Holyoke Cinema Shops, Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1965

155 N.L.R.B. 769 (N.L.R.B. 1965)

HOLYOKE CINEMA SHOPS, INC., ETC. 769
Holyoke Cinema Shops, Inc.; Miracle Mart, Inc. (a Michigan cor-
poration ) ; Miracle Mart , Inc. (a Pennsylvania corporation) ;
Miracle Mart, Inc. (an Indiana corporation ) ; Miracle Mart,
Inc. (a Virginia corporation ) ; Miracle Mart of Kingston, Inc.;
Miracle Mart of Detroit , Inc.; Miracle Mart of Joy, Inc.; Mir-
acle Mart of Warren , Inc.; Miracle Mart of Johnstown, Inc.;
Miracle Mart of Muskegon , Inc.; Miracle Mart of Muncie, Inc.;
Allen Fur Company, Inc. d/b/a Miracle Mart; Riga , Inc. d/b/a
Franklin Discount Department Store and Retail Clerks Inter-
national Association , AFL-CIO
Amalgamated Clothing Workers of America, AFL-CIO; Central
States Joint Board , Retail and Department Store Employees,
Amalgamated Clothing Workers of America, AFL-CIO; Ken-
tuckiana Joint Board , Amalgamated Clothing Workers of
America, AFL-CIO (Holyoke Cinema Shops , Inc., et al.) and
Local 1441, Retail Clerks International Association , AFL-CIO.
Cases Nos. 25-CA-1432 and 25-CB-467. November 12,1965
SUPPLEMENT -,\-L DECISION AND ORDER
On November 26, 1962, the National Labor Relations Board issued
its Decision and Order in the above-entitled proceeding,' finding that
the Respondent, Holyoke Cinema Shops, et al., herein called the Com-
pany, and the Respondent Unions, herein called Amalgamated, had
not engaged in certain conduct in violation of the National Labor Rela-
tions Act, as amended, and dismissed the complaint in its entirety.
Thereafter, on December 12, 1963, the Court of Appeals for the Dis-
trict of Columbia remanded the proceeding to the Board for the pur-
pose of taking further testimony.2 On March 6, 1964, the Board
issued an order reopening the record in this proceeding and directing
that a further hearing be held for the purpose of receiving further
evidence in conformity with the court's remand.
On January 21, 1965, Trial Examiner C. W. Whittemore issued his
Supplemental Decision in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices as alleged in the complaint and recommending that
they cease and desist therefrom and take certain affirmative action, as
set out in the attached Trial Examiner's Supplemental Decision.
Thereafter, Amalgamated filed exceptions to the Trial Examiner's
1139 NLRB 1321.
2326 F. 2d 663 (C.A.D.C.), cert. denied 377 U. S. 981.
155 NLRB No. 71.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supplemental Decision and a brief in support thereof; the Charging
Party filed an answering brief to Amalgamated's exceptions, and the
General Counsel filed a brief in support of the Trial Examiner's Sup-
plemental Decision.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the reopened hearing and finds that no prejudicial error was commit-
ted. The rulings are hereby affirmed. The Board has considered the
entire record in this proceeding including the Trial Examiner's Sup-
plemental Decision and the exceptions and briefs, and finds merit in
certain of the exceptions of Amalgamated. Accordingly, the Board
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent that they are consistent with this Decision
and Order.
The Company operates a chain of discount stores and, in early
August 1961, was in the process of opening a new store in Muncie, Indi-
ana. The Company hired a number of new employees prior to the open-
ing of this store; on August 2 it hired one Howard, an organizer for
Amalgamated, and, on August 7, it hired two other Amalgamated
organizers, Ice and Denham. On August 15, on the basis of an inde-
pendent card check which indicated that Amalgamated represented a
majority of the employees at the Muncie store, the Company recognized
Amalgamated as bargaining representative of these employees. On
August 16 the Company signed a union-security contract with Amal-
gamated. During this same period of time the Retail Clerks, the
Charging Party herein, contending that the Muncie store was an accre-
tion to the unit represented by the Retail Clerks at the Company's
Fort Wayne store, 65 miles from Muncie, requested recognition as
representative of the Muncie employees and sought permission to "sign
the employees." The Company, however, refused to grant these
requests by the Retail Clerks.
On July 19, 1962, Trial Examiner Whittemore issued his original
Intermediate Report, finding that on August 1, 1961, Breihof, the
Company's general manager and labor relations director, agreed with
Ungar, a representative of Amalgamated, that the Company would
hire three women Amalgamated organizers to do "quiet, efficient orga-
nizing"; that pursuant to that agreement, Amalgamated Organizers
Howard, Ice, and Denham were hired by Store Manager LaVictor;
that although Breihof was aware of the organizing activity of these
three employees, he did nothing to interfere with it; and that the Com-
pany refused "similar assistance" to the Retail Clerks. The Trial
Examiner accordingly found that by the foregoing conduct and by
entering into a union-security contract with Amalgamated "under
HOLYOKE CINEMA SHOPS, INC., ETC. 771
such conditions," the Company violated Section 8(a) (1), (2), and (3)
of the Act; and that by entering into such contract with the Company,
Amalgamated violated Section 8(b) (1) (A) and (2).
The Board reversed the Trial Examiner's findings and dismissed
the complaint. The Board found that, even assuming that the Com-
pany entered into an agreement to hire the Amalgamated organizers,
the record did not establish that the organizers were hired pursuant
to such agreement; that instead the organizers were hired in the normal
course of the Company's business; and that the agreement to hire the
organizers, even if it existed, would not in itself by unlawful since, at
most, it indicated an intent by the Company to violate the Act, which
under Board precedent was not unlawful.3 The Board further found
that the record did not establish that the Company had knowledge of
any organizing activity by employees on behalf of Amalgamated either
during working time or on company premises; that the Company did
not unlawfully refuse access to Retail Clerks to its Muncie employees;
and that, in view of the foregoing and as the record established that
Amalgamated represented a majority of the Company's employees
when the Company and Amalgamated entered into a union-security
contract, the Respondents did not violate the Act by entering into such
agreement. In view of these findings the Board deemed it unneces-
sary to decide whether in fact on August 1 Breihof and Ungar entered
into an agreement to hire union organizers.
In its remand of this proceeding to the Board, the court of appeals
stated that, if a conspiracy to organize the store existed, "further proof
of its effectiveness is not required to establish violations of Sections
8(a) (1), (2), and (3), and 8(b) (1) (A)," since "such a conspiracy
would inevitably, in some degree at least `interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in Section 7,'
and `interfere with the formation or administration of any labor
organization.' " The court accordingly directed the Board to take the
testimony of Ungar and LaVictor, who had not testified at the original
hearing, and "any other testimony which may assist the Board m
determining whether or not a conspiracy ... did in fact exist."' The
court did not otherwise disturb any of the findings in the Board's
original Decision and Order.
Pursuant to the court's remand, a reopened hearing was held on
July 19, 1964, during which Ungar and LaVictor testified. The Trial
Examiner in his Supplemental Decision found that an "arrangement"
existed between Breihof and Ungar to hire three Amalgamated orga-
nizers and he therefore reaffirmed his original conclusion that the
Company violated Section 8(a) (1), (2), and (3) of the Act and that
Amalgamated violated 8(b) (1) (A) and (2).
3 B M. Reeves Company , Inc., 128 NLRB 320.
212-809-66-vol. 155-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted, the court remanded this proceeding to the Board to deter-
mine whether in fact the Company and Amalgamated conspired that
the Company would hire three Amalgamated organizers who would
engage in organizing activity among the Company's employees. The
only evidence tending to establish that such conspiracy existed was
the testimony of Breihof and LaVictor. Thus, at the original hearing,
Breihof testified that: On August 1, 1961, he met with Ungar who
told him that Amalgamated was going to try to organize the Muncie
operation; Ungar requested that Breihof hire three women organizers
who were experienced discount girls and who would do a quiet, efficient
job of organizing the store; Breihof told Ungar to arrange that the
girls come to him personally when they reported to the store; at that
time Ungar told him that the name of one of these girls was Howard
and on the following day he gave him the names of Denham and Ice;
and Howard was hired without Breihof's knowledge and when the
other two girls reported, Breihof sent them to LaVictor who hired
them. At the reopened hearing, La Victor testified that: Breihof told
him "to hire three specific people [Howard, Ice, and Denham] by
name"; Breihof never gave him instructions to hire any other
employees by name; Breihof did not tell him why these persons were to
be hired, but that he "assumed they were union organizers"; and he
interviewed and hired each of the three Amalgamated organizers.
Although Ungar at the reopened hearing denied that he entered
into any agreement with Breihof, or indeed that he had seen Breihof
during the period in question, the Trial Examiner in effect credited
the testimony of Breihof and LaVictor and discredited the testimony
of Ungar. These credibility resolutions were, except in part with
respect to the discrediting of Ungar,4 not based on the demeanor of the
witnesses. Thus, in his original Intermediate Report, the Trial Exam-
iner credited Breihof's testimony on the ground that it was "undis-
puted"' and that it was "corroborated by certain sworn statements ...
properly characterized as admissions against interest," and in his
Supplemental Decision, the Trial Examiner credited LaVictor's testi-
mony as being "consistent with the undisputed testimony of Breihof
at the original hearing."
While Breihof's testimony at the hearing was consistent with an
affidavit given by Breihof to a Board agent on November 7, 1961, his
testimony was inconsistent in relevant respects with the earlier affi-
davit which Breihof gave to a Board agent on September 13, 1961,
less than a month after the contract between the Company and Amal-
gamated was signed. Thus, Breihof's first affidavit states that no
agreement was made with Amalgamated "which permitted them to
* The Trial Examiner discredited Ungar's denial on the grounds that the "perfunctory
delivery of his denial was far from persuasive" ; and that the fact that Ungar was not
called at the original hearing to dispute Breihof's testimony "militates against crediting
his belated denial."
HOLYOKE CINEMA SHOPS, INC., ETC. 773
enter the store and organize employees." At the hearing, on the other
hand, he testified that he agreed with Ungar that the Company would
hire three Amalgamated organizers who would engage in organizing
at the store. Further, in his first affidavit, Breihof denied that the
Company had knowledge that any employee was an agent of a labor
organization at the time she was hired, while at the hearing he testi-
fied that he sent Denham and Ice to Store Manager LaVictor who
hired them. At the hearing, Breihof testified that those portions of
his first affidavit inconsistent with his testimony were not true, and
he offered no explanation for having made false statements in his first
affidavit.6
Breihof's testimony, as amplified by his second affidavit, which he
reaffirmed at the hearing, was also inconsistent with LaVictor's testi-
mony. Breihof testified that he did not tell LaVictor of the con-
spiracy, that he did not give him the names of the three organizers,
and that except to tell Dunham and Ice to see LaVictor, he did not
interpose himself in the hiring process in order to make certain that
any of the three organizers be hired. LaVictor, on the other hand,
testified that Breihof told him the names of the three organizers and
instructed him to hire them. Breihof's testimony is also inconsistent
with that of Union Organizers Ice and Denham. Breihof testified
that Ice and Denham came into the store on August 7, that they intro-
duced themselves by name to Breihof who sent them to LaVictor, and
that LaVictor hired them without any word from Breihof. Ice and
Denham, on the other hand, testified that they did not speak to Breihof
prior to their being hired by LaVictor.6
5As noted, the Trial Examiner stated that Breihof's testimony was corroborated by
Breihof 's sworn statements , "properly characterized as admissions against interest." The
Trial Examiner presumably referred to Breihof 's affidavit of November 7, 1961, in which
he admitted that the Company had engaged in unfair labor practices by entering into a
conspiracy with Amalgamated. We note, however, that* The record establishes that in
July 1961 counsel for the Company agreed with a representative of the Retail Clerks that
the Company would recognize the Retail Clerks as representative of the Muncie employees
but that Breihof did not know of this agreement when be signed the contract with Amal-
gamated ; on September 27, 1961, approximately 1 month after he had entered into the
agreement with Amalgamated , Breihof sent a letter to Amalgamated requesting it to void
its contract with the Company and to ask for an election at the Muncie store ; and the
Company did not file exceptions to the original Intermediate Report in which the Trial
Examiner found that it violated Section 8 ( a) (1), (2), and ( 3), it was not represented at
the reopened hearing, and it filed no exceptions to the Trial Examiner's Supplemental
Decision reaffirming his earlier findings that the Company had committed unfair labor
practices . In view of these circumstances , although technically Breihof may have admit-
ted that the Company had engaged in an unfair labor practice , we are not convinced that
it was against what Breihof considered to be his and the Company's interest at the time
he gave the second affidavit for Breihof to admit that he had acted unlawfully in con-
spiring with Amalgamated and in granting it recognition
6In connection with a related incident , Breihof testified that in order to further fulfill
his agreement with Ungar , he ordered LaVictor not to lay off Howard during a temporary
layoff, which occurred around August 4, prior to the hire of the other two organizers
Ice and Denham and a third organizer testified , however, that Howard told them that she
had been laid off, that Howard was with them away from the store during working hours
during the layoff, and that Howard returned to work after the layoff
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner, as noted, credited LaVictor's testimony at the
reopened hearing on the grounds that it was "consistent with the undis-
puted testimony of Breihof at the original hearing." LaVictor's
testimony tends to corroborate that of Breihof only to the extent that
LaVictor's testimony presupposes that Breihof had entered into a
conspiracy with Amalgamated.? However, for the reasons already
stated, LaVictor's testimony is inconsistent in material respects with
the testimony of Breihof. Further, LaVictor's testimony was incon-
sistent with the testimony of Ice and Denham in that LaVictor testified
that he was told by Breihof to hire Howard, Ice, and Denham and
that he interviewed and hired each of the three Amalgamated organiz-
ers. Ice and Denham, on the other hand, denied that they mentioned
their names to LaVictor, prior to their being hired. In addition,
LaVictor testified at the reopened hearing that prior to the original
hearing he had given affidavits to a Board representative on Septem-
ber 29 and October 31, 1961; 8 that nowhere in these affidavits did he
state, as he testified at the hearing, that Breihof instructed him to hire
three named individuals and that he first told a Board representative
that Breihof had given the names to him shortly before the reopened
hearing.9
To summarize : The only evidence establishing that the Company
and Amalgamated entered into an unlawful conspiracy was the testi-
mony of Breihof and LaVictor; the Trial Examiner did not credit
this testimony on the basis of the demeanor of these witnesses but
rather because the testimony was "undisputed"; however, the testi-
mony of Breihof and LaVictor was not only mutually inconsistent but
was also inconsistent in significant respects with respective prehearing
affidavits and with the testimony of Union Organizers Ice and Den-
ham; and the Trial Examiner did not deal with these inconsistencies in
either his original Intermediate Report or his Supplemental Decision.
On the basis of the foregoing and the record as a whole, and unlike
the Trial Examiner , we believe that neither Breihof nor LaVictor is
a credible witness.10 As there is no other credible evidence upon which
7 We note, however, that LaVictor was not present when Breihof allegedly entered into
the conspiracy and that he did not testify that Breihof told him that Breihof had entered
into a conspiracy with Amalgamated.
8 These affidavits are not in evidence.
s We also note that LaVictor's testimony is also inconsistent in other respects with that
of Lewis, a representative of the Retail Clerks. Thus, LaVictor denied that he had a dis-
cussion with anyone regarding union organization at the Muncie store Lewis, however,
testified that on August 15 he spoke to LaVictor at the Muncie store regarding the Retail
Clerks' assertion that the Muncie store was an accretion to the Fort Wayne contract and
"requested permission to sign the employees" , and that when he returned to the store the
next day about the same matter he again talked to LaVictor who turned him over to
another company official.
"The Trial Examiner, as noted, discredited, partly on grounds of demeanor, the testi-
mony of Ungar who denied that Breihof and he entered into a conspiracy to hire Amal-
gamated organizers. Although we do not reverse this credibility resolution by the Trial
Examiner, the discrediting of Ungar does not establish the credibility of the witnesses who
gave testimony contrary to his (Quo Enterprises, Inc, 140 NLRB 1001, 1003) ; nor does
it constitute affirmative proof of a conspiracy upon which a finding of a violation of the
Act could be based.
HOLYOKE CINEMA SHOPS, INC., ETC. 775
an affirmative finding of a conspiracy could be based, we find that the
General Counsel has failed to establish by a preponderance of the
credible evidence that the Company conspired with Amalgamated in
violation of the Act. Since we find that there was no conspiracy
between the Company and Amalgamated that the Company would hire
Amalgamated organizers, we further find that by hiring these orga-
nizers, the Company did not violate the Act. We shall also reaffirm,
for the reasons stated in our original decision, our original findings,
which were not disturbed by the court of appeals, that the Company
did not otherwise engage in conduct violative of the Act. As we have
found that the Respondents did not violate the Act, we shall reaffirm
our original Order dismissing the complaint in its entirety."
[The Board dismissed the complaint.]
"In view of our disposition of this case, we find it unnecessary to rule on the Amal-
gamated' s contentions that the Trial Examiner was in error in rejecting certain of Amal-
gamated's exhibits at the hearing and by refusing to grant in full Amalgamated' s motion
to correct the transcript.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On July 19, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report
in the above-cited cases, finding that the Respondents had violated Section 8(a)(1),
(2), and (3) and 8(b)(1) (A) and (2) of the National Labor Relations Act, as
amended. On November 26, 1962, the National Labor Relations Board issued its
Decision and Order, reversing the Trial Examiner and dismissing the complaint in
its entirety.' (139 NLRB 1321, 1324).
On December 12, 1963, the United States Court of Appeals for the District of
Columbia remanded, directing that the Board take "testimony of Ungar and
LaVictor, together with any other testimony which may assist the Board in determin-
ing whether or not a conspiracy to violate the sections of the Act in suit did in fact
exist. If the Board finds that such a conspiracy did exist, it will provide appropriate
remedies." (326 F. 2d 663)
On March 6, 1964, the Board issued its order reopening record and remanding
proceeding to Regional Director for further hearing, directing that a "further hearing
be held before a Trial Examiner for the purpose of receiving additional evidence con-
sistent with the Court's decision" and that "upon conclusion of such further hearing,
the Trial Examiner shall prepare and serve upon the parties a Trial Examiner's Sup-
plemental Decision, containing findings of fact upon the evidence received pursuant
to the provisions of this Order, conclusions of law, and recommendations."
On October 8, 1964, the Regional Director for Region 25 issued his order and
notice of hearing. On October 22, 1964, he issued an order rescheduling hearing
Pursuant to the last-mentioned order, a hearing was held on December 7, 1964, in
Indianapolis, Indiana, before me.
At the reopened hearing all parties except the Respondent Company were repre-
sented by counsel and were afforded full opportunity to present evidence consistent
with the court order, cited heretofore, to argue orally, and to file briefs. Oral argu-
ment was waived Briefs have been received from all parties appearing at the
reopened hearing and have been fully considered 2
1 On February 4, 1963, the Board modified its decision, disavowed the Trial Examiner's
finding that three women organizers for the Amalgamated were hired to organize pursuant
to an agreement between Ungar (an Amalgamated representative) and Breihof, then the
Respondent Company's labor relations director. On the contrary, the Board specifically
found that "these three individuals were hired by Store Manager Lester LaVictor in the
normal course of the Company's business."
2 Accompanying the brief from the Respondent Unions was a motion to correct the
transcript in minor particulars No objection having been received from other parties,
said motion is hereby granted
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record thus made, and from his observation of the witnesses, I make
the following:
FINDINGS OF FACT
The single question now before me for resolution appears to be whether or not "a
conspiracy to violate the sections of the Act in suit did in fact exist." 3
In my Intermediate Report I found, on the basis of Breihof's undisputed testimony
and certain written admissions against interest, as follows, in part.
(1) Breihof first came to Muncie in July, to oversee the preparations for
opening a new store in that city He transferred Lester LaVictor from the Fort
Wayne, Indiana, store to be resident manager at Muncie.
(2) About August 1, Breihof met with Max Ungar, a representative of the
Respondent Central States. Ungar requested and Breihof granted permission
to have three women organizers, who were also experienced "discount girls,"
put on the Muncie payroll and do "quiet, efficient" organizing.
Neither LaVictor nor Ungar was called to testify at the original hearing
Based upon the credible testimony of LaVictor at the reopened hearing, which is
consistent with the undisputed testimony of Breihof at the original hearing, I now
find:
(1) As the store manager at Muncie he was, at times material, required to follow
the instructions of Breihof, his superior.
(2) Just before the Muncie store opened for business LaVictor was instructed by
Breihof to "hire three specific people," whom he identified as Howard, Ice, and
Denham. (These are the same three individuals found previously by me to have
been hired pursuant to the "arrangement" between Ungar and Breihof.)
(3) Although Breihof did not tell LaVictor why these three were to be hired, the
store manager "assumed," according to his testimony, that they were union organizers,
and as instructed he hired them.
(4) Neither before nor after this single occasion did LaVictor receive from
Breihof instructions to employ specific individuals.
As a witness at the reopened hearing Ungar, called by General Counsel, admitted:
(1) that he was in Muncie for a "day or two" in the latter part of July or the first
of August 1961, and (2) that he "discussed" organization of the store with Howard,
Ice, and Denham. He denied, however, that he met Breihof in Muncie and that he
discussed with him the hiring of Howard, Ice, and Denham
Conclusions of Fact
I cannot and do not believe Ungar's denial that he discussed with Breihof the
hiring of the three organizers. The perfunctory delivery of his denial was far from
persuasive. Relevant circumstances, including the fact that he was not called by
the Respondent Unions at the original hearing to dispute any detail of Breihof's testi-
mony which plainly had placed him in the role of an alleged coconspirator, militate
against crediting his belated denial. Other testimony of Ungar adds support to the
conclusion that the "arrangement" between himself and Breihof was precisely as
Breihof described it at the original hearing-to the effect that the three above-named
girls would be hired. Ungar said that he instructed another individual, one Pat
Crist, to help organize the Muncie store employees, and to apply there for a job, but
that upon applying she was not hired.
In short, I conclude that the credible testimony of LaVictor further supports the
finding in the original Intermediate Report to the effect that an "arrangement"
existed between Breihof and Ungar to hire the three named organizers for the pur-
pose of organizing the Muncie store. And under the circumstances noted in the
Intermediate Report, including the fact that a similar privilege was denied the Charg-
ing Union, it is concluded that the "purpose" of the "arrangement" was unlawful.
Finally, to use the terms of the court remand, I conclude that a conspiracy to violate
the sections of the Act in suit did in fact exist.
3 Quoted language is, as previously noted , from the court 's remand. In its Order the
Board directed me to take evidence "consistent with the court's decision " It is considered
that by its direction the Board in this case relieves me of the duty I was specifically
reminded of in The Prudential Insurance Company of America (Insurance Agents' Inter-
national Union, AFL-CIO), 119 NLRB 768: to follow its precedents until the Board itself
or the Supreme Court overrules them For the Board, in its decision, stated "We do not
agree" with the Trial Examiner's findings that Breihof and Ungar did agree to put three
women organizers on the Muncie store payroll to organize the employees in the Amal-
gamated-although in a footnote it added, "we deem it unnecessary to decide whether in
fact Breihof and Ungar entered into an agreement "
SHAPIRO PACKING COI\IPANY, INC. 777
Upon the foregoing findings and conclusions of fact, and pursuant to the Board's
remand order, I make the following:
CONCLUSIONS OF LAW
Since the foregoing findings and conclusions of fact further support the conclusions
of law already reached by me, they are reaffirmed and are hereby incorporated by
reference.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I reaffirm
my original recommendations and hereby order them incorporated by reference in
full, including the text of the notices to be posted appearing as appendixes thereto,
and excepting only the following paragraph , which is to be substituted for the final
paragraph in the Intermediate Report.
"Notify the Regional Director for Region 25, in writing , within 20 days from the
date of the service of this Trial Examiner 's Supplemental Decision , what steps have
been taken to comply herewith."
Shapiro Packing Company, Inc. and Meat Cutters , Packing House
and Allied Food Workers, District Union 433. Case No. 10-CA-
5915. November 15, 1965
I)h;CISION AND ORDER
On July 9, 1965, Trial Examiner Louis Libbin issued his Decision
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 his attached Decision. He also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended that such allega-
tions be dismissed. Thereafter, the Respondent and the Charging
Party filed exceptions to the Trial Examiner's Decision and Respond-
ent filed a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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, the exceptions and brief. and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner?
'Respondent 's motion to dismiss the Charging Party' s exceptions , taken to the recom-
mended dismissal of the 8 ( a) (5) allegation , is hereby denied.
2 In concluding that the Union did not represent a majority of the employees at the
time it requested recognition , the Trial Examiner ruled that the union authorization card
of employee Lonnie Buzzie was not valid for purposes of determining the Union 's majority
status because Buzzie testified that he bad signed his card on the basis of a statement by
the union solicitor that a majority of or practically everybody had signed such a card,
a statement which was incorrect . As we do not regard Buzzie ' s card to be determinative
of majority status , we find it unnecessary to decide whether the exclusion was propel
155 NLRB No. 75.