Melville Confections, Inc.

National Labor Relations Board - Board DecisionsJun 20, 1963

142 N.L.R.B. 1334 (N.L.R.B. 1963)

1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and petitions, and on May 10, 1963, the Regional Director approved this withdrawal. 6. As of May 13, 1963, the Court of Common Pleas had made no findings with respect to the aforementioned commerce data. On the basis of the above, the Board is of the opinion that: 1. The Employer is a retail enterprise operating a food supermarket in Lorain, Ohio. 2. The current standard for the assertion of jurisdiction over retail enterprises which fall within the Board's statutory jurisdiction is a gross volume of business of at least $500,000 per annum.1 As indi- cated above, during the 1962 calendar year, the Employer's gross volume of retail business was in excess of $500,000; while, during the first 4 months of 1963, the gross volume of business, if projected over a 1-year period, would exceed $500,000.1 Thus, the Employer's vol- ume of business meets the dollar-volume test in the Board's standard for asserting jurisdiction over retail enterprises. Further, its pur- chases of supplies and inventories originating from outside the State of Ohio affects commerce under the Act and brings the Employer's operations within the Board's statutory jurisdiction .3 Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations here present, the Board would assert jurisdiction over the operations of the Employer with respect to labor disputes cognizable under Sections 8, 9, and 10 of the Act. I Carolina Supplies and Cement Co., 122 NLRB 88; Great Leopard Market Corporation, Inc, d/b/a King Jack 's Foodarania, 140 NLRB 1154 ; City Line Open Hearth, Inc., 141 NLRB 799. 2 See City Line Open Hearth , Inc , supra, and cases cited in footnote 1 therein. N.L.R.B. v. Reliance Fuel Oil Corporation, 371 U. S. 224 ( 1963 ) ; City Line Open Hearth , Inc., supra. Melville Confections , Inc. and Local 329, United Service Em- ployees Union, affiliated with Building Service Employees Union, AFL-CIO. Case No. 13-CA-51492. June 20, 1963 DECISION AND ORDER On April 12, 1963, Trial Examiner Leo F. Lightner issued his In- termediate 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 attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the In- termediate Report and a supporting brief; the General Counsel filed a brief in support of the Intermediate Report. 142 NLRB No. 144. MELVILLE CONFECTIONS, INC. 1335 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modifications : Substitute the following for paragraph 1(a) of the recommended order: (a) Conditioning participation in any profit-sharing plan to employees who are not represented by any labor organization for collective-bargaining purposes. Substitute the following for the first paragraph of the Appendix to the Intermediate Report : WE WILL NOT condition the participation in any profit-sharing plan to employees who are not represented by any labor organiza- tion for collective-bargaining purposes. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Leo F . Lightner in Chicago, Illinois, on January 28, 1963, on the complaint of the General Counsel and the answer of Melville Confections, Inc., herein referred to as the Respondent.' The issue litigated was whether the Respondent engaged in unfair labor practices and thereby violated Section 8 (a)(1) of the Labor Management Relations Act, 1947, as amended , 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully con- sidered . During the hearing the Trial Examiner reserved rulings on the materiality and relevance of certain exhibits . These rulings are disposed of in accordance with findings and conclusions herein set forth. Upon the entire record , and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation, having its principal office and place of business at Melrose Park , Illinois, engaging in the manufacture of candy . During the 12-month period preceding the issuance of the complaint , on November 9, 1962, a representative period , Respondent has done a gross volume of business in excess of $50 ,000. During the same period Respondent purchased and received goods and materials in excess of $50,000 from places outside the State of Illinois . The com- plaint alleges, the answer admits , and I find, that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7 ) of the Act. 1 The charge herein was filed on September 18, 1962, and a complaint was issued on November 9, 1982. 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE LABOR ORGANIZATION INVOLVED Local 329, United Service Employees Union, affiliated with Building Service Employees Union, AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issue The principal issue raised by the pleadings and litigated at the hearing is whether the Respondent since on or about March 19, 1962, and continuing at all times thereafter, interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, by maintaining and continuing to maintain a profit-sharing plan for its employees which requires as a condition pre- cedent to participation in the plan and its benefits, that employees forego representa- tion by the Union, or other labor organization , for purposes of collective bargain- ing, thereby engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. Profit-Sharing Plan-Statement of Company Policies There is no dispute relative to the background evidentiary facts. On June 30, 1958, Respondent entered into a profit-sharing plan agreement with Continental Illinois National Bank and Trust Company of Chicago, as trustee, establishing a "deferred profit-sharing plan for eligible employees," effective as of July 1, 1957. The plan is known as "Melville Confections, Inc. Profit-Sharing Plan." This is a profit-sharing plan in which contributions are made only by the Respondent .2 The plan provides, inter alia: Article III. (9) Defines "eligible employee" as "a regular full- time employee of the Company, not represented by a Union designated as the bargaining agent for the employee." Article III. (10) Defines "participant" as "an eligible employee who has satis- fied the requirements set forth in Article V hereof." Article V provides for "participation" as follows: "Each eligible employee who, on the effective date, shall have completed twelve (12) months of con- tinuous service shall become a participant as of the effective date Each eligible employee who shall not have completed twelve (12) months of continuous service on the effective date shall thereafter become a participant as of the first anniversary date on which he shall have completed twelve (12) months of con- tinuous service. A participant shall continue as such until the date on which an event shall occur (death, disability, retirement or severance of employment) which, under Articles VIII, IX, X or XI of this agreement shall entitle such participant or his beneficiary, to receive a distribution from the Trust Fund, whereupon such participant, or his beneficiary, shall become a distributee as defined in Article III of this agreement; provided, however, for the purposes of Section 2, 3 and 4 of Article VII and Section 5 of Article XII, an eligible employee who is a participant on the last business day of any fiscal year shall be deemed to have bene a participant on the last day of such fiscal year." Article XV "terminations" provides in part- "This Trust and the profit shar- ing plan of which it forms a part may be terminated by the Company at any time by giving thirty (30) days' prior notice in writing to the Trustee and to the Committee." A "first amendment," dated September 25, 1958, contains no modification of the sections set forth. The term "anniversary date" is defined as the first day of each fiscal year of the Trust subsequent to the fiscal year ended June 30, 1958. Benefits are paid to participants upon retirement at or after age 65, death. total and perma- nent disability, or severance of the employment relationship for whatever cause, or to the beneficiary of the participant upon the latter's death. The amount which will be paid to a participant or his beneficiary depends. among other things, upon the length of service of the participant, pursuant to a formula prescribed in the plan, and modified in the amendment A "Statement of Company Policies," effective May 1, 1961, includes item 10 "profit sharing," which in part provides, Under the terms of the plan, an individual must be a full-time employee and have had at least one year seniority prior to the start of any fiscal year, and 2 However, provision Is made for voluntary contributions by participants MELVILLE CONFECTIONS, INC. 1337 cannot be represented by any union or other outside bargaining agent, in order to share in any benefits for that year. This plan was established voluntarily by the company and the company reserves the right to discontinue it at any time. The parties stipulated , and, I find that the provisions of the plan applicable to employee eligibility and participation , as originally set forth in the Profit-Sharing Trust Agreement of 1957, and the booklet "Statement of Company Policies," have remainder unchanged since the plan's inception and are presently in effect. It is also undisputed, and I find that the booklet, "Statement of Company Policies," has been distributed to employees during the period beginning July 1957 and continuing to the date of the hearing, January 28, 1963. Events Related to July 1960 Election Pursuant to an agreement for consent election, an election was held on July 18, 1960.3 The Union filed objections to conduct affecting the results of election The Regional Director found, inter alia, that during a speech on July 16, 1960, the president of the employer stated as follows: This profit-sharing plan was approved by the United States Government and I want to read one clause without comment. It deals with the employees who are eligible to participate in the profit-sharing plan, and the plan reads and I quote: "All full-time workers are eligible to participate in this plan provided they are not a union member or represented by any other bargaining agent." The Regional Director concluded It is the clear and unmistakable import of the quoted phrase from the speech of July 16, 1960, that should the employees select a union to represent them as bargaining agent they would no longer be eligible to participate in the profit-sharing plan and would thereby lose the benefits derived from the said plan ' Such threat of loss of economic benefit is , in the opinion of the under- signed , a sufficient basis for setting aside the election. A second election was held on October 11, 1960, to which the Charging Party filed no objections Events Relative to the Election of January 23, 1962 Pursuant to a stipulation for certification upon consent election , an election was held on January 23, 1962.4 The Regional Director's report on objections recom- mended that the Charging Party's objection based on the eligibility language in the "Statement of Company Policies" booklet be sustained. On September 6, 1962, upon consideration of exceptions, the Board ordered the election set aside The Board found that the eligibility provision of the profit-sharing plan and the conduct of the employer relating thereto tended to inhibit the employees freedom of choice, and therefore interfered with the election. Contentions of the Parties-Concluding Findings General Counsel contends that by maintaining and continuing to maintain a profit-sharing plan for its employees , on and after March 19, 1962,5 which re- quires as a condition precedent to participation in the plan and its benefits that em- ployees forgo representation by the Union, or other labor organization, for pur- poses of collective bargaining, Respondent has engaged in conduct constituting in- terference, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7. General Counsel urges that the kind of eligibility provisions Respond- ent executed as a part of its profit-sharing trust agreement in 1957, and made known to its employees at all times thereafter through the vehicle of its booklet "State- ment of Company Policies," inherently infringes upon basic Section 7 guarantees and foreseeably discourages union membership. It is patent that the "plan" restricts "participation" to "eligible employees " The term "eligible employees" by definition excludes those employees "represented by a union designated as the bargaining agent for the employee." That the employees were advised of the continuation of the plan and its restrictions, through the dis- Case No 13-RC-7259 ( not published in NLRB volumes) Case No 13-RC-8308 ( not published in NLRB volumes). 5 See footnote 1, supra 1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tribution of the "Statement of Company Policies," during the Section 10(b) period, is undisputed. The Board has found the mere maintenance and continuance of a provision in a pension trust plan making nonunion representation one of the qualifications for eligibility to participate therein , itself tends to interfere with , restrain , and coerce employees , who are otherwise eligible, in the exercise of their self-organizational rights guaranteed in Section 7 of the Act. Jim O'Donnell, Inc., 123 NLRB 1639, 1643.6 In General Motors Corporation , 59 NLRB 1143, the Board found that salaried employees were transferred to hourly employees by reason of company policy provid- ing for such a transfer for employees who had designated a collective-bargaining representative . As a result the employees in the bargaining unit were deprived of certain benefits and contingent benefits, including ineligibility to participate in a retirement plan. The Board held that unilateral changes in employment status made by an employer based on the exercise of the right to act collectively, are repugnant to the basic purposes of the Act, are per se at variance with the interdic- tion in Section 8(a)(3) against discrimination in regard to hire, tenure , and condi- tions of employment , and an inevitable deterrent to, and interference with, the exercise of the right to self -organization guaranteed in Section 7. (59 NLRB 1143, 1155.) An employer who contributed money to a union 's welfare trust fund and pension trust fund for the benefit of employee members, without making comparable provisions for nonmember employees , has been found to have engaged in discrimina- tory conduct in violation of Section 8(a)(3) and ( 1) of the Act. Northeast Coastal, Inc., 124 NLRB 441, 442. Warning an employee that , if the Union got in , the employees "will probably lose the profit-sharing" plan, without further explanation , has been found to con- stitute a threat, and conduct in derogation of Section 8(a) (1). Elias Brothers Big Boy, Inc., 139 NLRB 1158. Under the circumstances herein , I find no independent evidence of animus or specific intent to abrogate rights guaranteed by the Act is necessary to support a finding of violation. In the Radio Of°icers7 case the Supreme Court said: This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an ap- plication of the common -law rule that a man is held to intend the foreseeable consequences of his conduct . . Thus an employer 's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement. Con- cluding that encouragement or discouragement will result, it is presumed that he intended such consequence. In such circumstances intent to encourage for discourage ) is sufficiently established. General Counsel further urges that the plan is illegal on its face, that while ex- ecuted in 1957, it has at all times to date remained in full force and effect , and the booklet explaining the plan to employees continues to be distributed , thus a con- tinuing violation exists. In the Gaynor News 8 case the court held that so long as the contract continued in force, if actually illegal, a continuing offense was being committed by the employer. Respondent contends that a careful reading of the pertinent provisions of the entire plan fails to reveal the discrimination charged in the complaint . I find no merit in this contention . No ambiguity in the limitation of benefits to "eligible employees ," as defined , appears. Nor do I find merit in Respondents ' contentions that the statement of company policies is an inaccurate or incomplete statement of the plan . While I have found unnecessary proof of animus or specific intent, Re- spondent 's conduct in the pre-6 -month period in reference to the plan has resulted in two elections being set aside. This evidence has been received only for the purpose of giving color , or bringing into clear focus, the conduct which is the gravamen of the complaint. Respondent , in effect , urges that in the Local No 1424 9 case the Supreme Court barred a finding of a violation where "the evidence in fact marshalled from within the 6-month period is not substantial and the merit of the allegations in the com- 8 Cf. Toffenetti Restaurant Company, Inc., 136 NLRB 1156, enfd 311 F . 2d 219 (C.A 2). The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N.L R B., 347 U.S. 17, 45. 8 N L R B v. Gaynor News Company, Inc., 197 F. 2d 719, 722 (C.A. 2). V Local Lodge No. 1424, International Association of Machinists, AFL-CIO., etc. (Bryan Manufacturing Co.) v. N.L.R.B. 362 U S. 411. MELVILLE CONFECTIONS, INC. 1339 plaint is shown largely by reliance on the earlier events." Suffice it to say, in the Local No. 1424 case, the Court treated with a contract lawful on its face and in its enforcement, but unlawful when made in a barred period. I find this case, and others cited by Respondent, inapposite. Respondent asserts that the plan was approved by the Treasury Department. Thus one agency of the Government has approved that which another agency says is a violation of the Act. I find no merit in this contention. The jurisdiction of the Treasury Department is related to questions concerning the requirements of tax laws. Its rulings do not purport to encompass or apply the restrictions of the Na- tional Labor Relations Act. I have found that the plan, with its unlawful restriction, and the distribution of the booklet advising employees of the restriction, continued throughout the period commencing 6 months prior to the filing of the charge herein. Accordingly, I find that by maintaining and continuing to maintain a profit-sharing plan with the un- lawful conditions set forth, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7, and said conduct is in derogation of the provisions of Section 8 (a)( 1 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent 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 com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, by maintaining and continuing to maintain a profit-sharing plan for its employees which limits participation to "eligible employees," and defines eligible employees as "a regular full-time employee of the Company, not represented by a Union designated as the bargaining agent for the employee." Article XVII entitled "Amendment" of the profit-sharing plan provides "the Company shall have the right to amend this agreement at any time and from time to time by instrument in writing, a copy of which shall be filed with the trustee, provided that no such amendment shall increase the duties or responsibilities of the Trustee without its written consent." I will ac- cordingly recommend that Respondent be ordered to amend the profit-sharing plan to eliminate that portion of article 111 (9) which provides "not represented by a union designated as the bargaining agent for the employee." I will also recommend that Respondent be ordered to amend its booklet "Statement of Company Policies" by striking from paragraph number 10, on page 9, the following language, "and cannot be represented by any union or other outside bargaining agent, in order to share in any benefits for that year." 10 It is further recommended that Respondent be ordered to cease and desist from in any like or related manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 329, United Service Employees Union, affiliated with Building Service Employees Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By maintaining and continuing to maintain a profit-sharing plan for its em- ployees which requires as a condition precedent to participation in the plan and its benefits that employees forgo representation by the Union, or other labor organi- 10 General Counsel, in addition, has requested that the Respondent be ordered to credit the accounts of employees for the amounts of benefits discriminatorily denied them In the 6-month period preceding the issuance of the complaint No allegation of such discrimina- tory conduct appears in the complaint and no evidence of such discriminatory conduct, In the period described, appears in this record 1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation , for purposes of collective bargaining , Respondent has interfered with, re- strained , and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. 4. By the foregoing conduct , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act. 5. 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 upon the entire record in the case, I recommend that the Respondent , Melville Confections, Inc., its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Maintaining and continuing to maintain a profit-sharing plan for its em- ployees which requires as a condition precedent to participation in the plan and its benefits that employees forgo representation by the Union, or other labor organiza- tion, for purposes of collective bargaining ; or so advising its employees in its booklet, "Statement of Company Policies." (b) In any like or related manner interfering with, restraining , or coercing em- ployees in the exercise of their rights of self organization , to form labor organiza- tions, to join or assist Local 329, United Service Employees Union, affiliated with Building Service Employees Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that such rights might be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Amend the profit-sharing plan in accordance with the recommendations set forth in the section entitled "The Remedy." (b) Amend its booklet "Statement of Company Policies" in accordance with the recommendations set forth in the section entitled "The Remedy." (c) Post at its plant in Melrose Park , Illinois , copies of the attached notice marked "Appendix." 11 Copies of said notice , to be furnished by the Regional Director for the Thirteenth Region, shall , after being duly signed by the Respondent's representative , be posted by the Respondent immediately upon receipt thereof, and be maintained by its for 60 consecutive days thereafter , in conspicious places includ- ing all places where notices to employees are customarily posted , including each of Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region , in writing , within 20 days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply with the foregoing recommendations. It is further recommended that unless within 20 days from the date of the receipt of this Intermediate Report, the Respondent shall notify the said Regional Director, in writing, that it will comply with the foregoing Recommended Order,12 the Na- tional Labor Relations Board issue an order requiring Respondent to take the afore- said action. 11In the event that this Recommended Order be 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 be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals. Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " '= In the event this Recommended Order he 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 Respondent has taken to comply therewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that' LAARS ENGINEERS, INC. 1341 WE WILL NOT maintain or continue to maintain a profit-sharing plan for our employees which requires as a condition precedent to participation in the plan and its benefits that employees forgo representation by the Union, or other labor organizations , for purposes of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist Local 329, United Service Employees Union, affiliated with Building Service Employees Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL amend our profit-sharing plan, known as Melville Confections, Inc. Profit-Sharing Plan, by eliminating from the definition of "eligible em- ployees," in article III (9 ) the words "not represented by a union designated as the bargaining agent for the employee ." Said clause , accordingly, shall hereafter define an "eligible employee" as "a regular full-time employee of the Company." All our employees are free to become or remain or to refrain from becoming or remaining members of Local 329, United Service Employees Union, affiliated with Building Service Employees Union, AFL-CIO, or any other labor organiza- tion, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. MELVILLE CONFECTIONS, INC., Employer. 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. Employees may communicate directly with the Board 's Regional Office, Midland Building , 176 West Adams Street , Chicago, Illinois, 60603, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Laars Engineers , Inc. and International Association of Machin- ists, AFL-CIO. Case No. 21-CA-4995. June 20, 1963 DECISION AND ORDER On March 22, 1963, Trial Examiner Herman Marx issued his In- termediate 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 attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the In- termediate Report together with a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- 142 NLRB No. 146.