J.R. Simplot Co.

National Labor Relations Board - Board Decisions

Jul 23, 1962

137 N.L.R.B. 1552 (N.L.R.B. 1962)

1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board directed that the Regional Director for the Twelfth
Region shall, within 10 days from the date of this Decision, open and
count the ballots of all the voters listed in Appendix B of the Regional
Director's second supplemental report on challenged ballots and James
R. Key, Ernest Roberts, Harold Byrd, Otho Mathis, Woodrow Wilson,
Wyman Davis, Lester Cumbest, David L. Green, Archie Holley, James
English, and Charles Baggett, the challenges to which have been over-
ruled herein, and serve upon the parties a revised tally of ballots, and
issue certification.
[The Board ordered that, if the revised tally of ballots indicates that
the two remaining unresolved challenges are sufficient in number to
affect the results of the election, the Regional Director shall schedule
a hearing before a hearing officer to resolve the issues raised by the
challenges to the ballots of Harold Wallington and Frank Howard.
[The Board further ordered that the hearing officer designated for
the purpose of conducting such hearing, serve upon the parties a re-
port containing resolutions of the credibility of witnesses, findings of
fact, and recommendations to the Board as to the disposition of the
challenged ballots. Within 10 days from the date of the issuance of
such report, any party may file with the Board in Washington, D.C.,
an original and six copies of exceptions thereto. Immediately upon
the filing of such exceptions, the party filing the same shall serve a
copy upon the other party, and shall file a copy with the Regional Di-
rector. If no exceptions are filed, the Board will adopt the recom-
mendations of the hearing officer.
[The Board further directed that the above-entitled matter be re-
ferred to the Regional Director for the Twelfth Region for further
proceedings consistent with this Decision and Direction.]
J. R. Simplot Company Food Processing Division and Teamsters
Food Processing Employees Union , Local 897. Case No. 19-CA-
2326. July 23, 1962
DECISION AND ORDER
On April 5, 1962, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices and
recommending that the complaint herein be dismissed, as set forth
in the attached Intermediate Report. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a brief in
support thereof and the Respondent filed a reply brief in support of
the Intermediate Report.
137 NLRB No. 177.
J. R. SIMPLOT COMPANY FOOD PROCESSING DIVISION 1553
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 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except to the extent modified
herein.
1. The Trial Examiner found that Respondent's no-solicitation rule,
in its total aspects, permitted employees to engage in union activities
during their nonworking time and, therefore, is valid. We disagree.
In a recent case,' we found that a no-solicitation rule stated in the
same words 2 was unlawful because it applied to nonworking time as
well as to working time. The Trial Examiner apparently considered
that a temporary bulletin board notice, admittedly removed 7 months
before the instant discharge, modified the broad no-solicitation rule
so as to make it apply only to working time. Assuming, without
deciding, that the notice when posted was sufficient to modify the rule,
we find, in the circumstances of this case, that once it was removed
from the bulletin board it could no longer have any such effect. In
this regard we note that one of the Respondent's own employee
witnesses had no knowledge of the alleged modification. Moreover,
the Respondent, in its brief to the Board, concedes that the rule as
stated covers nonworking time but argues that the rule is valid be-
cause it permits solicitation on nonworking time, if authorized, and
such solicitation has always been authorized. This position proceeds
on an erroneous assumption that an employer can predicate the exer-
cise of a Section 7 right upon its own authorization. Accordingly, as
there has been no showing of circumstances requiring such a rule
in order to maintain production and/or discipline, we find that the
rule violates Section 8 (a) (1) of the Act.3
2. We agree with the Trial Examiner that George Olson was dis-
charged for cause. The credited evidence establishes that Olson had
been wandering from his work station and disturbing other employees
who complained to his foreman that he interfered with the perform-
ance of their duties by his constant talking about the Union and his
farm animals. The record also shows that Olson had been warned
about talking too much on the job, and, indeed, had received an offi-
cial warning notice to this effect in December 1960. As the Board
Idaho Potato Processors, Inc., 137 NLRB 910.
2 The rule in both cases is, "No solicitation or petitions unless authorized
See also Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (CA 5) ;
Republic Aviation Corporation v Al L R B., 324 U.S 793.
649356-63-vo1. 137-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has previously held, disturbing fellow employees to the point where
their work is affected is just cause for a discharge.' Accordingly, we
find merit in the Respondent's contention that Olson was discharged
for disturbing other employees during working time.
In view of the fact that the Respondent, in another case, has entered
into a formal settlement by which it agreed, inter alia, to rescind
or revise the unlawful no-solicitation rule,' and Respondent has been
found not to have violated the Act as alleged in any other respect,
the complaint shall be dismissed in its entirety.
[The Board dismissed the complaint.]
4 Midwestern Instruments , Inc., 131 NLRB 1026.
5 J R. Simplot Company, Food Processing Division and Local No. 298, American Federa-
tion of Grain Millers, AFL-CIO, Case No 19-CA-2296 (not published in NLRB volumes).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The unfair labor practice charge on which the complaint herein is based, was filed
on October 25, 1961, and the complaint was issued December 8, 1961.
This case was heard by Trial Examiner Phil Saunders at Burley, Idaho, on Janu-
ary 24, 1962. The General Counsel and J. R. Simplot Company Food Processing
Division, herein called the Respondent or the Company, were represented by counsel
and all parties participated fully in the hearing. The Respondent submitted a brief,
and it has been duly considered by me in arriving at my findings and recommenda-
tions herein.
It is alleged in the complaint that from on or about October 15, 1961, the Re-
spondent has enforced the following no-solicitation rule, "Rule 13: No solicitation
or petitions unless authorized," so as to prohibit solicitation for the Union on the
Respondent's property during employees' nonworking time, and also prohibiting even
expressions of an opinion by employees upon the merits of engaging in concerted
activity.
It is also alleged in the complaint that on or about October 16, 1961, the Respondent
discharged employee George Olson and refused to reinstate him, because of his activi-
ties on behalf of the Union. All of such conduct being alleged to be in violation of
Section 8(a) (1) and (3) of the Act.
The Company by answer denied the allegation of unfair labor practices alleged
in the complaint. Reserved rulings are in accordance with my findings herein.
CLARIFYING BACKGROUND
It is admitted that on October 16, 1961, the Respondent discharged employee
George Olson.
During the course of the hearing it was established that Delmar Dorsey, Donald
Nordmeyer, Bill Daniels, and Halling are supervisors as defined in the Act.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Since the allegations of the complaint in this case of the facts upon which the
jurisdiction of the Board is predicated are admitted in the answer, I find that the Re-
spondent is engaged in the operations of potato processing plant at three locations
in Idaho, including the one at Heyburn, Idaho, and which is alone involved in this
proceeding. During the past year, the Respondent shipped products from its Idaho
plants directly to customers located outside the State of Idaho in an amount exceeding
$500,000.
I find, therefore, that the Respondent is engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and (7) of the Act, as amended, and
that it will effectuate the policies of the Act to assert jurisdiction over the Respondent.
J. R. SIMPLOT COMPANY FOOD PROCESSING DIVISION 1555
II THE LABOR ORGANIZATION INVOLVED
Teamsters Food Processing Employees Union, Local 897, herein called the Union,
is a labor organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The basic issues involved in this case are the following:
(1) Whether or not the Respondent's rule 13 prohibits union activity on company
premises by its employees at all times or whether such prohibition is restricted only
to employees' working time
(2) Whether or not the Respondent discharged its employee George Olson be-
cause of union activity or for good cause.
.The Company admits that rule 13 was in effect at the Respondent's plant on Oc-
tober 16, 1961,' but contends that under this rule, as modified, the employees at its
Heyburn plant were permitted to perform union activities during nonworking time.
The Company also admits that it discharged George Olson on October 16, as afore-
stated, but contends that the termination arose entirely out of Olson's violation of
rule 13 in that he solicited and "bothered" other employees while they were perform-
ing their working assignments.
B The testimony
The record reveals that the alleged discriminatee , Olson, at the time in question,
was employed on the midnight shift .2 Olson worked on the "dry line" at the plant,
and his duties were those of a general cleanup man, and occasionally he would re-
lieve the sack holders on the packaging line 3
On direct examination Olson testified that he was familiar with rule 13 , but had
never been informed of any modification . Olson further stated on direct that he
would talk a "little" about the Union during break and lunch periods , and that on
these occasions he merely would invite those employees who were interested to read
some of the union contracts in other plants.4
Olson stated that on October 16 he was asked into the plant office, and that he was
then informed by Supervisor Nordmeyer of his discharge , and was also told by
Nordmeyer that he had "been talking union too much on the job ." A company ter-
mination slip was then filled out and Olson signed the same.5 Olson further testified
that he later returned to the plant on the 16th to pick up his check, and that in doing
so he had conversations with Supervisors Halling and Daniels. According to Olson's
testimony Hailing then noticed his termination slip and told Olson , "Oh, for hell
sakes, why couldn 't they have figured out something else." Olson further testified
that he had then inquired of Supervisor Daniels if he could do anything about his
termination slip, and that Daniels stated to Olson, "Gee whiz, why couldn 't they have
got something else." 6
Supervisor Dorsey, who was Olson 's immediate foreman on the dry line, testified
that "pretty near" every night Olson would wander away from his job, and was
stopping and interfering with other employees in getting their work done properly.
Dorsey stated that employees Halburt, Holland, and McKeeth had informed him that
Olson would "corner" them while they were working , and talk about the Union and
his "goats" and "cows." Dorsey also testified that Halburt registered a complaint
with him almost every night about Olson ,7 that he caught Olson about every night
talking to Halburt while he was on the "bagger," and Dorsey stated that he had
warned Olson not to talk to employees about union activity on company time.
1 All dates are 1961 unless specifically stated otherwise
s Olson worked from midnight until 8 am, and Olson had about 8 months of total
employment with the Company.
J The Heyburn plant of the Respondent's operation is a french-fried potato food-processing
plant
' Olson stated that he joined the Union in the fall of 1961, and that he attended a few
meetings, but other than the above engaged in "no particular activity."
5 The company termination slip stated that Olson was discharged for talking union on
the job, and that other employees had complained about it.
° Other aspects of Olson's testimony will follow in subsequent portions of this report
It was established that Halburt was a "bagger roan" on the dry line operations.
Dorsey testified that Holland's duties were to make certain the dryers were running
properly, and that frequent tests were made on the products to keep them in grade at
all times
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Dorsey further testified that rule 13 prohibits employees from solicitation
during working hours, but that he never attempted to enforce this rule so as to
prevent employees from union solicitation during breaks, lunch hour , or before or
after work . Dorsey also testified that a notice to employees had been posted on
the plant bulletin board , and that he had observed this notice on the company
bulletin board in the latter part of 1960.8 Dorsey stated that in enforcing the notice
in question he never attempted to prevent union solicitation . Dorsey testified that
Olson knew about the notice, and that on one occasion when Olson had a "paper" in
the plant Dorsey had mentioned the bulletin board notice to him . Dorsey also
stated that Olson had no duties around the bagger man, and that on one night he had
to look for Olson for a whole hour and that he was nowhere in the plant. Dorsey
testified that on the night of October 16 he had caught Olson partially asleep, and
also observed him talking to Halburt who was behind on his bagger machine, and
since Olson had been previously warned it was decided to discharge him.
Supervisor Nordmeyer testified that he had received complaints through Dorsey to
the effect that Olson was bothering other employees by talking to them during work-
ing time so that they could not perform their required duties. Nordmeyer stated
that he had also watched Olson and had seen him talking to different employees,
.and that Olson had been warned not to do so .9 Nordmeyer testified that the Com-
pany never attempted to prevent union solicitation during break periods or at lunch-
time . As to the notice on the company bulletin board , as aforestated , Nordmeyer
testified that it was posted during the last part of September or first of October, that
the notice had never been rescinded , and each shift was instructed as to its con-
tents, and in doing so employees were told that they could solicit during the lunch
hours, breaks, and before work , but that they could not do so during worktime.
Personnel Director Daniels testified that rule 13 is a broad policy concerning
solicitation and petitioning on company premises . Daniels stated that this rule does
not permit any general fund raising campaigns and political electioneering, or any
"things" of this type that tend to upset productivity and interfere with the discipline
of the production line, and that the rule was adopted when the Company first began
its operations at the Heyburn plant in May 1960.10 As to the application of rule 13
in its relationship to union solicitation , Daniels testified that employees were re-
stricted from such activity during working time, but that there were no restrictions
on the same during the break periods or at lunchtime. The Respondent 's personnel
director stated that employees were also advised that union efforts were permitted at
breaks and at lunch by the notice posted on the company bulletin board, and by
word of mouth passed on by the Respondent 's supervisors , and stated that rule 13
was therein modified to permit union activity during nonworking time. Daniels
further testified that along in August 1961 , the Company issued a document en-
titled "A Guide for Supervisory Personnel in Labor Relations ," and stated, that
while the document was not posted so the employees could read it, workers were
advised of the four basic general rules therein by Plant Manager Hansen and through
letters 11 As to Olson talking to Daniels about his termination slip, Daniels stated
8 The Company contends that the notice referred to above modified rule 13. The notice
stated the following:
In order to preserve efficiency and discipline in our company operations , the follow-
ing rules have been adopted by the J . R. Simplot Company:
(1) The employees of the J. R Simplot Company will not be permitted to solicit
union membership , distribute union literature , newspapers or bulletins , or con-
duct electioneering activities while they are in pay status on the plant property
(2) Non -employee union representatives will not be permitted , at any time, to
solicit union membership , distribute union literature, newspapers or bulletins, or
conduct electioneering activities while on plant property.
(3) No one will be permitted to distribute scurrilous , or defamatory informa-
tion, bulletins , or articles about the officers, managers , or supervisors of the
J. R Simplot Company on any of the property owned by the J. R Simplot
Company.
E See Respondent ' s Exhibit No . 3 wherein Olson received a warning notice dated Decem-
ber 14, 1960.
10 Daniels testified that the above policy had had uniformity in the plant with the single
exception of permitting "bloodmobile" solicitations
11 See Respondent ' s Exhibit No 5 This exhibit contains three main headings : ( 1) "Four
basic general rules," (2) "Things that supervisory personnel may do," and (3) "Things
that supervisory personnel may not do " It is noted that in the heading "Things that
supervisory personnel may do ," contained in subparagraph h, is the instruction to "stop
any union activities by employees during working hours."
J. R. SIMPLOT COMPANY FOOD PROCESSING DIVISION 1557
that Olson had merely inquired as to what had happened and if Daniels had read
the slip.
Paul Hansen, Respondent's manager of the Heyburn plant, testified that rule 13
was a carryover policy since 1951 from older plants of the Company, that there
never was a time that the Respondent did not authorize union solicitation during
nonworking hours, and Hansen further stated that the policy permitting solicitation
on nonworking time was verbally communicated to employees through plant super-
visors, and also by the notice on the company bulletin board.
Employee Halburt testified that Olson talked to him about his goats, cows, and
union activities, and that as a result Halburt could not keep up with his job and
eventually got behind in his work. Halburt stated that Olson would talk to him
almost every night, and that he would do so while Halburt was on his job as the
bagger on the dry line. Halburt also testified that he made complaints on Olson to
Foreman Dorsey and also informed Supervisor Nordmeyer about it. Halburt fur-
ther stated that he had observed employees talking "union" during break periods and
at lunch, and that the Company did nothing to prevent such activity.
Larry Holland testified that while he was at his work station Olson would talk
to him about his personal affairs and the Union. Claudine McKeeth, a laboratory
technician, testified that on several occasions Olson talked to her about the Union, and
that he would usually do so when she was required to go out and take samples of the
product at the dry line to ascertain if it met certain tests and standards. McKeeth
stated that if she would have listened to Olson on these occasions, his conversations
would have interfered with her duties. McKeeth also informed Dorsey about Olson's
conversations with her. McKeeth further testified that she had observed other em-
ployees talking about union matters during breaks and lunch periods, and that the
Company did nothing to prohibit this activity.
On cross-examination alleged discriminatee Olson stated that he thought there
was a bulletin stating no union talk during working time. As to union activities by
employees during break periods, Olson testified that he could not specifically re-
member any action by the Company to stop such activities, but recalled that nobody
dared "to do it" if there was a foreman around. On cross-examination Olson went
on to state that he never did any soliciting while on his working time, that the only
"union talking" he did was during break periods, and explained that during break
periods and lunchtime he was not on pay period so that under the bulletin union
solicitation was then permitted.
On rebuttal Olson testified that prior to October 16 he had never been reprimanded,
stated that before the date of this hearing he had never seen the company notice posted
on the bulletin board nor was it explained by any supervisor, and that in performing
his duties at the plant it was necessary for him, at numerous times, to be away from
the dry line. Olson denied that he discussed union matters with employees Holland
or McKeeth on working time, but admitted that he did converse with Halburt while
the two of them were working together on "bags," and that in so doing he expressed
his opinion as to union matters. Olson further admitted that he and Halburt were
the only two employees on the shift that did any talking, but stated that the con-
versations in no way interfered with the work.12
C. Conclusions
It is well-settled law, by both the Board and the courts, that the Act does not pre-
vent an employer from making and enforcing reasonable rules governing the conduct
of employees on company time. Working time is for work. It is therefore within
the province of an employer to promulgate and enforce a rule prohibiting union
solicitation during working hours. Such a rule must be presumed to be valid in the
absence of evidence that it was adopted for a discriminatory purpose.
In this record there is clearly lacking a preponderance of evidence to support a
finding that rule 13 has been enforced to prohibit employees from union solicitation,
or other concerted activity, on their nonworking time. The company notice or bul-
letin posted on the plant bulletin board regarding the union activities of employees
specifically stated, "In pay status." 13 Moreover, what is even more convincing in
showing that there was no restrictions during break periods, is the admissions of
alleged discriminatee Olson himself. Olson admitted that employees would discuss
union matters during break periods in the plant cafeteria, and that this type of
activity went on for several weeks. Furthermore, there is no credited testimony
"Olson admitted that in 1946 he had been convicted of a felony-grand larceny-but
testified that he has had no difficulty with the law since then.
Is The record establishes without question , that "pay status" referred to only produc-
tion time, or when employees were actually at their work stations.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whatsoever that the Company in any way interfered with such discussions or solici-
tations. Olson also admitted that with the posting of the notice or bulletin, as afore-
stated, he was led to believe that employees could engage in union conversations
during break periods and at lunch, and then further agreed that this was his under-
standing of the Company's rule in regard to solicitation.
From this record it appears to me that the Respondent has made it clear to its
employees that rule 13, from the standpoint of union activities, was not to be applied
to prohibit such activities by its employees during their nonworking time, but rather
should only be enforced to prevent such activities during its employees' working time
The admitted and credited evidence indicates that. the Respondent. has at no time
attempted under rule 13, to prohibit its employees from performing union activities
on company premises during their nonworking time.
Having found that rule 13, in its total aspects, permitted employees to engage in
union activities during their free periods and is, therefore, a valid policy, I will not
consider whether or not Olson violated the rule in respect to working time, and
thereby was discharged for cause as alleged by the Respondent. Again, it is well-
settled law that working time is for work, and an employer may discipline an employee
for solicitation or engaging in any other personal activity when he is on the job.
And, in the absence of substantial proof of discriminatory departure from a rule or
custom, an employer can discharge an employee for doing something other than
working while on the job.
In the first instance here there is no contention or evidence that Olson was the
instigator or leader in the Union's efforts to organize the Respondent's Heyburn
plant. Olson testified that he did sign with the Union and attended a few meetings,
but stated that otherwise he engaged in "no particular activity."
Secondly, it appears to me that the Company was not motivated by a desire to
discriminate against Olson, because of the fact that rule 13 was adopted for valid
reasons. There is credible testimony in this record that the rule preventing union
solicitation during working hours was necessary in order to maintain production,
insure discipline on the production line, for the purpose of uniformity, and to make
certain the proper quality of merchandise. In addition there is no reliable testimony
that rule 13 was adopted at the time that union activity began, but rather the record
shows that it was adopted as of the time that the plant first had a working force as a
carryover from other operations of the Company, and that the rule had been in effect
in other operations of the Company as early as 1951.
In light of the above the only remaining element for determination here is whether
Olson did solicit on working time. In the final analysis Olson's own admissions
conclusively show that he did. On direct examination Olson expressly denied that he
did any soliciting for the Union during working time. However, as a rebuttal witness
Olson then admitted that he had talked to employee Halburt while both were on the
job, and in so doing expressed his opinion as to the Union. Olson also admitted that
he and Halburt were the only two employees on the night shift doing any talking.
Upon the admissions by Olson I find that employee Halburt credibly testified as to
the incidents in question, and that Olson did engage in solicitations during working
time in violation of a valid company rule.
Moreover, to believe Olson under these circumstances with an open plea of guilt
as to Halburt, I would then have to find that testimony by Respondent's witnesses,
Dorsey, Holland, Nordmeyer, and McKeeth, was all a fabrication A careful exami-
nation of this testimony reveals that the accounts given by these witnesses were all
consistent in themselves, and remained so under skillful cross-examination by the
General Counsel.14
The credited testimony in this record also reveals that supervisors did not act
hastily to discharge Olson when they were told of his union activities during working
time. Rather they investigated the complaints and gave warnings to Olson. Even
the written warning notice given to Olson in December 1960 stated that he was
talking too much, and that he should spend this time at his work station. Olson
did not join the Union involved herein until the fall of 1961. In the termination slip
given to Olson on October 16, the reason therein given for the discharge was talking
union on the job, and other employees complaining The termination slip was duly
signed by Olson, and from this proceeding it appears to me that the reason given
14 In addition to the above discrepancy in Olson's testimony as regard to Halburt, it is
also noted that Olson first testified that he was never Informed of any modification of
rule 13 (the notice posted on the bulletin board). Later in his testimony Olson admitted
seeing a bulletin on the bulletin board to the effect that there would be no union dis-
cussions during working time. Olson also testified that he had never been reprimanded.
The record discloses that on December 14, 1960, the Company issued a warning notice on
Olson. See Respondent's Exhibit No. 3.
WALSH AND KELLY 1559
for his termination was with complete justification , and unquestionably supported by
the credited evidence in this record.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is recommended that the complaint herein be dismissed.
Walsh and Kelly and Earl Whitworth
International Union of Operating Engineers, Local Union x$150
[Walsh and Kelly] and Earl Whitworth . Cases Nos. 13-CA-
4450 and 13-CB-1133. July 23, 1962
DECISION AND ORDER
On March 22, 1962, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and are engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent Union filed exceptions to the
Intermediate Report and a supporting brief,' and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Leedom, and Fanning].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. In so doing, we rely upon the following
facts set forth in more detail in the Intermediate Report.
We find, like the Trial Examiner, that the Respondent Employer,
a partnership doing business under the trade name of "Walsh and
Kelly," hereafter called Respondent Company, violated Section
8(a) (3) and (1) of the Act by paying Earl Whitworth a lower
rate of pay per hour than the going rate of pay in the bargaining unit,
because he was not, and is not, a member of Local 150. The Respond-
I The Respondent Union's request for oral argument is hereby denied as the record, ex-
ceptions, and briefs adequately present the issues and positions of the parties.
137 NLRB No. 174.