Burnup and Sims, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1962

137 N.L.R.B. 766 (N.L.R.B. 1962)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burnup and Sims, Inc. and Robert J. Davis. Case No. 12-CA-2156.
June 25, 1962
DECISION AND ORDER
On February 13, 1962, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the said complaint be dis-
missed, as set forth in the Intermediate Report attached hereto. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and finds merit in the General Counsel's exceptions to the Inter-
mediate Report for the reasons discussed below. Accordingly, the
Board adopts only those findings, conclusions, and recommendations
of the Trial Examiner which are consistent with the decision herein.
1. The record establishes, as found by the Trial Examiner, that on
September 21, 1961, approximately 19 truckdrivers staged a walkout
and concerted refusal to resume work and through their spokesman,
Robert J. Davis, presented a demand for a pay increase of 15 cents an
hour; that Respondent was fully cognizant of the facts that the em-
ployees were engaging in a protected concerted activity and the lead-
ers during this movement were Davis, Joseph H. Harmon, and John P.
McKnight; that the men returned to work after manager Carl Moritz
assured them wage increases would be forthcoming within 30 days;
that on September 25, Moritz decided to grant pay increases and to
institute a cutback in personnel; that wage increases were made effec-
tive October 1, 1961; and that Davis, Harmon, and McKnight were
terminated at the end of their workday on Friday, September 29,1961.
The Trial Examiner accepted Respondent's contention that these
terminations were temporary layoffs made for economic reasons and
found the fortuitous selection for layoff of the three leaders in the
concerted activity insufficient to warrant rejection of Respondent's
defense that they were chosen because they exhibited a tendency to be
uncooperative and their services were therefore of less value to it than
were those of employees retained. In reaching his conclusion, the
Trial Examiner was persuaded by what he regarded as a lack of evi-
dence bearing upon Respondent's unlawful motive. The General
.137 NLRB No. 90.
BURNUP AND SIMS, INC. 767
Counsel has excepted to these findings, contending that the record
evidence demonstrates that the layoffs were not economically motivated
but rather were effectuated in retaliation for the walkout of the prior
week, and, even if there were economic reasons for the layoffs, the
selection of the three leaders of the walkout for layoffs was discrimina-
tory and in violation of the Act. We find merit in the General Coun-
sel's contentions.
With respect to Respondent's asserted economic reasons for the lay-
offs of September 29, 1961, at no time did Moritz testify that his deci-
sion to cut back manpower was influenced or necessitated by an
anticipated or experienced drop in business.' Although Tawney,
Moritz' assistant, testified that at this time they were at the point
of operating with excess personnel due to a slowup in business, he did
not relate this factor to the decision to institute the layoff, a decision
in which he took no part, but rather to the selection of the employees
to be laid off. Indeed, other testimony by Respondent's witnesses indi-
cates that there was no substantial change in business activity and the
layoffs in fact caused some dislocation and operating difficulties. Thus,
Tawney testified that right up through the time of the layoff his
drivers, including those in the ready-mix and sand departments af-
fected by the layoffs, were working an average of 55 hours a week on a
5-day week basis. Moritz testified that the drivers were working 11
to 15 hours a week overtime right through the layoff; that during the
layoff other drivers were used on the ready-mix trucks; and that they
had to take as drivers employees from other departments, including
some mechanics, to keep the ready-mix trucks moving with scheduled
orders. In this connection, it is noted that Respondent attempted to
establish by testimony that the sand department was an unprofitable
operation which was merely an accommodation to customers and that
it was eliminated by turning those orders over to a "sand company,"
thus saving the expenses involved. However, the same witnesses gave
contradictory testimony indicating that the sand department was not
in fact eliminated, that one of the laborers with less seniority than those
employees who were laid off was used to drive the sand truck after
the layoff, and that orders were piling up to such an extent that Mc-
Knight was recalled about a month later to his old job driving the sand
truck. From such evidence, we can only conclude that Respondent did
not base its decision to institute a layoff upon any economic necessity
related to any anticipated or experienced drop in business.
The sole economic consideration claimed by Moritz as the reason
for his determination to institute the layoff was the wage increase,
1 The only reference made by Moritz to such economic considerations was advanced as a
factor in selecting the employees to be laid off. In this respect he indicated without
specification that his selection was influenced by the anticipated business in the several
departments.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which employees had demanded by their concerted activities, and
which Moritz concurrently decided to grant, in part.
In support of this defense, Respondent offered in evidence the letter
of September 22, 1961, from Respondent's president to Manager
Moritz, set forth in the Intermediate Report. Moritz, who alone made
the simultaneous decisions to grant wage increases and to institute the
layoff, claims to have made his decision based upon this letter.' While
there are some ambiguities in the letter,' it is clear that when the
various phrases used are read in their context, the letter expressed the
objective of maintaining the required profit ratio at the operation
involved and cautioned as to possible steps to be considered in order
to maintain that ratio in the event the maximum raise demanded by
the employees was granted. It is obvious that Moritz had no clear
directive to cut back on personnel, nor did he have to grant the 15
cents maximum authorized. Moreover, the letter does not establish
as an economic fact that the granting of the full 15 cents demanded
or any part thereof would necessarily result in an unfavorable profit
ratio for the operation.
Furthermore, Moritz testified that he had previously requested and
received authority to grant a general overall 5-cent per hour increase
and had held the authorization for this wage increase "in his pocket,"
making no disclosure thereof, since September 14, 1961, well before
the walkout. He did not indicate that there was any economic reason
for his withholding of this authorized increase of pay; that there was
none is suggested by the fact that it was not authorized pursuant to
any particular employee demand, but was the result of a management
appraisal after Moritz' representation to Respondent's officers that his
crew was cooperating and merited the raise. However, the fact that
Moritz has this authorization "in his pocket" at the time of the
employees' demand and when he received his president's letter relating
to those demands has a specific bearing upon the economic facts before
him when he decided upon the layoff. For, even had he granted the
full 15 cents demanded, 10 cents thereof would be all that could have
2 The letter itself vests final decision on these matters in Moritz On the Monday
following its receipt , Moritz advised his assistant , Tawney, of his decision to grant raises
and to cut back on manpower . Tawney testified that he was not consulted on whether to
grant the wage increases and was not advised of the amount of increase Moritz had de-
cided to give . Nor was he consulted as to whether or not a layoff was necessary and, if
so, how many employees would have to go . He was merely instructed to make a list of
six possibilities for the anticipated layoff.
8 While this letter left the determination as to whether circumstances made it necessary
to meet the full demand of the employees to Moritz ' "discretion in regard to the matter,"
It went on to point out that "under such circumstances [ i.e., "a general increase of 15¢
per hour for all drivers"], your operation will not be subject to making the necessary
profit, and as a result , it will probably be necessary that you give consideration to cutting
down manpower " Whether "manpower" refers to man-hours worked or number of em-
ployees on the payroll and whether "not be subject to" conveys the meaning of an exemp-
tion or failure to meet a requirement , are ambiguities in the letter , the resolution of which
are irrelevant to the issue of whether a clear economic necessity for a layoff was stated
thereby.
BURNUP AND SIMS, INC. 769
been considered as having a new economic impact under the authoriza-
tion letter.
But Moritz did not grant the requested 15 cents per hour to all
truckdrivers. He testified that he decided to and did grant a general
increase ranging between 5 cents and 15 cents to all employees at the
operation, approximating 50 in number, and that of the 19 truck-
drivers, 9 received 15 cents; 4 received 10 cents, and 6 received 5 cents.
Thus, much of the actual increase granted was chargeable directly to
the previously authorized raises, and only a small part could be prop-
erly included in any calculation of the effect of any raises upon the
profit ratio.
Although Respondent purports to rely upon the lower profits for
the operation, resulting from the raises, it has presented no figures
whatsoever relating the cost of the raises to the profit ratio required or
establishing the alleged economic necessity to cut costs, and no attempt
was made to show why a layoff was considered as preferable to other
economic measures 4 This lends weight to the conclusion that Re-
spondent had no such concrete economic considerations upon which
it based its determination to layoff precisely three employees-the
very ones, who by stepping forward, or by other prominent action,
identified themselves before both Respondent and other employees as
the leaders in the concerted activity.
It is therefore clear from the testimony of Respondent's own wit-
nesses that the only consideration involved in instituting the layoff
was the fact rather than the effect of the wage increases resulting
from the employees' concerted demands. This was dramatized by
Respondent's timing of the layoff on the eve of the effective date of the
raise. Further Respondent's resentment and disapproval of employ-
ees' concerted activity is clearly demonstrated by Moritz' conduct in
calling the drivers, who received the October 1 raises, individually
into his office in the presence of Respondent's president. One of these
drivers testified without contradiction that Moritz took this occasion
to advise him that the employees went about getting the raise in the
wrong manner and that he, Moritz, would not stand before the group
'It is interesting and perhaps enlightening to note that such other methods were not
foreign to Respondent. Thus, on the morning of September 20, when the assembled em-
ployees first presented their demand for a 15-cent per hour wage increase to Tawney, his
response was to point out to the employees that economically he could grant them their
request and cut them back to 40 hours a week by hiring 10 additional employees and
eliminating their overtime. He thus pointed out to the employees the economies for the
employer which would result with the same man-hours worked but with overtime elimi-
nated At that time the employees indicated their willingness to accept this solution, but
expressed a doubt as to whether the elimination of overtime could be maintained.
Interestingly, a simple mathematical calculation discloses the economies to which
Tawney alluded . For, presuming a curtailment of business commensurate with the man-
hours worked by three men, Respondent could have granted the full 15-cent per hour-
raise to all drivers, cut their overtime in half, and would have thereby received more
man-hours worked on a smaller total payroll than would be the case by maintaining the-
same overtime and laying off three men, as it did.
649856-63-vol. 137-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of men in that manner again. The Trial Examiner made no mention
of and apparently ignored this evidence bearing upon Respondent's
motive. Thus, all events immediately preceding and following the
layoff, including the continued overtime, belie a defense of economic
necessity. On the contrary, we are persuaded that the handling of the
layoff by the Respondent, looked at in totality, shows that its motive
was to emphasize to its employees the danger of collective action and
to discourage them from engaging in such protected concerted activity
in the future.
Moreover, even assuming arguendo that economic objective is a
proper label for Respondent's conduct, and that without assertion of
a necessity therefor, Respondent could claim as a defense an affirma-
tive desire to maintain a specific profit ratio from the operation and
to bear none of the cost of its employees' economic demands, it is ap-
parent from the foregoing that Respondent did not approach the
matter with a view to accomplishing the best possible financial results.
Rather, Respondent sought to place the burden of the added expense
directly upon the shoulders of those whom it identified as the leaders
of the walkout, thus making it clear that an equal, if not dominant,
motive in determining to institute a layoff was direct retaliation for
the employees' concerted activity.
We can only conclude, therefore, that the layoff was not motivated,
as Respondent contends, by economic exigencies, but that the financial
effect of the wage increases was used as a pretext for a retaliatory
layoff designed to discourage protected concerted activity.' By thus
instituting the layoff, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by Section
7, in violation of Section 8 (a) (1) of the Act.
Finally, even assuming that economic considerations warranted a
layoff, Respondent's selections therefor were in themselves discrimi-
natory in nature. The three men who had openly conducted the
concerted activity of demanding the raises were told that they were
being laid off because of the cost of those impending raises s At the
time of their terminations, Respondent failed and refused to give the
basis for their selection as the persons to be laid off, but instead gave
an equivocal answer to Davis' inquiry as to whether seniority had
been followed. The reasons offered at the hearing by Respondent's
agents for selecting these three men for layoff lack credulity in view
of the inconsistencies in the evidence advanced in support thereof,'
5 See Elks and Watts Products, Inc , 130 NLRB 1216.
9 Respondent's witnesses testified that Davis and McKnight were told that "because of
the cost of the pay raise and a drop in business they were being laid off," and that
Harmon was told that "a cutback was necessitated by the cost of the raise and slow
business "
7 At the hearing, Respondent's witnesses gave various reasons for its selection of the
employees involved, in the course of which many contradictions appear. Thus, although
in the past it has used seniority as a guide, it was denied that this was a consideration
here, but it was then asserted that it was on the basis of relative seniority that six, some-
BURNUP AND SIMS, INC. 771
and the speciousness of these various and diverse reasons takes on
added significance when viewed in light of the entire record.
Accordingly, we find that the selection for layoff of only the leaders
of the concerted activity, when considered in connection with the
demonstrably false reasons advanced for their selection, leads to the
inescapable conclusion that the dismissals were in fact made for rea-
sons proscribed by the Acts We find, therefore, that Respondent, in
laying off Davis, Harmon, and McKnight, discriminated against them
because of their concerted activity in violation of Section 8(a) (1) of
the Act.'
2. By identical letters dated November 8, 1961, Respondent served
notice upon Davis and Harmon 10 that they were no longer employ-
able by the company, thereby converting their layoff into a perma-
nent discharge. The reason given in the letter for such action was
certain alleged misconduct vaguely referred to therein.tl Respondent
claims to have received information from employee Pate that Davis
and Harmon committed the alleged misconduct while they were en-
gaged in union membership solicitation. It made no effort to investi-
gate the matter further, but issued the dismissal letters relying solely
upon an affidavit supplied by Pate covering the matters previously
reported. Respondent's position is that its reliance upon this informa-
tion absolved it of any liability arising from the discharges effectuated
by the letters.
Evidence presented by Respondent in support of its position con-
sisted of testimony by Tawney to the effect that employee Pate re-
ported to him the remarks referred to 12 and further reported that they
times five, sometimes seven, names were considered . Of these maximum of seven, the
three selected were the senior , and admittedly there were three or four other employees
with less seniority who were not even considered . Seniority aside, it is asserted that these
three were not "hustlers," whereas, presumably , all others were. Yet each of the three
had been granted raises within their relatively short tenure of employment , Harmon re-
ceiving one on the occasion of his transfer from the block department into ready-mix,
allegedly because of his inability to do the work there. In addition it is admitted that,
while working in the ready -mix department , Harmon's work was complimented by Moritz
on several occasions . We have already noted that the alleged discontinuation of the sand
department , in which McKnight worked, was contradicted by Respondent' s own witnesses,
and their allusion to a drop in business in the ready-mix department is refuted by the
admitted necessity of assigning employees from other departments to operate the ready-
mix trucks.
s See Ablon Poultry & Egg Company, 134 NLRB 827 ; Layton Oil Company, 128 NLRB
252. Also see Central Freight Lines, Inc., 133 NLRB 393 (IR ) ; Donald L . Trettenero
and Ruby Trettenero d/b/a Trettenero Sand & Gravel Co., 129 NLRB 610, 612.
9 See Gibbs Corporation, 131 NLRB 955, footnote 1; Sherry Manufacturing Company,
Inc., 128 NLRB 739. Cf. Indiana Gas & Chemical Corporation , 130 NLRB 1488.
30 We find , in agreement with the Trial Examiner , that McKnight was recalled and sub-
sequently discharged and that no unlawful conduct in connection therewith has been
established.
n "It has come to my attention that you made or condoned serious threats to damage
property of the Company should the Union fail to win its election . Under such circum-
stances, I cannot re -employ you with our company."
12According to Pate's affidavit "if the Union doesn 't get in, we're going to use some
dynamite to make sure that those who didn't vote for it won't work either ; we'll blow
the gravel bin over and make sure that no one works." Tawney's version of what they
are reported as having said differs in content but expresses a similar idea.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made on the occasion when Davis and Harmon, together, visited
Pate's home for the purpose of soliciting union membership and au-
thorization cards. Respondent also introduced as evidence upon which
it based its actions the affidavit of employee Pate. The affidavit spe-
cifically was not offered to establish the truth or falsity of the state-
ments contained therein. Nor did Respondent have Pate testify with
respect thereto or make any attempt otherwise to prove the truth of
the allegations in Pate's affidavit and report upon which it relied.
On the other hand, record evidence establishes that both Davis and
Harmon were actively engaged in efforts to organize Respondent's
employees on behalf of the Union after their layoff; that in the course
of such activity they did individually call upon employees in their
homes; that they did not, however, call upon Pate together. Both
Davis and Harmon categorically denied making the same or any
similar remark as those attributed to one of them," and denied being
in the presence of and hearing any similar remark allegedly uttered
by the other. Their testimony in this respect is uncontradicted as Pate
did not testify, and, as noted, no effort was made to establish the truth
of his affidavit. Therefore, the General Counsel has presented uncon-
tradicted evidence establishing that Pate's report of a threat is false
and that Davis and Harmon did not engage in the alleged misconduct.
On the basis of the evidence presented by the General Counsel, and
the entire record before us, we can only conclude, and hereby find,
that Davis and Harmon did not engage in the alleged misconduct.
- While assuming no misconduct, the Trial Examiner, nevertheless,
having held that the layoffs were not unlawful, rejected the General
Counsel's argument that the doctrine of Rubin Bros. Footwear, Inc.,
et al.14 was applicable here. He found that Respondent had an honest
belief that Davis and Harmon had engaged in the alleged misconduct
and that this was sufficient defense to the discharges in the circum-
stances, and therefore its conduct was not unlawful. Moreover, the
Trial Examiner concluded that even though Pate's report revealed to
Respondent that Davis and Harmon were engaging in protected union
activity, the evidence adduced was insufficient to establish that Re-
spondent issued the letters of dismissal "because of their concerted or
union activities." We do not agree with these conclusions. The
Rubin Bros. doctrine establishes that when, in the course of protected
activity, employees are accused of misconduct and a respondent takes
action affecting their employment tenure based on a belief that the
employee has engaged in misconduct, such an honest belief would be
an adequate defense to a charge of discrimination for refusing to
"The dismissal letters do not disclose which of the two was reported to have made the
remark and which condoned it. Respondent 's own evidence , as noted by the Trial
Examiner, conflicts in this respect wtah Tawney testifying that Pate reported to him
that it was Harmon and with Pate 's affidavit stating it was Davis.
14 99 NLRB 610
BURNUP AND SIMS, INC. 773
reinstate such employee unless it affirmatively appears that such mis-
conduct did not in fact occur. As noted above, such affirmative proof
is present here. Accordingly, Respondent's conduct in changing their
status from that of layoff to a permanent discharge was not defensible
on the basis urged.
It is undisputed, and Respondent knew, that the alleged misconduct
was asserted to have taken place while Davis and Harmon were en-
gaged in protected union activity, the solicitation of union member-
ship and authorization cards. In view of this knowledge and the fact
that these employees were laid off discriminatorily because of Re-
spondent's desire to rid itself of employees who it knew were leaders
in the protected concerted activity, we can only conclude that, because
of their union activity, Respondent seized up their purported miscon-
duct as an excuse to convert the layoffs of Davis and Harmon into
discharges. The preponderance of all the relevant evidence amply
supports the ultimate conclusion sustaining the complaint. Accord-
ingly, we find that Respondent, by the discharge of Davis and Harmon
on November 8, 1961, because of their union activity, violated Sec-
tion8(a) (3) and (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth herein above and in the
attached Intermediate Report, occurring in connection with its opera-
tions as described in the Intermediate Report, 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 ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and desist
therefrom and take certain affirmative action to effectuate the policies
of the Act. We shall also order that Respondent make each of the
above-named employees whole for any loss of pay he may have suf-
fered, because of Respondent's unlawful and discriminatory actions,
by payment to each of them a sum of money he would normally have
earned as wages from the date of such discrimination to the date of
an offer of reinstatement, less his net earnings during said period.15
The backpay will be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Because McKnight has since been recalled and thereafter discharged
for cause, we shall not order his reinstatement but shall direct that
backpay be awarded to the date of his recall.
'GA. P. W Products Co., Inc, 137 NLRB 25
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Burnup and Sims, Inc., is engaged in, and during all times
material was engaged in , commerce or in a business affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
2. Local Union No. 172, Airlines Supply Technicians, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Robert J. Davis, Joseph H. Harmon, and John P. McKnight,
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) and (1) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, Respond-
ent 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 commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Burnup and Sims,
Inc., West Palm Beach, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Laying off, discharging, or otherwise discriminating against
its employees for engaging in concerted activities for their mutual aid
or protection.
(b) Discouraging membership in Local Union No. 172, Airlines
Supply Technicians, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization of its employees, by discharging employ-
ees or otherwise discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectiveliy through a
representative 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 or all of such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
BURNUP AND SIMS, INC. 775
(a) Offer to Robert J. Davis and Joseph H. Harmon immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges
and make whole said employees, and John P. McKnight, for any loss
of pay they may have suffered by reason of the discrimination against
them in the manner set forth in the section above entitled "The
Remedy."
(b) Post at its offices and plants in Melbourne, Eau Gallie, and
Cocoa, Florida, copies of the notice attached hereto marked "Appen-
dix." 18 Copies of said notice to be furnished by the Regional Director
for the Twelfth Region, shall, after being duly signed by Respond-
ent's authorized representative, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records and reports necessary to determine the amounts of
backpay due under the terms of this Order.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
30 In the event that this Order is enforced by a decree of a United States Court of
Appals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT lay off, discharge, or otherwise discriminate
against our employees for engaging in concerted activities for
their mutual aid or protection.
WE WILL NOT discourage membership in Local Union No. 172,
Airlines Supply Technicians, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help-
ers of America, or in any other labor organization of our em-
ployees, by discharging our employees or otherwise discriminat-
ing in regard to their hire or tenure of employment or the terms
or conditions of employment.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Robert J. Davis and Joseph H. Harmon im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, and we will make them and John P.
McKnight whole for any loss of pay suffered as a result of the
discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection or to
refrain from any or all such activities.
BURNUP AND SIMS, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Ross Building, 112 East Cass Street, Tampa 2, Florida, Tele-
phone Number 223-4623, if they have any questions concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
Upon the basis of a charge filed October 3, 1961, a complaint in this matter issued
on November 8, 1961, alleging violations of Section 8(a)(1) and (3) of the Na
tional Labor Relations Act, as amended, herein called the Act. The complaint is
predicated on the discharge of three individuals (Robert J. Davis, Joseph H. Harmon,
and John P. McKnight). On or about November 16, 1961, Burnup and Sims, Inc.,'
Respondent herein, filed an answer denying that it had engaged in the unfair labor
practices alleged. A hearing on the issues thus framed was held before me, Albert
P. Wheatley, the duly designated Trial Examiner, in Cocoa Beach, Florida, on Decem-
ber 12, 13, and 14, 1961. At the close of the hearing the parties waived oral argu-
ment and announced intentions to file briefs. Thereafter, on January 22, 1962, Re-
spondent filed a brief which I have considered in the preparation of this report.
No other briefs have been filed.
Upon the entire record and observations of witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS INVOLVED
Respondent maintains its principal office in West Palm Beach, Florida, and plants
in Melbourne, Eau Gallie, and Cocoa, Florida, where it is engaged in the manu-
facture, sale, and installation of concrete, concrete blocks, ready-mixed concrete, and
other related products.
Respondent admits that during the last 12 months it purchased and received goods
and materials valued in excess of $50,000 directly from outside the State of Florida,
and that during the same period it performed services valued in excess of $50,000
I The name appears as amended at the hearing
BURNUP AND SIMS, INC. 777
directly for an employer who is in turn an instrumentality of commerce and engaged
in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
Upon the basis of the foregoing facts, I find and conclude that Respondent is en-
gaged in commerce or in a business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Local Union No. 172, Airline Supply Technicians, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
III. FACTS
Following the close of work on September 20, 1961, approximately 19 of the
employees at Respondent's Melbourne plant (mostly truckdrivers) held a meeting
in the vicinity of the plant and discussed wages At this meeting, it was decided
that the employees would seek a 15-cent per hour wage increase the next day and that
Robert J. Davis would act as spokesman for the employees.
The next morning, September 21, X1961, the employees assembled at the Melbourne
plant and awaited the arrival of company officials. Doyle Tawney, the plant super-
intendent, was the first official to arrive and upon his arrival he inquired as to what
was going on. In response to Tawney's request for someone to speak for the group,
Robert J. Davis presented a demand for pay increases of 15 cents per hour. After
explaining that business at the time would not justify such an increase and indicating
that other changes might be necessary to give one, Tawney left the group. Shortly
thereafter, Carl Moritz, manager of the Melbourne plant, arrived and, upon being
advised of the situation by Tawney, requested that the men be assembled in the
warehouse a short distance away. A meeting in the warehouse took place immedi-
ately ,thereafter.
At the meeting in the warehouse (on September 21, 1961) Davis again acted as
spokesman for the employees and again sought a,15-cent per hour increase. There
is conflicting evidence as to whether at this time Joseph H. Harmon singled himself
out as being aligned with Davis.z On the basis of observations of witnesses and
analysis of the entire record, I believe and find that Harmon did conspicuously align
himself with Davis. Davis and Moritz discussed this wage increase demand but the
meeting ended without the parties coming to an agreement. At the conclusion of
the meeting Moritz asked the employees to return to work, but the employees did
not do so. Instead they assembled in an area in front of the warehouse and continued
to discuss the matter. While the employees were talking among themselves in the
area in front of the warehouse, Davis and McKnight left Respondent's premises and
attempted to contact a union representative. The attempt was not successful and
Davis and McKnight then returned to Respondent's premises. Moritz was addressing
the employees who were still assembled in the area in front of the warehouse. In
Davis' absence several employees, including Harmon, asked questions concerning
wage increases. When Davis and McKnight arrived, Davis again took the leading
part in trying to get wage increases. Shortly thereafter the men returned to work
after being assured by Moritz that wage increases would be forthcoming within 30
days. That evening Moritz asked McKnight "Johnny would you have gone through
with what you started this morning?" McKnight responded by asking Moritz if he
(Moritz) meant the walkout and Moritz said "Yes." McKnight then told Moritz,
"Yes, my father told me once I made my play to follow it through and I had made
my play." 3
The men returned to work about 10 o'clock. By noon that day Moritz had tele-
phoned Respondent's office in West Palm Beach and reported to Respondent's presi-
dent, Russell J. Burnup, the events outlined above. Russell Burnup told Moritz he
2 Davis, Harmon, and McKnight testified that he did Moritz first testified lie could not
recall whether Harmon stepped out of the group to join Davis. Later he testified that
Harmon did not "take a step" to join Davis. Sherman Franks testified that Davis was
the spokesman for the employee group and
Q Was anyone else standing up with him when they talked with Mr. Moritz in the
warehouse'?
A. All of us were standing there
Franks was not asked specifically whether Harmon was conspicuous at this meeting.
8 Moritz did not recall McKnight making reference to his father but did testify that
McKnight gave an affirmative answer to his (Moritz') question
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Burnup ) would consider the matter and advise him (Moritz ) what he "should
do about the situation ." By letter dated September 22, 1961 , Russell Burnup advised
Moritz:
DEAR CARL: Certainly was surprised and somewhat concerned by the report
of the incident this a.m., that your drivers had staged a mass walk-out.
It is our understanding that they have requested a general increase of 15¢
per hour for all drivers . We feel this demand is exorbitant , but if necessary, we
believe it advisable that you use your own discretion in regard to the matter.
May we also call your attention to the fact that under such circumstances your
operation will not be subject to making the necessary profit, and as a result it
will probably be necessary that you give consideration to cutting down man-
power.
Please make it clearly understood among the employees that a wage increase
merits an improvement in cooperation on their part . Actually, we do not feel
that you should authorize a general overall 15¢ per hour wage increase, as all
employees do not have the same qualifications and capabilities . However, as
you are on the ground floor, and are fully familiar with all the phases of this
matter, we will leave it to your discretion.
Very truly yours,
On September 22, 1961, Davis contacted the president and the vice president of the
Union involved herein (Local Union No. 172) and was told to find out whether
a substantial number of employees were interested in Local 172.
On Monday , September 25, 1961 , Moritz informed Tawney that he (Moritz)
was going to grant pay increases ( they were made effective October 1 , 1961), and
that he "would have to figure a way to cut back " 4 and asked Tawney for a list of
employees to be considered for layoff.
On Monday and Tuesday (September 25 and 26, 1961 ), Moritz and Tawney
considered for layoff seven of Respondent 's relatively new employees . (Wills, a
block-truck driver ; Yeager, a ready-mix driver ; Richardson , a warehouseman;
Hensley, a block-truck driver ; Davis, a ready-mix driver ; Harmon, a ready-mix
driver; and McKnight , a sand -truck driver ) .5 They attempted to find a basis of
comparison among a number of junior employees to determine which to lay off.
In considering Wills, Moritz initially favored letting him go, while Tawney
recommended keeping him. It was decided to keep him in spite of his junior status
because he "could really deliver concrete block, was back and forth in a hurry and
did a darn good job delivering them."
Yeager was removed from consideration in spite of Tawney's feeling that he
should go because Moritz felt "sorry for the guy"-he was known by Moritz to be
in serious financial trouble and to be ill with a work-connected infection and to
owe Respondent money.
Moritz initially favored letting Richardson go but deferred to Tawney 's view on
him. Richardson was recognized as part of a productive team in the warehouse,
a department where no decline in business was anticipated , and Tawney did not
want to meddle with it (break up the team ) while they continued to produce.
It was decided to keep Hensley in view of the department in which he worked
and his good work. Hensley drove one of two block trucks in the warehouse. Wills
drove the other.
When considering Davis, it was noted by both Moritz and Tawney that he was
prone to take advantage of opportunities to loaf.
Harmon, an employee who had already been transferred from the block depart-
ment because of his inability to do the work there, was noted as having slowed down
after having worked in the ready -mix department , one of the departments deter-
mined to be overstaffed.
In discussing McKnight it was brought out that he (McKnight) was frequently
observed "standing around the coke room ." An additional consideration in
McKnight's case was that the sand department in which he was working "was not
a profitable thing, it was more an accommodation to the customers than anything
else," and that turning sand orders over to a sand company would eliminate expenses
involved in handling sand . In fact, this "particular chore" was turned "over to a
sand company."
In their consideration of the above -named individuals for layoff Moritz and
Tawney did not discuss the employees ' concerted or union activity or the walkout.
'As noted above the letter authorizing pay increases also instructed Moritz to give
consideration to cutting down of manpower In addition, Respondent at this time was
"at the point of operating with excess personnel due to a slowup in business "
5 Other relatively new employees , employed as laborers, were not considered.
BURNUP AND SIMS, INC. 779
Late on Wednesday, September 27, 1961, Moritz decided to lay off Davis, Harmon,
and McKnight. However, the layoffs were not actually made until September 29,
because Moritz did not get an opportunity to have their final paychecks made up
prior to that date.
The first meeting between union officials and a group of Respondent's employees
took place during the evening of September 28, 1961, at the union hall in Eau
Gallic, Florida. Approximately 15 of Respondent's employees, including Davis
and McKnight, attended this meeting. At the meeting the Union for the first time
obtained signatures to union authorization cards.
The first layoffs took place at the close of the workday on Friday, September 29,
1961. At that time, Moritz summoned Davis and McKnight to his warehouse office.
Tawney, their immediate supervisor, was at this meeting, as was Yvonne Burney,
Respondent's bookkeeper, who works in the warehouse office. After Davis' and
McKnight's arrival, Moritz advised them that because of the cost of the pay raise and
a drop in business he was laying them off. He further stated that if business
picked up, they would be considered for reemployment. At this time, Moritz gave
both employees an extra check to carry them for several days.6
Superintendent Tawney testified that around the middle of October 1961, Lyle
Pate, one of Respondent's mechanics, told him (Tawney) that on the preceding
night Davis and Harmon had come to his (Pate's) house to try to get him to join
the Union and that during the course of the conversation he (Pate) was told "that
if they didn't get their jobs back, if the Union didn't get in, it would be fixed so
no one could work" by dynamiting Respondent's sand silos. Tawney immediately
reported this conversation (the conversation between Tawney and Pate) to Moritz.
After commenting, "well, now we have really got trouble," Moritz contacted Re-
spondent's counsel. On October 25, 1961, following the arrival of Respondent's
counsel at the plant, Pate was interrogated about this matter and gave Respondent
a notarized document stating inter alza-
Towards the end of the talk [on or about October 13, 1961], Davis said: "If
the Union doesn't get in, we're going to use some dynamite to make sure that
those who didn't vote for it won't work either; we'll blow the gravel bin over
and make sure that no one works." Harmon was right there at that time,
but didn't add anything to Davis' statement.
It is noted that Tawney testified that Pate (at the conference where his notarized
statement was drawn) attributed the remarks about dynamiting to Harmon, whereas
the written statement attributes these remarks to Davis. Pate was not called as a
witness in this proceeding.
By letter dated November 8, 1961, Respondent advised Davis and Harmon that:
When you were laid-off on September 29, 1961, it was with the understanding
that business in your particular job was slow and that you would have "first
call" on any job that came available once business picked up.
Business is now picking up, but I regret to advise you that I can not re-employ
you.
It has come to my attention that you made or condoned serious threats to
damage property of the Company should the Union fail to win its election.
Under such circumstances, I can not re-employ you with our company.
Very truly yours,
Neither Davis nor Harmon made any attempt to contact Respondent concerning
the allegations contained in the letter quoted above. At the hearing, herein, Harmon
testified that on October 11, 1961, he called upon Pate at his (Pate's) house and ob-
tained his (Pate's) signature upon a union card. He testified further that this was
the only time he called upon Pate at his home and that at this time he (Harmon)
was alone. Harmon denied that he ever threatened to damage company property
or that he was ever in the presence of anyone who did. Davis denied that he had
ever been to Pate's house, that he threatened "to dynamite some sand silos," and
that Harmon made such a threat in his presence. As noted above, Pate did not
testify herein.
Davis testified that on or about November 17, 1961, he met Walter Burnup, son
of Respondent's president who was in training at the Melbourne plant for a man-
The testimony of the various witnesses concerning this meeting varies with respect to
details, but is in accord concerning substance except that Davis and McKnight deny that
they were told that one of the reasons for the layoff was a drop in business and deny that
they were told that they would be considered for reemployment if things picked up. In
the light of the entire record here and on the basis of observations of witnesses, I do not
credit their denials. I find the facts to be as set forth above
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement position and whose interests are more identifiable with Respondent than
with Respondent's employees, in a bar and they discussed the pros and cons of
unionism. After considerable prompting by the General Counsel, Davis testified
that Burnup indicated he (Davis) had been laid off for leading the walkout. Burnup
testified that he recalled the conversation, that he and Davis argued the relative
merits of unionism, and that during the discussion Davis indicated he (Davis)
thought he had been laid off for leading the walkout and he (Burnup) told Davis
he (Burnup) "didn't think they would let him go for that reason ," although he
(Burnup) thought Davis was wrong in leading the walkout. On the basis of obser-
vations of witnesses and analysis of the record herein, I believe Burnup's version of
this conversation more reliable than that given by Davis and credit Burnup's version.
Upon his return from a delivery at the close of business on September 29, 1961.
Harmon was laid off by Moritz. Moritz told Harmon that a cutback was necessitated
by the cost of the raise and slow business, and that he was being laid off. There is
sharp conflict as to whether Harmon was told he would be considered for reemploy-
ment if business picked up. Harmon testified he inquired about this matter and
was told he would not be considered. Moritz and Tawney, who was present during
the conversation, testified that Harmon was assured that he would be one of the
first to be considered. In the light of the entire record and on the basis of observa-
tions of witnesses, I credit the testimony of Moritz and Tawney concerning this
matter. Harmon also was given an extra check to carry him for several days.
Tawney testified, without contradiction, that approximately 1 month after the
layoffs of September 29 business started to pick up and that he reported this matter
to Moritz and asked for more help. Moritz stated "Well, let's get McKnight."
Tawney thereupon contacted McKnight and made arrangements for him to return
to work for Respondent. Upon his return (on or about November 6, 1961), Mc-
Knight was assigned to drive the sand truck as he had done prior to his layoff. At
the same time he was given a wage increase. The day after his return to work,
Tawney asked McKnight how he and "Jimmy Hoffa" were getting along and said
"I hear you was talking up Union yesterday on your first day back." McKnight told
Tawney he was not talking about the Union on company time and Tawney replied
"Well, I heard you was and I also heard that you thought you were getting [a bad
deal] around here." McKnight admitted that he anticipated a "bad deal," but that
such had not occurred and Tawney then said "If you do, if anybody tries to pull
anything on you, you let me know about it and I'll try to straighten the matter out."
McKnight later acknowledged that "no one picked on" him until he broke the axle
leading to his discharge on November 29, 1961.
On either his first or second day back at work, McKnight broke an axle on the
truck he was driving. No action was taken against him, however, as Dick Burney, the
garage foreman, advised Tawney that the broken axle was probably not McKnight's
fault and that it was probably an unavoidable accident.
On November 29, 1961, McKnight again broke an axle on the truck he was driving.
On this occasion the mechanic, Gregory Lehman, who had gone to the site of the
damaged truck, observed the truck was "bogged down" and buried to the axle hous-
ing and that the tracks in the sand indicated that the truck had been rocked back
and forth in an effort to free it-a direct violation of Respondent's instructions to
its truckdrivers. Lehman conveyed this information to Garage Foreman Burney,
who in turn conveyed it to Superintendent Tawney, who in turn related it to Moritz.
That evening McKnight was summoned to Moritz' office and discharged. He was
told he was being discharged for abuse of equipment. According to McKnight, at
the time of his discharge he claimed the breaking of the axle was not his fault. Moritz
and Tawney testified McKnight did not offer any explanation for the broken axle
Otherwise the various versions of the discharge conversation are substantially the
same. A resolution of this conflict does not appear necessary, and is not made
herein because under all versions McKnight was told he was being discharged for
abuse of equipment.
Conclusions
The General Counsel contends that the terminations of employment of Davis,
Harmon, and McKnight on September 29, 1961, were discriminatory discharges,
that the entire record herein reveals that they were not temporary layoffs-as con-
tended by Respondent-and that the congeries of the evidence reveals that these
terminations were not for the reasons asserted by Respondent-on account of eco-
nomic conditions-but because of the concerted or union activities of Davis, Harmon,
and McKnight.
Apparently, it is the General Counsel's theory that a substantial number of Re-
spondent's employees engaged in a walkout and attempted to organize a union and
that the leaders of this movement were discharged because of this activity.
BURNUP AND SIMS, INC. 781
There is no doubt herein that the walkout did, in fact, take place and that Re-
spondent had knowledge of it. Also, the facts found above reveal that Davis, Har-
mon, and McKnight were "leaders" during this movement and that Respondent was
aware of this fact. Respondent concedes that it was aware of Davis' leadership,
but denies knowledge of the leadership by Harmon and McKnight. The facts found
above belie this position. With regard to union activities as opposed to the con-
certed activity of the walkout, there is no evidence that Respondent was aware of
any such activity prior to September 29, 1961. The record does reveal that through
a report by employee Pate, Respondent was aware of union activity by Davis and
Harmon during October 1961. The record further reveals that after McKnight's
return to work Respondent was aware of his union activity but the same evidence
reveals that Respondent was not disturbed about his union activity so long as it was
not on company time, and that Respondent was anxious that McKnight not suffer
any retaliation because of his participation in the walkout or in union activities.
The only evidence indicating that Respondent bore any animosity toward Davis,
Harmon, and McKnight is the fact that the services of these individuals were ter-
minated while persons with less seniority were retained and the fact that only the
services of these three were terminated. I believe, find, and conclude that this is
not enough to warrant rejection of Respondent's contention that the terminations
on September 29, 1961, were temporary layoffs made on account of economic rea-
sons and that the persons selected for layoff were picked because they had exhibited
a tendency to be noncooperative and Respondent could more readily do without
their services than without the services of those retained.?
The lack of discriminatory motivation in making the layoffs is further substan-
tiated by Respondent's subsequent recall of McKnight on or about November 6, 1961.
See Mississippi Products, Inc., 103 NLRB 1388, 1405. The General Counsel con-
tends, however, that McKnight was reinstated in bad faith. The facts found above
belie this contention. Not only was McKnight given the exact same job which he
had had before the layoff and given the raise which had been instituted in his
absence, but Tawney advised him that in the event of any trouble, he would "try to
straighten the matter out." Had Respondent been out to "get" McKnight, as the
General Counsel contends, by seizing upon the first mistake which he made,
Respondent would not have had to wait the month out. McKnight gave Respondent
an opportunity on his first or second day back when he broke an axle. Respondent
gave him the benefit of the doubt and took no action. The General Counsel con-
tends further that McKnight's subsequent discharge was discriminatorily motivated
but here again the facts found belie this contention. The record reveals that con-
trary to instructions McKnight "bulldozed" his truck rather than call for help and
in doing so broke an axle and that he was discharged for this abuse of equipment.
As noted above, Respondent, relying upon a report from employee Pate that
Davis and Harmon had engaged in postlayoff conduct of a disloyal nature-a report
that Davis and/or Harmon had threatened to damage company property-in-
formed Davis and Harmon that because of such conduct they thereby forfeited
their right to reinstatement. The General Counsel relying upon the doctrine of
Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, and the evidence that such mis-
conduct did not in fact occur, contends that Respondent seized upon Pate's report
to get rid of Davis and Harmon and that this is a pretext situation indicating that
the September 29, 1961, terminations were not for the reasons assigned by the
Respondent. There is no contention herein that, assuming that the September 29,
1961, layoffs were not unlawful, the letter to Davis and Harmon dated November 8,
1961 (quoted above), converted the layoffs to unlawful discharges as of Novem-
ber 8, 1961.
Leaving aside for the moment the question of whether Davis and Harmon actually
made the statements or engaged in the conduct attributed to them, the record reveals
that Respondent had an honest belief that they had engaged in misconduct Assum-
ing that Davis and Harmon did not in fact engage in misconduct, the evidence ad-
duced is nevertheless insufficient to establish, by inference or otherwise, that Respond-
ent was out to get them because of their concerted or union activities. Of course,
Pate's report to Respondent revealed, in addition to the alleged misconduct, that at
the time Davis and Harmon were engaging in activity protected by the Act-were
seeking Pate's signature to a union card-but there is no evidence that Respondent
resented this activity. As previously noted, the only indication that Respondent bore
any animosity toward the individuals involved herein is the fact that they and only
4 The evidence adduced is not sufficient to warrant a finding that in considering specific
individuals for layoff Respondent deliberately attempted to find reasons to terminate
Davis, Harmon, and McKnight
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were terminated. Also, as previously noted, when McKnight was reinstated
Respondent indicated a lack of resentment against union activity so long as it was
carried on properly. Under these circumstances, it is believed that the Rubin Bros.
doctrine is not applicable. Accordingly, I reject the General Counsel's contention.
CONCLUSIONS OF LAW
1. Burnup and Sims, Inc., is engaged in, and during all times material was engaged
in, commerce or in a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 172, Airline Supply Technicians, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent did not discriminate against Robert J. Davis, Joseph H. Harmon,
and John P. McKnight in violation of Section 8(a)(1) and (3) of the Act, as alleged
in the complaint herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that the complaint in this matter be
dismissed in its entirety.
Portland Stereotypers ' and Electrotypers ' Union No. 48 and
International Stereotypers ' and Electrotypers ' Union of North
America, AFL-CIO and Journal Publishing Co. and Oregonian
Publishing Co. Case No. 36-CB-244. June 05, 1962
DECISION AND ORDER
On October 18, 1960, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondents, the
Charging Parties, and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs. On April 17, 1961, the
Supreme Court of the United States issued its decisions in N.L.R.B. v.
News Syndicate Company, Inc., and other cases involving matters
possibly relevant to this case,' and thereafter the Respondents and the
Charging Parties filed supplemental briefs in the light of those
decisions 2
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 Inter-
1 N L R.B. v. News Syndicate Company, Inc. and New York Mailers' Union No. 6, Inter-
national Typographical Union, AFL-CIO, 365 U.S. 695; Local 60, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, et al. (Mechanical Handling Systems) v.
NL.R.B., 365 U.S. 651; Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B.,
365 U S. 667; International Typographical Union, AFL-CIO (Haverhill Gazette) v.
N.L.R.B., 365 U S. 705.
2 The Respondents' request for oral argument is denied as, in the opinion of the Board,
the record, Including the exceptions and briefs, adequately presents the contentions and
the positions of the parties.
137 NLRB No. 97.