 1958, in this case. Morris Fishman & Sons, Inc. and Local 30, Philadelphia Leather Workers' Union of the Fur and Leather Department , Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case No. 4-CA-1653. February 16, 1959 DECISION AND ORDER On August 15, 1958, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Respondent also requested oral argument . As the record , exceptions , and brief adequately present the issues and the positions of the parties, the request for oral argd- ment is denied. 122 NLRB No. 165.