Westchester County Executive Committee, Etc.

National Labor Relations Board - Board Decisions

Apr 19, 1963

142 N.L.R.B. 126 (N.L.R.B. 1963)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Westchester County Executive Committee Representing
the Subordinate Unions Numbers 20 , 22, 27, 48, 51 , 55, 75 and
83, of the Bricklayers , Masons & Plasterers International
Union of America, of Westchester and Putnam Counties and
Builders Institute of Westchester and Putnam Counties, Inc.
Case No. 2-CB-3460-5. April 19, 1963
DECISION AND ORDER
On January 2, 1963, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 08(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 affirined. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions.
The Trial Examiner found that Respondent had violated Section
8 (b) (3) and 8 (b) (1) (B) of the Act by threatening to strike, striking,
and offering to call off its strikes against individual employer-members
of Builders Institute of Westchester and Putnam Counties, Inc.,
referred to here as the Institute, in order to force them to withdraw
from the Institute, their collective-bargaining representative, and to
enter into individual contracts with Respondent although it was obli-
gated to bargain for an association wide agreement with the Institute.
In its exceptions and brief, Respondent renews the arguments
rejected by the Trial Examiner, that there was an impasse in the
negotiations between Respondent and the Institute as of the close
of the bargaining session of May 2, 1962, and that it was privileged
to bargain with, and seek agreement from, individual employer-
members under such circumstances, without violating Section
8(b) (1) (B) and 8(b) (3). On the basis of the entire record, and
contrary to the Respondent's exceptions, we conclude that the nego-
tiating parties had not reached an impasse in negotiations on May 2.1
'Accordingly, we do not reach Respondent 's contention that its conduct would have
been lawful if the parties had reached an impasse in bargaining.
142 NLRB No. 14.
WESTCHESTER COUNTY EXECUTIVE COMMITTEE, ETC. 127
The last contract between Respondent and the Institute was due to
expire April 30, 1962. They met in negotiations for a new contract
on March 8 and April 16 and 30. As of April 30, agreement on some
four minor issues had been reached, but there was still a substantial
difference between them as to the amount of the wage package. Re-
spondent was seeking an additional 67 cents an hour in wages and
fringe benefits, spread over a 2-year period. The Institute had offered
42 cents for the same period. It was agreed that the old contract
would be extended to May 2, and that the parties would meet again
on that date. On May 2 the parties again discussed the wage issue.
Neither changed its previous position on the amount of the wage
package or on the period to which it should apply.
Their refusal to make any concessions on the wage issue at this
session does not, however, establish that an impasse had been reached
and that further negotiation would have been valueless. Thus, accord-
ing to the notes taken by Respondent's secretary-treasurer of the May 2
meeting, the Institute negotiators advised that they would have to con-
sult with their committee before they could change their position.
They also agreed to meet anytime to continue negotiations after further
consultation with their principals, and in fact, when the parties met
again on May 11, after the Union had gone out on strike, they increased
their wage offer. Respondent also, according to the notes of the
session, did not foreclose further negotiations and, in fact, agreed
to poll its membership to determine whether to accept the Institute's
request that certain wages which had been paid in cash under the
old contract might now be paid by check. Although no date for a
further meeting was scheduled on May 2 by the mediator who had
sat in at the last two meetings, he indicated that another meeting
would be called. On May 3 Respondent struck individual employer
members of the Institute and attempted to obtain separate contracts
from them. As noted above, another meeting occurred on May 11 and
again on May 15.
An impasse should not be mechanically inferred simply because the
parties have failed to reach complete agreement after some specified
number of negotiating sessions or whenever one party announces that
his position is henceforth fixed and no further concessions can be ex-
pected. Under the facts presented here, we agree with the Trial
Examiner that no impasse had been reached by May 2.2 Only a few
, Part of Respondent 's argument that an impasse existed as of May 2, is that the
Institute has in fact made such an admission in a suit which it has brought against the
Respondent for damages under Section 301 of the Act , in which it alleges that the parties
reached a "deadlock" in their negotiations on or about May 1 , 1962. The theory on
which the suit is based is that, because of the deadlock no new agreement had been
reached by May 2 , and that consequently the terms in the old agreement remained in
effect, including a provision requiring arbitration of disputes and prohibiting strikes pend-
ing such arbitration . The allegation of a deadlock in negotiations was simply to establish
that no new agreement had been reached , thus automatically renewing the old agreement ;
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiating sessions had been completed. Although the parties had
not as yet made any progress on the wage issue, measured by con-
cessions actually offered, the Institute had left open the possibility of
some give-and-take by explaining that it would go back for further
instructions. Also, the Union had agreed to poll its membership re-
specting concessions on one minor issue and agreement had already
been reached on a number of others. The course of negotiations had
not yet come to a dead end.'
Inasmuch as there was no impasse as of May 2 it becomes clear,
from Respondent's subsequent strikes of individual employers and its
efforts to obtain separate contracts, that it sought to drive a coercive
wedge between these employers and the Institute in order to force
them to abandon the Institute as their collective-bargaining repre-
sentative. We therefore, conclude, as did the Trial Examiner, that
Respondent's actions after May 2 violated Section 8(b) (1) (B) and
8 (b) (3) of the Act 4
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.'
we do not construe this allegation as an admission that further bargaining after May 2
would have been futile.
Respondent further contends based on certain testimony by Frank, the Institute 's execu-
tive vice president , that "It was also admitted that the Institute advised its members
after May 2 that it was perfectly all right if the members wanted to sign individual con-
racts with the Union ." However we note as Frank further testified , that the Institute
did not so advise its members until "the latter part of May ," when the 'Union's strike was
in existence and after a number of its members had already signed separate contracts.
Frank explained that the Institute gave this advice to the remainder of the association
because it recognized that there was economic pressure on those members who had not
signed.
8 See H . E. Fletcher Co., 131 NLRB 474, 483. The Board's decision in Lumber and
Sawmill Workers , Local 2647 et al. ( Cheney California Lumber Company ), 130 NLRB
235, 238, relied upon by Respondent , is inapposite . There the Board found that negotia-
tions had reached an impasse , where, in addition to other facts showing the futility of
further bargaining , each party explicitly advised the other that Its position was firm-the
employer stating that it would give no ground absent a change in general econom ic condi-
tions and the Union asserting that it would strike, if necessary, to protect its position.
"Hoisting & Portable Engineers Local anion # 701 International Union of Operating
Engineers , AFL-CIO ( Cascade Employers Association, Inc.), 141 NLRB 469.
5 The first sentence below the signature line in the notice to all employees is amended
to read: "This notice must remain posted for 60 consecutive days from the date of post-
ing . . ." instead of "60 days from the date hereof. . . ."
The notice is further amended by adding the following paragraph : "Employees may
communicate directly with the Board ' s Regional Office, 745 Fifth Ave ., New York, N.Y.,
10022 Telephone No. Plaza 1-5500, if they have any question concerning this notice or
compliance with its provisions."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on May 18, 1962, by the Builders Institute , the General
Counsel of the National Labor Relations Board on August 17, 1962 , issued and
served a complaint in the above-entitled case . On September 13, 1962 , an answer
was received. The complaint alleges and the answer denies that the Respondent
Union by certain conduct has engaged in unfair labor practices in violation of Sec-
tion 8 (b)(1)(B) and 8 (b)(3) of the National Labor Relations Act, as amended.
WESTCHESTER COUNTY EXECUTIVE COMMITTEE, ETC. 129
Pursuant to notice a hearing was held in New York, New York, on October 22 and 23,
1962, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented by counsel and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. General Counsel argued upon the record. Briefs have been received from
the Respondent and the Charging Party. After the close of the hearing a stipulation
was received, signed by counsel for all parties, its text being to the effect that certain
testimony of witness Edward J. Tobin, which fixed the date of a certain event as
being May 1, 1962, is not to be relied upon. Said stipulation is hereby made a part
of the record.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Builders Institute of Westchester and Putnam Counties, Inc.,' is a New York
corporation. It is an association of some 500 or 600 builders, contractors, suppliers,
manufacturers, and financial institutions directly or indirectly engaged in the con-
struction of residential and other buildings. More than 100 such members are em-
ployers of bricklayers and masons. As the representative of such employers it
negotiates collective-bargaining agreements with, among others, the Respondent
Union.
Since 1956 and until 1962 successive contracts have been entered into by these
two parties. The 1960-62 contract, in evidence, reveals that it was executed, on
behalf of the mason contractors of the Institute,2 by the Institute's executive vice
president, George A. Frank, and on behalf of the Respondent Union by James A.
Nilan, chairman.
During the year preceding issuance of the complaint employer-members of the
Institute purchased and caused to be delivered to their places of business building
materials valued at more than $50,000 directly from States of the United States
other than the State of New York.
The Institute and its employer-members are persons and employers engaged in
commerce within the meaning of the Act.
H. THE RESPONDENT UNION
The Westchester County Executive Committee Representing the Subordinate
Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers, Masons &
Plasterers International Union of America of Westchester and Putnam Counties is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The issues raised by the complaint stem from certain admitted conduct by the
Respondent Union shortly after the expiration of the 1960-62 contract referred to
above.
The record contains little factual dispute as to the nature and circumstances of the
actual union conduct: its attempt , by withholding members from work, to cause cer-
tain members of the Institute to sign individual contracts while, at the same time,
meeting and negotiating with the Institute for an industrywide contract.
The real question here is whether, as General Counsel urges, such conduct is
violative of the cited sections of the Act. Section 8(b)(1)(B) prohibits a labor
organization from restraining or coercing "an employer in the selection of his repre-
sentatives for the purposes of collective bargaining or the adjustment of grievances."
Section 8 (b) (3) prohibits the refusal "to bargain collectively with an employer, pro-
vided it [the labor organization] is the representative of his employees subject to the
provisions of Section 9(a)."
2 Originally captioned as "The Mason Contractors of the Builders Institute of West-
chester and Putnam Counties, Inc." The change is pursuant to a stipulation of the
parties at the opening of the hearing.
2It appears that the directors of the Institute appoint three "labor committees," each
to negotiate with different trades or crafts in the industry. The Institute's employing
group here concerned consists of the members employing masons, bricklayers, and
plasterers.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Relevant facts
The following facts are not in dispute , except in minor respects:
(1) At all material times the Respondent has been , and is, the recognized collective-
bargaining representative within the meaning of Section 9(a) of the Act of the em-
ployees of the employer-members of the Institute in a unit consisting of all brick-
layers, masons, and plasterers employed by said employer -members exclusive of
executives, guards, and supervisors as defined by the Act .3
(2) At all material times the employer-members of the Institute have designated
it as their representative for the purposes of collective bargaining and the adjustment
of grievances with the Respondent as the representative of their employees in the
above-described crafts.4
(3) On or about May 1, 1960, the Institute and the Respondent Union entered
into a collective -bargaining agreement covering employees in the above -described
unit, by its terms to expire on April 30, 1962. On or about the latter date the parties
agreed to extend the expiration date to May 2, 1962.
(4) Negotiating meetings looking toward a new contract were held by these parties
on March 8, April 30, and May 2, 11, and 15, 1962.5
(5) By the close of the April 30 meeting the parties had reached substantial agree-
ment on many matters, but not on wages and certain "fringe" items. It was agreed,
however, that the current contract would be extended to May 2.
( 6) At the close of the May 2 meeting all matters were still not agreed upon and
the State mediator who was present stated to both parties that while there "was
apparently no chance of agreement that evening," another meeting would be called .6
(7) On May 3 and various dates thereafter the Union delegates visited members
of the Institute on their jobsites and informed them that unless they signed individual
contracts their employees (in the unit ) would not be permitted to work. Credible
evidence establishes that the following incidents of this nature, among others,
occurred:
1. On May 3 or 4 Sam Gaglione, a representative of Local 27, went to Victor
Borsari, vice president of Darby Construction Company and a member of the
Institute. He gave Borsari a form of an individual contract and, according to his
own testimony, told him to sign it, "or else no contract, no work." Borsari
communicated with Frank, of the Institute, who advised him not to sign.
Employees of this concern did not work until May 9, when Borsari's father,
president of the Company, signed the individual contract with a delegate for
another Local of the Respondent;
2. On May 3 Nicholas Sarasta, president of City-Wide Plasterers, Inc.,7
was visited at the job-site in Briarcliff, New York, by Nilan and a delegate of
Local 20 and was told by them that unless he signed the individual contract,
a copy of which was submitted to him, they would "have to stop the job."
Sarasta, a member of the Institute's committee which had been negotiating with
Nilan and the Union group, declined to sign , pointing out that since he belonged
to the Institute he would "go along with whatever they did." City-Wide's job at
Briarcliff as well as another in New Rochelle were thereupon "stopped" until
Sarasta finally signed the individual contract some two weeks later;
3. Employees of Romani & Picco, Inc., a member of the Institute, stopped
work on May 3 or 4. On May 7 or 8 Charles Carino, business agent for Local 51,
communicated with officers of this concern, both Picco and Romani, and
informed them that the stoppage would continue until they signed. A few
days later an individual contract was signed and work was resumed;
a Although the Respondent early in the hearing took various and conflicting positions
regarding this factual allegation of the complaint, just before the close of General Counsel's
case - in-chief, its counsel admitted the allegation in full.
4 In a written stipulation in evidence the Respondent admitted this allegation of the
complaint.
5 The Respondent 's answers neither admitted nor denied the complaint 's allegation as to
such negotiations on these dates. During the hearing counsel for the Respondent Union
belatedly denied the allegation. The testimony of its own chief witness on the subject,
Nilan , corroborates that of Frank as to the dates of the meeting . Nilan's testimony also
indicates that there was an additional meeting, held on April 1G.
6 The quotations are from Frank's credible testimony. Nilan testified that the mediator
made no arrangement for another meeting but admitted that he said he would "be in
touch " with both himself and Frank.
7 About 30 days before the hearing the name of this company was changed to "Central
Plastering Corporation."
WESTCHESTER COUNTY EXECUTIVE COMI\IITTEE, ETC. 131
4. On May 7 Sam Gaglione, a representative of Local 27, approached Ed-
ward J. Tobin, head of North Lake Construction Corporation, and asked him to
sign an individual contract. He declined, and was then told that while his men
could complete the day at work, they would not be permitted to work there-
after until such a contract was signed. As a witness Gaglione admitted that
stewards were told to stop work without a contract. About a month later
Tobin's son-in-law signed an individual agreement.
(8) Concessions by counsel for the Union made during the course of the hearing
establish that the Respondent caused cessation of work by employees of employer-
members of the Institute other than those named immediately above, for the purpose
of obtaining signatures to individual contracts and offered to discontinue striking if
they signed individual agreements.
(9) As noted heretofore, negotiating meetings between the Respondent Union
and the Institute were held on May 11 and 15, 1962. On May 18 the Institute filed
its charge, and no meetings have been held since May 15.
C. Conclusions
The foregoing facts, the Trial Examiner believes, fully support General Counsel's
contention that the Respondent has violated the cited sections of the Act. The
Respondent's coercive conduct was designed to force employer-members of the
Institute to abandon their own selection of a bargaining representative, in violation
of Section 8(b)(1)(B). And by engaging in this coercive conduct at the same time
it was negotiating with the Institute for an industrywide contract the Union clearly
displayed bad-faith bargaining, in violation of Section 8(b) (3 ).
The Trial Examiner agrees with General Counsel and the Charging Party that the
foregoing conclusions are governed by the Board's determination of similar issues
in Cascade Employers Association, Inc., 127 NLRB 488.8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring in
connection with the operations of the Charging Party described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Westchester Company Executive Committee Representing the Subordinate
Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers, Masons &
Plasterers International Union of America of Westchester and Putnam Counties
is a labor organization within the meaning of Section 2(5) of the Act.
2. Builders Institute of Westchester and Putnam Counties, Inc. and its employer-
members, and each of them, are and have been at all times material persons and
employers engaged in commerce within the meaning of Sections 2(1) and (2) and
8(b)(1)(B) and (3) of the Act.
3. At all times material the Respondent Union has been and is the recognized
collective-bargaining representative, within the meaning of Section 9(a) of the Act,
of the employees of the employer-members of the Institute in a unit consisting of all
bricklayers, masons, and plasterers employed by said employer-members exclusive
of executives, guards, and supervisors as defined by the Act.
4. At all times material the employer-members of the Institute have designated
the Institute as their representative for the purposes of collective bargaining and
the adjustment of grievances with the Respondent as the representative of their
employees. By its conduct and for the purposes above described the Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b) (1) (B) and (3) of the Act.
9 The Trial Examiner concludes that the facts do not support the Respondent 's conten-
tion that an "impasse" had been reached in negotiations on May 2. Furthermore, had a
situation reasonably to be interpreted as an "impasse" or "deadlock" actually existed on
that date , its effect was clearly waived by the continuing negotiations with the Institute
on May 11 and 15. Lenglade Products , 118 NLRB 885 , at 988.
712-548-64-vol. 142-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 above findings of fact and conclusions of law it is recom-
mended that The Westchester County Executive Committee Representing the
Subordinate Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers,
Masons & Plasterers International Union of America of Westchester and Putnam
Counties, its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from:
(a) In any manner restraining or coercing any employer who is a member of
Builders Institute of Westchester and Putnam Counties, Inc., in the selection of
the said Institute, or any other person, group, corporation, organization, or associa-
tion, as the representative for the purposes of collective bargaining or the adjustment
of grievances.
(b) Refusing to bargain collectively with the said Institute with respect to the
wages, hours, and other terms and conditions of employment of employees in the
appropriate unit.
(c) Giving effect to the individual contracts it executed with employer-members
of the Institute on and after May 2, 1962, or any modification, continuation, exten-
tion or renewal thereof.
2. Take the following affirmative action, which will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the above-named Institute, with
respect to wages, hours, and other terms and conditions of employment of employees
in the unit found to be appropriate for bargaining purposes, and, if agreement is
reached, embody the terms in a signed contract.
(b) As hereafter set forth, post copies of the attached notice marked "Appendix." 9
Copies of said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by an official representative of the Respondent,
be posted by the said Respondent at its business office and customary membership
meeting places, including all places where notices to members of the subordinate
unions as numbered above are customarily posted, immediately upon receipt thereof
and be maintained by it for a period of 60 days thereafter. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Furnish to the said Regional Director signed copies of the attached notice
marked "Appendix" for posting by the employer-members of the said Institute, if
such employers are willing, in places where notices to their employees are customarily
posted.
(d) Notify the Regional Director for the Second Region in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.'°
01n 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 "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
10 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the said Regional Director, in writing, within 10 days from the date of
this Order, as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS WHO ARE
MEMBERS OF BUILDERS INSTITUTE OF WESTCHESTER AND PUTNAM COUNTIES, INC.
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
Relations Act, as amended, we hereby give notice that:
WE WILL bargain collectively, upon request, with Builders Institute of West-
chester and Putnam Counties, Inc., with respect to the wages, hours, and other
terms and conditions of employment of employees of the members of the
above-named Institute in the unit described herein, and, if agreement is reached,
embody the terms in a signed contract. The bargaining unit is:
FEDERAL DAIRY COMPANY, INC. 133
All bricklayers , masons, and plasterers employed by said employer -members
exclusive of executives , guards, and supervisors as defined by the Act.
WE WILL NOT in any manner restrain or coerce any employer who is a member
of, or represented by, the said Institute in the selection of the said Institute
or any other person , group, corporation , organization or, association as a
representative for the purposes of collective bargaining or the adjustment of
grievances.
WE WILL NOT give effect or enforce or attempt to enforce our individual
contracts with members of the above -named Institute which were executed on
and after May 2, 1962.
THE WESTCHESTER COUNTY EXECUTIVE COMMITTEE
REPRESENTING THE SUBORDINATE UNIONS NUMBERS
20, 22 , 27, 48 , 51, 55, 75 AND 83, OF THE BRICK-
LAYERS, MASONS & PLASTERERS INTERNATIONAL
UNION OF AMERICA OF WESTCHESTER AND PUTNAM
COUNTIES,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Federal Dairy Company, Inc. and Local Union No. 64, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Case No. 1-CA-3115. April 19,
1963
SUPPLEMENTAL DECISION AND ORDER
On December 28, 1962, Trial Examiner Phil Saunders issued his
Supplemental Intermediate Report in the above-entitled proceeding,
as set forth in the attached Supplemental Intermediate Report, in
which the finding was made that employees Wilson Brown, Carmine
Lopez, James P. Fay, and Ralph Regine were entitled to backpay,
and recommending that Wilson Brown be awarded backpay in the
amount of $1,644.54; Carmine Lopez be awarded backpay in the
amount of $1,890.30; James P. Fay be awarded backpay in the amount
of $2,919.25; and that Ralph Regine be awarded backpay in the
amount of $5,988.59.1 The Respondent filed exceptions to the Sup-
plemental Intermediate Report of December 28, 1962,,and 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 [Chairman McCulloch and Members Rodgers and Fanning].
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 Supple-
The Board, by Decision and Order of March 3 , 1961 , Federal Dairy Company, Inc.,
130 NLRB 1158, directed the Respondent to make whole certain employees for their
losses resulting from the Respondent 's unfair labor practices.
142 NLRB No. 17.