Local 542, Operating Engineers, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Jun 24, 1965

153 N.L.R.B. 410 (N.L.R.B. 1965)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Members and employees may communicate directly with the Board's Regional
Office, 327 Logan Building, Seattle, Washington, Telephone No. Mutual 2-3300,
Extension 553, it they have any question concerning this notice or compliance with
its provision.
Local 542, International Union of Operating Engineers, AFL-
CIO, and Rodney Laster , Business Representative and Ritter
Bros., Inc. Case No. .44-CC-318-2. June 24, 1965
o DECISION AND ORDER
On April 2, 1965, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondents filed exceptions and a supporting brief, the General
Counsel filed cross-exceptions and a supporting brief, and the Respond-
ents filed an answer to the General Counsel's cross-exceptions.
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 parties, on November 16,1964, entered into a stipulation whereby
they waived a hearing before a Trial Examiner and agreed that the
record of the United States District Court for the Middle District of
Pennsylvania on a hearing before said court on October 29, 1964, upon
petition of the Regional Director for Region 4 for injunctive relief
pursuant to Section 10(a) of the Act, be substituted in lieu thereof.'
The Board has considered the Trial Examiner's Decision, the excep-
tions and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby adopts as its Order the
Order recommended by the Trial Examiner, and orders that Respond-
ents, Local 542, International Union of Operating Engineers, AFL-
'On December 4, 1964, the Honorable William J . Nealon, United States District Judge
for that court , issued his memorandum and order granting the petition and enjoining
Respondents , pending final disposition of the charge herein by the Board , from the con-
duct alleged as unfair labor practices.
153 NLRB No. 41.
LOCAL 542, OPERATING ENGINEERS, AFL-CIO, ETC. 411
CIO, its officers, agents, and representatives, and Rodney Laster, busi-
ness representative of said Union, his agents and representatives, shall
take the action set forth in the Trial Examiner's Recommended Order.2
2 The telephone number for Region 4, given at the bottom of the Appendix attached to
the Trial Examiner's Decision, is amended to read. Telephone No. 597-7617.
TRIAL EXAMINER'S DECISION
The complaint 1 in this proceeding alleges that the Respondents (herein called
the Union and Laster, respectively) engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended (herein called the Act), by threatening to picket, and by picketing, at
the site where the Charging Party (herein called Ritter) and others were engaged in
construction work, with an object of forcing Ritter, and other employers, to cease
doing business with each other and with one Donald P. Melvin (herein called
Melvin).
Respondents answered, admitting the picketing but denying the commission of
unfair labor practices and alleging that the sole purpose of the picketing was to
publicize Ritter's breach of its collective-bargaining contract with the Union.
Upon the filing of the charge herein, the Regional Director for Region 4 con-
ducted an investigation and, finding reasonable cause to believe that the charge was
true and that a complaint should issue thereon, pursuant to Section 10(i) of the
Act he petitioned the United States District Court for the Middle District of Penn-
sylvania for injunctive relief pending the final adjudication by the Board with respect
to the matters involved. The petition came on for hearing before said court on
October 29, 1964, evidence was taken before Honorable William J. Nealon, United
States District Judge for that court, and briefs were subsequently submitted to him.
On December 4, 1964, Judge Nealon issued his memorandum and order, granting
the petition and enjoining Respondents, pending final disposition of the charge herein,
from engaging in the conduct charged as unfair labor practices.
On November 16, 1964, the parties entered into a stipulation whereby they waived
a hearing before a Trial Examiner and agreed that this matter be submitted for
decision on the record of proceedings before the District Court and briefs to be filed.
This proceeding was thereafter duly referred to Trial Examiner Sidney D. Goldberg
for decision. Briefs filed by the General Counsel and by counsel for the Respond-
ents have been considered.
For the reasons hereinafter set forth in detail, I find that Respondents, by threat-
ening to picket and by picketing at the construction site of Ritter Bros. and its sub-
contractors, induced or encouraged employees to engage in a work stoppage and
threatened, coerced, and restrained Ritter and its subcontractors; that an object of
Respondents' activities was to force Ritter and its subcontractors to cease doing busi-
ness with Melvin and with each other, and that Respondents thereby violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act.
Based upon the entire record herein, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
The complaint alleges, and Respondent stipulated, that Ritter is engaged, as gen-
eral contractor, in constructing an office and warehouse building for International
Business Machines Corporation (herein called IBM) near Mechanicsburg, Penn-
sylvania, and that Ritter and its subcontractors have placed orders for goods and
materials for the project, to be imported from outside the Commonwealth of Penn-
sylvania, amounting to more than $50,000. It was also admitted that Ritter has
subcontracted the masonry work to Caretti, Inc. I find that Ritter and Caretti, Inc.,
are employers and persons engaged in commerce or in an industry affecting com-
merce within tF meaning of the Act.
'Issued October 30, 1964, on a charge filed September 30, 1964.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE RESPONDENTS
The Union is a labor organization and Laster, its business representative, is
admittedly its agent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The principal facts are not in dispute, nor is there any direct conflict in the testi-
mony of the witnesses. There was, however, testimony by witnesses for the General
Counsel concerning statements by Laster which, although not directly denied by him,
are either not referred to in his testimony or phrased in different, but not conflict-
ing, language. In view of this lack of direct conflict, unless otherwise stated, I have
given equal credence to the testimony of all witnesses.
Caretti, to assist it in the performance of its masonry subcontract, engaged Mel-
vin to move, with the "hi-lift" equipment he owns and operates, the pallets loaded
with blocks, bricks, and mortar'' Melvin began his work for Caretti during the first
week in September 1964 3 A few days later, one of the tractor operators on the
job asked him whether he had a union card and Melvin said he had none. On Sep-
tember 8 Laster visited the job and asked Melvin whether he owned the hi-lift.
Melvin said he did and showed his owner's card to Laster. Melvin also said he
was willing to join the Union and asked Laster how much it would cost. Laster
said he did not know but would find out.
On the same day Laster spoke with Joseph Bartush, Ritter's superintendent, told
him that Caretti had a nonunion operator on the job, and that, if it was not "straight-
ened out by the 10th of September, Thursday morning, there would be a picket line
on the job." 4 This message was reported to Ritter but it was decided to permit the
arrangement to stand.
On September 10 Melvin was on the job shortly after 7 a m., setting material in
place for use by the masons and bricklayers who were to start work at 8. Between
7:30 and 7:45 a.m., two pickets appeared at the construction site. They walked back
and forth across each of the two entrances to the property, wearing signs reading:
Dispute between Ritter Bros.
and
Operating Engineers, Local 542
The pickets did not speak with anyone and did nothing except walk on the highway
at the entrances. When Melvin became aware of the picketing, he stopped his
machine and went to Caretti's office, a couple of miles down the road.
Bartush came to work a few minutes before 8. When 8 o'clock had passed and
none of the workmen on the project began working, he questioned the carpenter
steward who said that, because of the picket line, nobody would work. He then
went out front and asked the pickets what they were doing but they gave no answer.
Bartush then found Laster and asked him whether, if Melvin were removed, the
men would go back to work. According to Bartush, Laster answered: "Providing
you wouldn't bring him back" and Bartush said he could not promise that.5
At this time there were at the construction site, but not working, 20 employees of
Ritter, 9 of Caretti, and 6 of General Welding & Steel Erectors, another subcon-
tractor. There were also on the project several trucks loaded with steel awaiting
unloading by the employees of General Welding .
Shortly after Bartush spoke with Laster, Caretti arrived at the construction site
and Bartush and Caretti discussed the removal of Melvin from the job. Caretti
said he would remove Melvin as soon as photographs of the picketing had been taken.
The photographs were taken and Melvin and his equipment left the site about 9.30.
As soon as he had done so, the pickets left and the men on the job began to work.
2 Melvin's compensation was at an hourly rate for the use of his equipment and his
services in its operation. The parties treated the arrangement as a contractual one.
3 All dates herein are 1964
4 Laster did not controvert this testimony but his testimony was that he told Bartush
that he had found Melvin on the job and that "this job was in violation of the contract
through the hiring " He also testified that he told Bartush that "the contract was in
violation because the contract had not been followed as to the subletting clause " Laster's
awkward and confused phraseology on the witness stand was, I find, his effort to express
concepts concerning motive that were not his and which, even at the time of the hearing,
he only dimly understood I find that Laster put it to Bartush as Bartush testified.
5 Laster's testimony shows that Melvin was discussed and he did not dispute Bartush's
account, which I credit.
LOCAL 542, OPERATING ENGINEERS, AFL-CIO, ETC. 413
Melvin had not, when the testimony was taken, returned to the construction site.
although there was work for him to do there.
B. The issues
The foregoing facts, the General Counsel contends, establish that Respondents
induced and encouraged employees to refuse to perform services and coerced per-
sons engaged in commerce with an object of forcing Ritter to cease doing business
with Caretti, and forcing Ritter, Caretti, and others to cease doing business with
Melvin.
In opposition to this contention, Respondents rely upon certain provisions of the
Union's collective-bargaining contract with Ritter 6 to support their claim that Ritter
had violated the contract and that the picketing was solely for the purpose of pub-
licizing their dispute with Ritter over the violation of the contract.
C. Discussion and conclusions
Despite minor differences discussed below, which I find insufficient to affect the
outcome, the substantial facts in this case are similar to those in Denver Building
and Construction Trades Council (Gould & Preisner), 82 NLRB 1195, enfd. 341
U.S. 675, the result herein, therefore, must be the same.
In that case the Council's expressed concern was the fact that Doose & Lintner,
the general contractor on the job, had subcontracted the electrical work to Gould &
Preisner, which employed nonunion men. The peaceful picketing of the construction
site, with a sign stating, "This job unfair to Denver Building and Construction Trades
Council," resulted in a cessation of work by union employees and constituted, the
Board held, inducement of employees to engage in a strike with an object of forcing
Doose & Lintner and other employers to cease doing business with Gould & Preisner,
in violation of Section 8(b) (4) (A) of the Act.
There, as here, the Union argued that its sole dispute was with the general con-
tractor and that the picketing was solely to publicize that dispute. The Supreme
Court disposed of this contention in the following language.
The respondent labor organizations contend that they engaged in a primary dis-
pute with Doose & Lintner alone, and that they sought simply to force Doose &
Lintner to make the project an all-union job. If there had been no contract
between Doose & Lintner and Gould & Preisner there might be substance in their
contention that the dispute involved no boycott. If, for example, Doose &
Lintner had been doing all the electrical work on this project through its own
nonunion employees, it could have replaced them with union men and thus
disposed of the dispute. However, the existence of the Gould & Preisner sub-
contract presented a materially different situation. The nonunion employees
were employees of Gould & Preisner. The only way that respondents could
attain their purpose was to force Gould & Preisner itself off the job. This, in
turn, could be done only through Doose & Lintner's termination of Gould &
Preisner's subcontract. The result is that the Council's strike, in order to attain
its ultimate purpose, must have included among its objects that of forcing Doose
& Lintner to terminate that subcontract.?
The Court then pointed out that the Board had found "that an object, if not the
only object" of the strike was to force the contractor to terminate Gould & Preis-
The Union's collective-bargaining contract with Ritter provides, inter alia, as follows:
Article II
General Provisions
Section 2: Hiring System
(a) The employer shall give the Union reasonable notice of its need for workmen,
and within such period shall not hire persons not referred by the Union . .. .
a m e w s a s
Section 3:
The employer association and Employer named herein agrees that he will not sub-
contract any of his work to be performed on the construction site under this agree-
ment to any subcontractor except under the terms and conditions of this
agreement . .. .
7 At 688.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner's subcontract. In this case Respondents contend that "Ritter was the primary
disputee" and that their reason for picketing was their desire to publicize the fact
that Ritter had violated the contract. This contention ignores the problem sought to
be treated by Section 8(b) (4) and the thrust of the Supreme Court's opinion in the
Gould & Preisner case, as well as the numerous subsequent decisions in this field
holding the section to have been violated where the disruption of doing business is
an intermedate object-not the ultimate object-of the activity.8 Moreover, neither
from Laster's awkward, confused, and evasive testimony nor from the brief filed by
Respondents' counsel is it possible to determine the manner in which Respondents
contend that Ritter was "in violation of the contract." A failure to comply with
the requirements of the hiring system might constitute, under some circumstances, a
violation of the contract. Here, any such claim is inadmissible with respect to
Melvin's employment or subcontract since his arrangement was with Caretti, whereas
Respondents have designated Ritter as the violator of the contract. Contrary to
Respondents' contention, from Laster's statements, both to and concerning Melvin,
his removal of the pickets when Melvin and his equipment left the construction site,
and his testimony that "The act [that removed the contract violation so that the
pickets could leave] was when the subcontractor [Melvin] left the job. He [Ritter]
was no longer in violation" it is clear that their principal consideration was getting
Melvin off the job. Accordingly, I find that an object of Respondents' picketing 9
was to force or require Ritter to cease doing business with Caretti and to force
Ritter, Caretti, and others to cease doing business with Melvin.
Most of the cases cited by Respondents in support of their defense are not applica-
ble here, either because they do not deal with situations involving more than one
employer or because they are cases in which the effect of the picketing on neutrals
was merely an incidental effect of lawful primary activity. The hot cargo cases
are of no assistance to Respondents-although, concededly, the contract provision
in this case does not contravene Section 8(e)-since the Board, and the Supreme
Court, have held that efforts to enforce such clauses, by action otherwise unlawful,
would be no less unlawful because based upon the provision.10
It has long been settled that strike action, although conducted in part to force
compliance with contract terms, constitutes, where severance of contractual rela-
tionships with others is involved, unlawful activities under Section 8(b) (4).11
If anything was done by Ritter which, in Respondents' view, constituted a viola-
tion of the collective-bargaining contract, the Union's remedy "may be enforced
only through lawsuits, and not through economic action." 12 Respondents' resort
to self-help by activities violative of Section 8(b) (4) constitutes unfair labor prac-
tices under that section.
8 One of the most recent is National Maritime Union v. N.L R B. (Weyerhaeuser Lines
& Houston Maritime Assn.), 342 F. 2d 538 (C.A. 2), enfg. 147 NLRB 1243 and 147 NLRB
1317.
0 Herein found to constitute inducement and encouragement of the individuals employed
at the construction site to engage in a strike or a refusal to perform services (Interna-
tional Brotherhood of Electrical Workers, Local 501 v NL.R.B. (Samuel Langer), 341
U.S 694, 700-704), as well as coercion and restraint of the persons engaged at the site
in the construction of the buildings for IBM (International Hod Carriers, Building and
Common Laborers' Union of America, Local No 1140, AFL-CIO (Gilmore Construction
Company), 127 NLRB 541 ; Northeastern Indiana Building and Construction Trades
Council (Centlivre Village Apartments), 148 NLRB 854; Los Angeles Building and Con-
struction Trades Council (Carl Leipsig, Inc ), 149 NLRB 1037; Ohio Valley Carpenters
Distract Council v N.L.R B. (Hankins & Hankins Constr. Co ), 339 F. 2d 142 (CA. 6),
enfg. 144 NLRB 91)
10 Sand Door & Plywood Co., 113 NLRB 1210, affil. sub nom . Local 1976, United Broth-
erhood of Carpenters etc. v N L R B , 357 U S 93 See also Local 5, United Association
of Journeymen etc. (Arthur Venners Co.), 137 NLRB 828, enfd. 321 F. 2d 366 (CA.D C.).
11 Bangor Building Trades Council (Davison Construction Co.), 123 NLRB 484, enfd
as modified 278 F. 2d 287 (C.A 1) ; Building and Construction Trades Council of San
Bernardino etc. v. N.L.R.B. (Gordon Fields), 328 F. 2d 540 (C.A D.C.), enfg in part
139 NLRB 236; International Brotherhood of Teamsters etc, Local 294 (Island Dock
Lumber, Inc), 145 NLRB 484, enfd 58 LRRM 2518, March 3, 1965 (CA. 2)
'-Northeastern Indiana Building and Construction Trades Council (Centlivre Village
Apartments), 148 NLRB 854. See also Sheet Metal 1Voikers v. Hardy, 332 F 2d 682
(CA. 5)
LOCAL 542, OPERATING ENGINEERS, AFL-CIO, ETC. 415
The Supreme Court 's decision in N.L.R .B. v. Fruit and Vegetable Packers, etc.
(Tree Fruits Labor Relations Commitee, Inc.), 377 U.S . 58, cited by Respondents,
provides no support for their defense. The issue in that case was whether picketing,
carefully directed to members of the public urging them not to buy a particular
product, was immunized by the newly added proviso to Section 8(b) (4) authorizing
"publicity, other than picketing ," in aid of a product boycott . The Board , in hold-
ing that picketing violated the section, felt bound by the express language of the
statute to hold that the Union , by picketing , had lost the protection of the proviso
The Supreme Court disagreed , pointing out that the legislative history of the 1959
enactment indicated that true consumer boycotts were not among the so-called
"evils" to be cured by the legislation and that, therefore , the picketing should not
be construed as action to "threaten , coerce or restrain " the retail store handling,
among many others, the boycotted product. Since it is quite clear that no product
boycott is involved in this case , the principle of the cited cases is inapplicable.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, occurring in connection
with operations of IBM, Ritter , and Caretti , described above, have a close, inti-
mate, and substantial relation to trade, traffic , and commerce among the several
States and tend to lead to and have led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices violative
of Section 8(b)(4)(i ) and (ii )(B) of the Act , it will be recommended that each of
them cease and desist therefrom and that each of them take certain affirmative action
to effectuate the policies of the Act.
On the basis of the entire record in the case, I reach the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Sections 2(5) and
8(b) of the Act.
2. Laster is an agent of the Union within the meaning of Sections 2(13) and
8(b) of the Act.
3. Ritter and Caretti are engaged in commerce, or in an industry affecting com-
merce, within the meaning of Sections 2(6) and ( 7) and 8 ( b)(4) of the Act.
4. By inducing and encouraging the employees of Ritter and Caretti to cease
performing services for their respective employers , with an object of forcing and
requiring them to cease doing business with each other and with Melvin, Respond-
ents have engaged in an unfair labor practice within the meaning of Section 8(b) (4)
(i) (B) of the Act.
5. By coercing and restraining Ritter and Caretti, with an object of forcing and
requiring them to cease doing business with each other and with Melvin , Respond-
ents have engaged in an unfair labor practice within the meaning of Section 8(b) (4)
(ii) (B) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that Respondents Local 542, International Union of Operating Engi-
neers, AFL-CIO, its officers , agents, and representatives , and Rodney Laster, busi-
ness representative of said Union , his agents and representatives , shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by Ritter or Caretti, or
any other employer or person engaged in commerce or in an industry affecting com-
13 Compare * Chauffeurs, Teamsters and Helpers Local 150 , etc. (Jack W. Sellers, et al ;
d/b/a Coca Cola Bottling Company of Sacramento ), 151 NLRB 734
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce, to engage in a strike or a refusal in the course of his employment to perform
any services for his employer.
(b) Threatening, coercing, or restraining Ritter, Caretti, or any other person
engaged in commerce or in an industry affecting commerce, where an object thereof
is to force or require Ritter or Caretti to cease doing business with each other, or
force or require Ritter, Caretti, or any other person to cease doing business with
David P. Melvin.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at the business offices of Local 542 in Philadelphia, Pennsylvania, and
Harrisburg, Pennsylvania (if any), copies of the attached notice marked "Appen-
dix." 14 Copies of said notice, to be furnished by the Regional Director for Region
4, shall, after being duly signed by an official representative of Local 542 and by
Laster, be posted by them immediately upon receipt thereof and be maintained by
them for 60 consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps shall be taken
by Local 542 and Laster to insure that said notices are not altered, defaced, or cov-
ered by any other material. Local 542 and Laster shall also sign copies of the
notice, which the Regional Director will make available for posting at premises
where employees of Ritter and Caretti are employed.
(b) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this Recommended Order, what steps have been taken to comply here-
with.15
14 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 Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
is 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 have been taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 542, INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage any individual employed by Ritter Bros.,
Inc., Caretti, Inc., or any other employer or person engaged in commerce or
in an industry affecting commerce, to engage in a strike or a refusal in the
course of his employment to perform services for his employer, and WE WILL
NOT threaten, coerce, or restrain Ritter Bros., Inc., Caretti, Inc., or any other
person engaged in commerce or in an industry affecting commerce, where an
object in either case is to force or require Ritter Bros., Inc., or Caretti, Inc., to
cease doing business with each other, or to force or require Ritter Bros., Inc.,
Caretti, Inc., or any other person to cease doing business with David P. Melvin.
LOCAL 542, INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(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.
SAFWAY STEEL SCAFFOLDS COMPANY OF GEORGIA 417
Persons may communicate directly with the Board's Regional Office, 1700 Bankers
Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania, Tele-
phone No. 735-2612, if they have any questions concerning this notice or compli-
ance with its provisions.
Safway Steel Scaffolds Company of Georgia and Aircraft and
Engine Maintenance and Overhaul , Building and Construc-
tion Manufacturing, Processing and Distribution and Allied
Industries Employees, Local 290, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 12-CA-3008. June ?4,1965
DECISION AND ORDER
On April 5, 1965, Trial Examiner C. W. Whittemore 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 the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
exceptions limited to the content of the notice attached to the Trial
Examiner's Decision.
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 [Chairman McCulloch and Members Brown and Zagoria].
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 briefs,2 and the entire record
'At the hearing, the Trial Examiner rejected a request of the Respondent for produc-
tion of a memorandum prepared by the General Counsel when he interviewed one of his
witnesses , Frechette . As the memorandum was not read , signed , or otherwise approved
or adopted by Frechette , we find no error in this ruling . In any event, even if Frechette's
testimony be stricken, as the Respondent urges, the ultimate result we reach would remain
unchanged inasmuch as our essential findings need not rest on Frechette's testimony.
2 After issuance of the Trial Examiner's Decision, the Respondent, in connection with
certain alleged unlawful statements attributed to Manager Wallace , filed with the Board
a motion to reopen the record to adduce additional evidence as to his absence from the
plant on a certain date . The General Counsel filed an "Opposition To Motion
To Reopen Record." Under the circumstances here , the proffered evidence is immaterial,
cumulative , and would not, in any event, alter our findings . Moreover , no adequate reason
has been shown why the proffered evidence could not have been introduced at the hear-
ing. For each of these reasons , we hereby deny the motion to reopen the record. The
Respondent ' s request for oral argument is also hereby denied , as in our opinion , the record,
including the exceptions and briefs , adequately presents the issues and positions of
the parties.
153 NLRB No. 32.
796-027-66-vol . 153-28