W. W. Rosebraugh Co.

National Labor Relations Board - Board Decisions

Feb 20, 1945

60 N.L.R.B. 787 (N.L.R.B. 1945)

In the Matter of W. W. ROSEBRAUGII COMPANY and SHEET METAL
WORKERS, No. 181, AFL
Case No. 19-C-1268.-Decided February t0, 1945
DECISION
AND
ORDER
On July 19, 1944, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in, and was engaging in, certain unfair labor practices, and
recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in a copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the-
Intermediate Report and a brief in support of his exceptions. -
The Board has reviewed the rulings on motions and on objections
to the admission of evidence made by the Trial Examiner at the hear-
ing, and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except inso-
far as they are inconsistent with our findings and order hereinafter
set forth.
1. We agree with the Trial Examiner's findings and conclusion that
the respondent engaged in conduct which was violative of Section 8 (1)
of the Act, except that we do not concur in his finding that Super-
intendent Rosebraugh stated to employee O'Brien, during the course
of their conversation in the latter part of October 1943, that the
respondent would rather "close the shop than have a union." While
statements of similar import were made by Rosebraugh to other em-
ployees, the record is not clear that the statement in question was made
to O'Brien. However, it appears from O'Brien's testimony, which we
credit, that what Rosebraugh did say to him was that respondent
would not "sanction a union," and we so find.
2..We agree with the Trial Examiner's findings and conclusion
that the discharge of Gail Ethell was violative of Section 8 (3) of
60 N. L. R. B. No. 135.
787
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act., In addition , we note that Superintendent Rosebraugh tes-
tified that he first considered discharging Ethell when he spoke to
Ethell, in the middle or latter part of September 1943, about produc-
ing more work . However, upon the evidence as a whole, including the
fact that on that occasion Rosebraugh granted Ethell a wage increase,
as well as the fact that Rosebraugh did not impress us as a very
trustworthy witness , we do not credit Rosebraugh 's afore-mentioned
testimony.
3. We agree with the Trial Examiner 's findings and conclusion that
the discharge of James Burton on November 8, 1943, was violative of
Section 8 ( 3) of the Act . While Burton was a poor workman, we do
not believe that his unsatisfactory work was the reason for his dis-
charge. The record discloses that the respondent , through Superin-
tendent Rosebraugh , spoke to Burton on two occasions when he was
performing his work improperly . Rosebraugh testified that while
on the first occasion ( around November 1, 1943 ), he criticized Burton's
poor workmanship , he did not threaten to discharge him, but desired
to' "make a hand" out of him because the respondent was suffering
from a manpower shortage . On the second occasion (November 5 or 6,
1943 ), the conversation between Rosebraugh and Burton related prin-
cipally to matters concerning the Union . The only comment con-
cerning Burton's work which was made on the latter occasion was
Rosebraugh 's statement "I have shifted you around , and I would like
to know where you can work . A man has to like his work to be able
to work." Although this statement could reasonably be construed as
an expression of dissatisfaction with Burton's work , the following cir-
cumstances convince us that it was not Burton's poor workmanship
on that or on prior occasions , but rather the fact that Burton was an
outspoken union protagonist , which prompted his discharge: (1)
At the time of Burton 's dismissal , Rosebraugh indicated to him that
he was being discharged because he did not "fit in" and not because his
1 In finding that the respondent had knowledge , prior to their discharge ,
of the union
activity of Ethell , as well as of Burton , the other dischargee , the Trial Examiner relies, in
part, upon an admission by Rosebraugh that lie "had heard rumors" that these employees
had distributed union application cards The respondent excepts to this finding on the
ground that while Rosebraugh admitted that he had heard such rumors prior to the
hearing, he was not asked whether he had heard them prior to the discharges However,
a finding of knowledge by Rosebraugh , prior to the discharges , of Ethell's and Burton's
interest and activity in the Union , is otherwise adequately supported by the record Thus,
there are the conversations concerning the Union between Rosebraugh ,and Ethell and
Burton shortly prior to their discharge , which are set forth in full in the Intermediate
Report. Also , Ethell had distributed union application cards at the plant to approximately
12 employees , and Burton had spoken to 5 or 6 employees at the plant about joining the
Union.' The plant is a small one , the respondent employing only about 26 to 30 persons:
Rosebraugh is in direct communication with the employees ; and the record discloses that
Rosebraugh interrogated various employees concerning union activities at the plant, and
stated to one of them ( O'Brien ), after the latter told him that he did not know who was
"the cause of the union activity ," that he ( Rosebraugh ) thought that he (Rosebraugh)
knew.
W. W. ROSEBRAUGH COMPANY 789
work was unsatisfactory.' (2) At the time of Burton's discharge,
the respondent was still suffering from a manpower shortage, which
is the reason assigned by Rosebraugh, in connection with the afore-
mentioned incident of November 1, 1943, for wanting to retain Burton
despite his poor workmanship. Nor is it very likely that Rosebraugh's
expressed desire to "make a hand" out of Burton on the last-mentioned
occasion would have been completely altered by reason of one further
manifestation of poor workmanship a few days later. (3) Burton, to
the respondent's knowledge, was actively interested in having the plant
-unionized, and from Rosebraugh's conversation with him concerning
the Union a day or two prior to his discharge, during the course of
which Rosebraugh stated that if the plant were unionized "the party
would break up," it is plain that Rosebraugh resented Burton's forth-
right pro-union declarations. (4) Ethell, another outstanding union
adherent, and a satisfactory workman, was discriminatorily dis-
charged on the same day that Burton was dismissed. (5) The respond-
ent's plain antipathy to the Union, as manifested by his conduct which
we have found violative of Section 8 (1) of the Act, as well as his
discriminatory discharge of Ethell.
Remedy
The record discloses that Burton, sometime subsequent to his dis-
charge, was unable to work for a period of approximately 3 months
because of a confining illness. Accordingly, and consonant with our
usual practice in such cases, we shall not award Burton back pay
for that period.3
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, W. W. Rosebraugh, doing
business as W. W. Rosebraugh Company, Salem, Oregon, and his
agents, successors,'and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Sheet Metal Workers, No. 181,
chartered by the Sheet Metal Workers International Association,
% This finding is based upon the testimony of Burton and Ethell Rosebraugh, while
admitting that he told Burton that he did not "fit in," also testified that he told him that
his work was unsatisfactory The Trial Examiner was not impressed by Rosebraugh's
credibility as a witness, nor are we Burton, on the other hand, while somewhat confused
as to the time certain incidents occurred, appeared to be an honest witness and testified
clearly as to the above incident . Ethell , a credible witness, while stating that he heard
only part of the conversation between Burton and Rosebraugh at the time of Burton's
discharge , testified clearly that he heard Burton ask Rosebraugh "if there was anything
wrong with his work," and beard Rosebraugh reply, "No."
5 Since the record does not disclose the exact date of Burton's illness , we shall leave the
precise period which is to be excluded for determination upon compliance.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with the American Federation of Labor, or in any other
labor organization of his employees, by discharging or refusing to
reinstate any of his employees, or in any other manner discriminating
in regard to their hire or tenure of employment, or any term or
condition of their employment;
(b) In any other manner interfering with, restraining, or coer-
cing his employees in the exercise of the right to self-organization, to
form "labor organizations, to join or assist Sheet Metal Workers,
No. 181, chartered by the Sheet Metal Workers International Associa-
tion, affiliated with the American Federation of Labor, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Gail Ethell and James Burton immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole Gail Ethell for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages from the date on which he was
discharged to the date of the respondent's offer of reinstatement, less
his net earnings during said period;
(c) Make whole James Burton for any loss of pay he may have
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to the amount which he
normally would have earned as wages from the date on which he -
was discharged to the date of the respondent's offer of reinstatement,
excluding the period during which he was unable to work because of
a confining illness ,4 less his net earnings during the period for
which he is to receive back pay;
(d) Post at its plant at Salem, Oregon, copies of the notice at-
tached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Nineteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
4 See footnote 3, supra.
W. W. ROSEBRAUGH COMPANY 791
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
NLRB 577
(9-1-44)
"APPENDIX A"
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, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist SHEET METAL
WORKERS, NO. 181, CHARTERED BY THE SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION,
AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection. _
We will offer to the employees named below immediate and.
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
GAIL ETHELL
JAMES BURTON
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
W. W. ROSEBRAUGH COMPANY
(Employer)
Dated ------------ By ----------------------------
(Representative ) (Title)
Nara.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. GERARD D: REILLY, dissenting :
The decision of the majority approves the Trial Examiner's finding
that the employee, Burton, was discharged because of his union
membership in violation of Section 8 (3). After reviewing the record,
however, I am forced to conclude that his finding with respect to this
employee is contrary to the weight of the evidence and should be set
aside as erroneous. It is true that the dismissed employee was a union
member and that there was evidence that the respondent's super-
intendent was opposed to union organization in the plant. But it
seems to me that these are the only tangible facts upon which the
inference of discrimination with respect to Burton is based, and that
to draw such an inference ignores overwhelming testimony to the
effect that Burton's unsatisfactory work was the immediate cause of
his dismissal.
The testimony of witnesses, both for the Board and the respondent,
shows that Burton was, in fact, a poor workman. He was slow, made
costly errors, and failed to show promise at any of the several opera-
tions on which he worked. The record also discloses that on two
occasions within a week prior to his discharge,-' Burton performed
his work improperly, and that on both occasions the superintendent
indicated to Burton his dissatisfaction with Burton's work. The first
occasion was on or about November 1, 1943, when Burton cut pipe
improperly. The second was on November 5 or 6, 1943, when Burton
performed a hammering operation improperly. Burton was dis-
charged on November S. Rosebraugh, the superintendent, while ad-
mitting that on the first occasion he did not actually threaten to
discharge Burton, testified that he then criticized Burton for his poor
workmanship, and told him, "If you want to work here, watch your
work." Burton admitted that Rosebraugh criticized him at that time.
The fact that Rosebraugh spoke to Burton about the pipe incident
after Burton had requested a wage increase, while of some significance,
would not seem to be of great materiality. As for the second occasion,
the Trial Examiner's comment J. R., p. 8, 11, 52-55) that Rosebraugh
did not criticize Burton at that time cannot be supported. While it
is true that the criticism was not too direct, it seems to - have - been
implicit in their conversation, particularly that portion of it in which
Rosebraugh, according to the latter's uncontradicted testimony which
the Trial Examiner appears to have credited, said to Burton, "I have
shifted you around, and I would like to know where you can work.
A man has to like his work to be able to work." 6 On this state of the
° It will be noted that Burton had been in the respondent 's employ only for about 61/2
weeks prior to his discharge.
° Burton merely denied that Rosebraugh had criticized his work on that occasion. He
was not questioned as to whether Rosebraugh used the language quoted above.
W. W. ROSEBRAUGH COMPANY 793
record, it is obvious that the respondent would have had ample reason
for discharging Burton when it did.
The Trial Examiner 's finding that Burton's unsatisfactory work
was not the motivating cause for the discharge appears to be based
primarily on the fact that on the first occasion mentioned above when
Burton cut pipe improperly , Rosebraugh did not plan to dismiss him
but rather to "make a hand out of him" because the respondent "needed
Wien"; that on the second occasion when Burton 's work was faulty,
Rosebraugh did not criticize him but was still interested in making a
"hand" out of him rather than discharging him; and that there was
no other demonstration of poor workmanship on the part of Burton
between the last-mentioned occasion and the date of his discharge.
While' Rosebraugh himself admitted that on the first occasion he did
not intend to discharge Burton and wanted to "make a hand out of
him," the Trial Examiner's finding that he had a similar frame of
inind on the second occasion is apparently based wholly upon the
nature of the conversation at that time . Yet, while on the latter occa-
sion there was no threat of discharge , Rosebraugh , as previously indi-
cated, plainly expressed his displeasure with Burton's poor workman-
ship when he told him, "I have . shifted you around , and I would like
to know where you can work . A man has to like his work to be able
to work. " The implication in the Intermediate Report seems to be
that if Rosebraugh had discharged Burton on the second occasion
immediately upon discovering that he was not performing the ham-
inering operation properly, the Trial Examine' might not have viewed
the discharge with disfavor. Little, if any , significance can be at-
tached to the fact that the respondent waited 1 day before discharging
Burton, instead of discharging him on the spot .' While it is a sus-
picious circumstance that the respondent discharged Burton and
Ethell, both of whom were active union members, on the same day,
this inference of discriminatory motive is weakened by the fact that
Burton's discharge followed his last dereliction by only 1 day.
The Trial Examiner also relies upon the colloquy between the super-
intendent and Burton when the latter 's employment was terminated.
This event seems to be equally lacking in probative value. According
to Burton 's testimony , which the Trial Examiner credits, Rosebraugh
told him that he was being discharged because he did not "fit in," and
answered in the negative Burton's question as to whether he was being
dismissed for poor workmanship . Rosebraugh denied Burton's testi-
' Since the evidence is not clear as to whether the hammering incident occurred on
November 5 or 6, it would seem that the Board must operate on the theory that it occurred
on November 6, which fell on a Saturday. The conversation between liosebraugh and
Burton took place about an hour before quitting time on that day. The plant was not in
operation on Sunday . Burton was discharged at the close of business on Monday,
November S.
794- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony and stated that he answered that question in the affirmative.
While Rosebraugh's credibility as a witness is not impressive, the
transcript indicates that Burton on the whole was also a rather con-
fused witness. While there was some corroboration of Burton's ver-
sion by the witness, Ethell, who was standing nearby, this would not
appear to be decisive, since Ethell admitted that he had not heard all
of the conversation. In view of the fact that Burton was admittedly
a poor workman, and had been criticized at least twice by Rosebraugh
on this score, it seems far-fetched to believe that he would have an-
swered Burton's question in the negative, particularly if his motive
in discharging him was discriminatory. To conclude from this evi-
dence that Burton's poor work was a mere pretext for his discharge
is at best mere conjecture.
INTERMEDIATE REPORT
Mr. John E. Hedrick, for the Board.
Mr. Rex Kimmell, of Salem, Oreg, for the respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed on January 10, 1944, by Sheet Metal Work-
ers, No. 181, chartered by the Sheet Metal Workers International Association,
affiliated with the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Director
for the Nineteenth Region (Seattle, Washington), issued its complaint dated
March 21, 1944, against W. W. Rosebraugh Company, Salem, Oregon, herein called
the respondent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section
8 (1) and (3), and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint accompanied by
notice of hearing were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance:
(1) that the respondent by and through Frank Rosebraugh, superintendent, from
on or about October 1, 1943, to the date of the issuance of the complaint vilified,
disparaged, and expressed disapproval of the Union, advised employees at the
time of hiring that the respondent operates and will continue to operate on an
"open shop" basis, interrogated employees concerning their union affiliations,
advised employees that they would gain nothing through a union and that the
respondent would not operate with a union, urged, persuaded, and warned em-
ployees not to assist or become members of the Union, and threatened to dis-
continue operations if employees joined or assisted the Union; and (2) that the
respondent on or about November 8, 1943, discharged Gail Ethell and James
Burton , and at all times thereafter refused to reinstate or reemploy them for the
reason that they had assisted or become members of the Union.
On March 31, 1944, the respondent filed an answer, denying the allegations of
the complaint with respect to the business operations of the respondent and also
denying that any of the unfair labor practices alleged in the'complaint had been
committed. -
Pursuant to notice, a hearing was held on April 10, 1944, at Salem, Oregon,
before David Karasick, the undersigned Trial Examiner duly designated by the
W. W. ROSEBRAUGH COMPANY 795
Chief Trial Examiner. The Board and the respondent were each represented
by counsel and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the conclusion of the case, coun-
sel for the respondent moved to dismiss the complaint. Ruling on, said
motion was reserved. The motion is hereby denied. Motions by counsel for
the Board and for the respondent to conform the complaint and the ansyver,
respectively, to the proof, insofar as formal matters were concerned, were granted.
Opportunity for oral argument was afforded the parties at the conclusion of the
hearing Arguments were presented before the undersigned by counsel for the
Board and for, the respondent. The parties were given opportunity to file briefs
with the undersigned. No briefs have been received
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
W. W. Rosebraugh, an individual doing business under the name of W. W.
Rosebraugh Company, maintains his principal office and place of business in
Salem, Oregon, where he is engaged in the manufacture, sale, installation and
service of furnaces, furnace attachments, heating equipment, and tanks. During
the year 1943, the respondent also engaged in the manufacture of parts for hy-
draulic lifts, which manufacturing operations were performed for the Willamette
Hyster Company of Portland, Oregon. During the year 1943, the respondent
purchased raw materials valued at approximately $15,000, of which 90 percent
directly or indirectly was shipped to the respondent's plant in Salem, Oregon,
from places located outside the State of Oregon During the year 1943, the
respondent's gross sales amounted to approximately $80,000, of which 60 percent
constituted the manufacture of parts for hydraulic lifts for the Willamette Hyster
Company, 3 percent of that part of the respondent's business concerned with
the manufacture and sale of furnaces, furnace attachments, heating equipment
and tanks represented sales in which shipment was made to places located outside
the State of Oregon. The respondent admits that he is engaged in commerce
within the meaning of the Act and is subject to the jurisdiction of the Board.
II. THE ORGANIZATION INVOLVED
Sheet Metal Workers, No 181, chartered by the Sheet Metal Workers Inter-
national Association , affiliated with the American Federation of Labor, is a
labor organization which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Efforts of the employees to organize; interference, restraint, and coercion
In October 1943, the respondent's employees became dissatisfied with working
conditions and (luring their lunch period began to discuss the matter of organizing
a union.' In the latter part of October, employees Gail Ethell and James Burton
'Employees were dissatisfied because the respondent 's plant had no ventilation system
and because the floor on which they worked was damp. The plant has a dirt floor which
was sprayed with water on Saturdays in order to keep the dust down. At times, however,
the floor had not become dry on Monday morning and the employees complained because it
was damp and muddy. Nor did the plant have a ventilation system to eliminate the
smoke and gases which arose during welding operations.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought the advice of the business representative of the Union at the latter's
office with respect to the procedure which would be necessary to follow in
initiating self-organization among the employees.
During the latter part of October, according to the testimony of employee
Carl Berg, Frank Rosebraugh, the respondent's son and superintendent of the
plant, approached Berg while he was at work in the shop and asked him what
the ,trouble was ; Berg answered that the employees were of the opinion that they
could straighten out the problem of improved working conditions more quickly
and easily through a union and were talking about the matter ; and Rosebraugh
then stated that the shop had been closed to a union and that "they" wanted it
that way and that the respondent would close the plant if a union came in.
Superintendent Rosebraugh did not deny this testimony of Berg, except that he
generally denied that he had ever said to any employee that the respondent
would close the plant if the Union came in. In giving his version of this con-
versation, Superintendent Rosebraugh testified that he told Berg that he did not
have to go any further than the respondent if he wished to secure any change
in working conditions and that he "didn't need a union." In view of Superin-
tendent Rosebraugh's admission as to the statements he made to Berg and the
testimony in the record as to other anti-union statements which he made to
other employees, the undersigned does not credit his denial that he stated that
the respondent would close the plant if the union came in and.finds that he did
make that statement, as well as the other statements related by Berg, and that
he further told Berg that he did not need a union, as Rosebraugh himself testified.
At about the same time , in the latter part of October, Superintendent Rose-
braugh approached employee Marvin O'Brien during working hours and asked
him if he knew who was the cause of the union activity. O'Brien said that he
did not know. Rosebraugh replied, "I think I do," and stated that the respond-
ent would rather close the shop than have a union.'
On October 27, during working hours in the plant, Superintendent Rosebraugh
asked Ethell what the trouble was, stated that he had known for quite some time
that Ethell had been talking about a union in the shop, declared that there
would not be any union as long as his father was running the plant, and asked
Ethell if he wanted to quit. When Ethell replied that he did not wish to quit
because he was satisfied with his job but that he wanted better working condi-
tions in the plant and was not interested -in whether the employees secured them
through a union or as a result of their own efforts, Superintendent Rosebraugh
answered that the employees could not get any more through a union than they
could secure themselves. Ethell then said that he thought the employees could
secure more benefits through a union and that he intended to go ahead and
organize one.'
2 Superintendent Rosebraugh admitted that he asked O ' Brien whom he had heard talking
about the Union, but denied saying that the respondent would close the plant if the Union
came in. In light of the testimony of employees Ethel ], Burton, and Berg as to the same
statement or statements of similar import made by Superintendent Rosebraugh , the under-
signed does not credit Rosebraugh 's denial and finds that he made the statements attributed
to him by O ' Brien in the manner related by the latter.
2 Superintendent Rosebraugh's version of this conversation was that he asked Ethell if
there was anything with which he was dissatisfied , that Ethell replied that working con-
ditions were not what they should be and that a union would help to improve them, and
that Rosebraugh then answered , "The union is not here , and if you are dissatisfied with
your wok why don 't you tell us about it , or about your working conditions I" He denied
telling Ethell that the respondent would close the plant . In view of Rosebraugh 's admis-
sion that he initiated the conversation with Ethell and suggested that working conditions be
discussed with him rather than with the Union , and in view of the other anti -union state-
ments made by him, as shown herein , the undersigned finds that lie made the statements
on this occasion in the manner related by Ethell.
W. W. ROSEBRAUGH COMPANY '797
On the evening of October 27 or 28, Ethell went to the union hall and secured a
number of membership application cards. A day or two before, Burton went to
the union hall where he signed an application card which he left with the union
representative. Following Ethell's visit to the union's office, he and Burton
spoke to a number of the employees about joining the Union. Thirteen of the
employees, including Ethell and Burton, signed membership application cards
which were given to the union representative.'
On November 5 or 6, Superintendent Rosebraugh approached Burton while the
latter was at work, asked him if he had heard anything about union activities
or any talk about unions, and, when Burton said that he had, stated, "It will
never go union because, if it does, I hate to see the party break up." 6
The undersigned finds that by the interrogation of employee Berg by Super-
intendent Rosebraugh and his statements to Berg that the shop had been closed
to it union and they wanted it that way, that the respondent would close the plant
if a union came in, and that Berg did not need a union; by Superintendent Rose-
braugh's interrogation of employee O'Brien and his statement to O'Brien that
the respondent would rather close the shop than have a union ; by Superintendent
Rosebraugh's interrogation of employee Ethell, his statement to Ethell that
he had known for some time that Ethell was talking about a union, his asking
Ethell if he wished to quit, and his telling Ethell that the employees could not get
any more through a union than they could secure themselves ; by Superintendent
Rosebraugh's interrogation of employee Burton and his statement to Burton
that he "would hate to see the party break up" if the employees should succeed
in forming a union, the respondent interfered with, restrained, and coerced his
employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (1) of the Act.
The complaint alleges, inter alla, that Superintendent Rosebraugh informed
employees at the time they were hired that the respondent operates and will
continue to operate on an "open shop" basis The undersigned is of the opinion
that in the context in which they were made as shown in this record, such state-
ments did not constitute a violation of the Act, and will accordingly recommend
that the complaint, to that extent, be dismissed.
According to the undenied evidence in the record, on about November 28,
1943, William W. Rosebraugh, the respondent, refused to recognize the Union
when requested to do so upon the statement of its representative that it had been
designated by a majority of the employees and the respondent at that time told
the union representative that the respondent would not do so because he did not
believe in the leadership of the A F. of L. or of the Union. The undersigned
regards this statement as evidence of further anti-union animus on the part of
the respondent but does not consider it necessary to determine whether or not
it constituted, in and of itself, a violation of the Act.
4 As of October 30, 1943, the respondent employed a total of 26 persons.
6 The foregoing findings are based upon the testimony of Burton . Other than denying
that he had stated that the plant would close , Superintendent Rosebraugh did not deny
Burton's testimony in this respect , but gave as his version of the conversation the fact that
he asked Burton "if he liked the place " and that Burton answered that the job was all right
but that working conditions could be improved and that the employees would get the Union
to improve conditions , and that Rosebraugh then said that the Union was not running the
place, that it was not in the plant yet, and suggested that if Burton wanted something
done he should ask for it. The undersigned does not credit Superintendent Rosebraugh's
denial that he told Burton in effect that the plant would close.
798• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discriminatory discharges
1. The discharge of Gail Ethell .
Gail Ethell began to work for the respondent on April 5, 1943, as a burner a
His beginning rate of pay was 80¢ per hour, and he received an increase of 5¢ on
each of three occasions, the first of which occurred about a week after he was
hired and the last in September 1943.
On Monday, September 27, Ethell secured permission of Frank Rosebraugh to
go on a hunting trip, stating that he had an opportunity to take such a trip
without expense to himself and that he would be gone Thursday and would return
to work Monday morning. Ethell went on the trip but did not return to town
until Monday evening because trouble had occurred with the car in which he was
driving Ethell went to the plant Monday evening and told Superintendent
Rosebraugh of the trouble which had occurred with the car, when asked why he
had not returned to work that day. Thereafter, Ethell worked overtime to make
up for the time he had lost 7
Ethell participated in the discussions among the employees with respect to
the formation of a union On October 27, Superintendent Rosebraugh told Ethell
that he knew that the latter was talking about a union and asked Ethell if he
wanted to quit. That evening or the evening following, Ethell secured membership
application cards of the Union and thereafter distributed them among Various
of the respondent's employees. Superintendent Rosebraugh, on cross-examination
by counsel for the Board, admitted that he "had heard rumors" that Ethell and
Burton distributed such cards. Ethell signed a membership application card
which he left at the union office the day after he had obtained subh cards
On November 8, 1943, Ethell was discharged and was told by Superintendent
Rosebraugh that the respondent no longer needed him e A new employee was
hired to replace Ethell 'Ethell desires to be reinstated to his job.
The respondent's contentions with respect to the discharge of Gail Ethell
The respondent contends that Ethell was discharged because he was not per-
forming his work as quickly as he should have and because he took off time to
go on a hunting trip without first securing permission to leave. The latter con-
tention was advanced by-,counsel for the respondent during oral argument before
the undersigned, but was not expressly asserted- as a ground for the discharge;
9 The work of a burner consists of cutting iron with an acetelyne torch.
7 The foregoing findings are based upon the testimony of Ethell Superintendent Rose-
braugh testified that Ethell told him on September 27 that he would like to go hunting, but
denied that he had asked permission to go. Ethell was not reprimanded by Superin-
tendent Rosebraugh , who, according to the latter 's testimony , merely told him he "was
much surprised" that Ethell had taken time off In considering the circumstances sur-
rounding this incident , the undersigned considers it more reasonable to conclude that
Ethell, in bringing up the matter , did so for the purpose of securing permission to leave
and that he did obtain permission , as he testified , rather than, as Superintendent Rose-
braugh testified, Ethell merely said that he would like to go and did actually go without
even asking for permission. In arriving at this conclusion , the undersigned has also con-
sidered the fact that Superintendent Rosebraugh ' s testimony as a whole was vague and
general and was lacking in that degree of forthright statement which convincingly supports
an impression of credibility , while Ethell impressed the undersigned as a credible witness.
The undersigned therefore, credits Ethell ' s testimony that he secured permission to go on
the hunting trip , as related above.
s Although the termination slips given Ethell and Burton by the respondent stated that
they were discharged because they had completed their work , Superintendent Rosebraugh
testified that they were not discharged for that reason , but rather for the reasons stated
by him in his testimony.
W. W. ROSEBRAUGH COMPANY 799
by Superintendent Rosebraugh during the course of his testimony.' It has previ-
ously been found that Ethell did secure permission to leave at the time he went
on the hunting trip in the latter part of September. Other evidence in the record
shows that the hunting trip incident was not a cause of the discharge and was
not regarded seriously by the respondent, without regard to the question as to
whether or not Ethell secured permission to remain away from work. Thus, the
respondent did not even reprimand Ethell when he returned to work and did not
discharge him until more than a month after the event had occurred The under-
signed finds that this incident was not an operative factor in the discharge of
Ethell.
With respect to the respondent's first contention, Superintendent Rosebraugh
testified that Ethell was falling behind in his work and that he first spoke to
Ethell about the matter in the middle or latter part of September; that he spoke
to him again three or four days later ; and that when no improvement was shown,
he spoke to him once more in the latter part of October." On cross-examination
by counsel for the Board, Superintendent Rosebraugh admitted that the quality
of Ethell's work during the entire period of his employment was "quite good,'1
that his dissatisfaction with Ethell was largely a matter of the amount of work
which the latter performed, that he had no method o^ determining Ethell's pro-
duction, that the number of welders increased from three at the time Ethell
began to work for the respondent to six and a seventh who worked part of the
time during October and November, and that there were more services required
of a burner during September, October, and November than there had been in
April 1943.
In recounting the circumstances surrounding his first conversation with Ethell,
Superintendent Rosebraugh testified that he spoke to Ethel] because "work began
to pile up around Ethell's cutting table," that "the welders were getting out
of material," and that he "wondered if it was too much work, or what it was."
It was at this time, it will be recalled, that Superintendent Rosebraugh granted
Ethell a wage increase of 5¢ per hour, the third such increase which Ethell re-
received." These conversations with Ethell all related to inquiries on the part of
Superintendent Rosebraugh as to how the work could be done more quickly. On
none of these occasions was Ethell reprimanded or told that the respondent con-
sidered that he was loafing on the job.
9 Superintendent Rosebraugh testified as follows :
Q. Will you state to the Examiner the reason why he [Ethell] was discharged on
the 8th of November?
A. His work did not seem to improve ; he was very evidently dissatisfied with the
place , and I didn ' t think he had his heart in the work any more ; that he was not a
good employee.
1o The last conversation was the one which occurred on October 27, when Superintendent
Rosebraugh told Ethell, among other things, that he knew that Ethell had been talking
about a union , and asked Ethell if he wanted to quit.
11 Superintendent Rosebraugh testified that he granted Ethell wage increase on that
occasion because Ethell stated that he could do more aork if he received more money.
Ethell, on the other hand, testified that he told Superintendent Rosebraugh that he could
not work any faster than the acetelyne torch would cut, that Rosebraugh then asked him
how much faster he could work for 5 cents an hour, that Ethell replied that he could work
about five percent faster, and that he considered the matter as a joke but that he received
the wage increase Superintendent Rosebraugh admitted that he "possibly had been
thinking of raising" Ethell's wages at the time he spoke to him. He further stated : "I
,don't know that Ethell at that time was thinking of a raise before I mentioned it to him."
It is reasonable to believe that the respondent would have reprimanded , rather than
rewarded , Ethell if the respondent really believed that Ethell was'not producing a suffi-
cient quantity of work. The undersigned is convinced and finds that Ethell was granted
the wage increase in question in the manner related by him.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing facts and in consideration of the entire rec-
ord, the undersigned finds that the respondent did not discharge Ethell because
the respondent believed that Ethell had failed to perform.his work or failed to
perform a sufficient quantity of work.
Concluding findings with respect to the discharge of Gail Ethell
The record shows that Etheli and Burton were the most active proponents for a
union among the respondent's employees, that on October 27 Superintendent
Rosebraugh told Ethell that he knew that Ethell was talking about a union and'
asked Ethell to quit, that Ethell declined to quit but on that evening or the
following night secured union application cards which he distributed among
various of the employees, that Superintendent Rosebraugh had heard that Ethell
and Burton were engaging in the distribution of such cards, that Ethell was
discharged a little more than a week thereafter, and that the respondent hired
another man to take Ethell's place. The record further shows, by reason of
Superintendent Rosebraugh's statement to various employees, including Ethell,
that the respondent was openly antagonistic to the Union and to any attempt on
the part of the employees to engage in self-organization. Upon the basis of this
record, the undersigned finds that Gail Ethell was discharged on November 8,
1943, because of his activities on behalf of the Union, and that the respondent, by
thus discharging Ethell, discriminated in regard to his hire and tenure of em-
ployment, thereby discouraging membership in the Union and interfering with,
restraining, and coercing his employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. The discharge of James Burton
James Burton began to work for the respondent on September 23, 1943, as a
helper to James Moorman in the installation of furnaces. His beginning rate of
pay was 800 per hour and he received a wage increase of 50 per hour approxi-
mately a week after he'began to work for the respondent. During the last week
in October, Burton became ill and was away from work for-five days. When
he returned, he was assigned to various jobs about the plant. ^
On October 27 or 28, Burton signed a union application card. Thereafter,
he spoke to various of the employees about the Union and asked 5 or 6 of them
to join. Superintendent Rosebraugh admitted that he had "heard rumors" that
Burton and Ethell were distributing union application cards among the employees.
On November 5 or 6, Superintendent Rosebraugh asked Burton if he had
heard anything about union activities or any talk about unions and told
Burton : "It will never go union because, if it does, I hate to see the party
break up " Burton replied that the respondent had government orders and
could not close the plant and that there would be a union if a majority of the
men wanted one and that the government would run the plant. Immediately-
prior to this conversation, Superintendent Rosebraugh had been talking to an
employee named Cooper to whom Burton had previously given a union applica-
tion card.
On November 8. 1943, Burton was discharged. Superintendent Rosebraugh
told Burton that the reason for his discharge was because he did not "fit in",
and when Burton asked him if there was anything wrong with his work he stated
that there was not.12 Burton desires to be reinstated by the respondent.
12 Superintendent Rosebraugh denied that he had told Burton that his work was^ ,satis-
factory, and testified that what he had told him was to the contrary . Ethell , however,
corroborated Burton 's testimony on this point . The undersigned credits the testimony of
W. W. ROSEBRAUGH COMPANY 801
The respondent's contentions with respect to the discharge of James Burton
The respondent contends that Burton was discharged because he did not per-
form his work in a satisfactory manner. Employees Berg and 0 Brien, who
appeared as witnesses for the Board, and Superintendent Rosebraugh and James
Moorman, who appeared on behalf of the respondent, testified that Burton's work
was not satisfactory. An examination of the evidence with respect to Burton is
necessary in order to determine whether he was discharged because the respondent
was not satisfied with his work or for other reasons.
On or about November 1, Burton, was assigned to the job of cutting exhaust
pipe, varying from 11/.r to 1% inches in diameter and about 18 inches long. Super-
intendent Rosebraugh testified that approximately 90 out of a total of 150 or 160
pieces of the pipe were wrongly cut, that one-half to two-thirds of the wrongly
cut pieces were salvaged, but that the cost of doing so was greater than if the
pipe had been discarded. According to the undenied testimony of Burton, Super-
intendent Rosebraugh spoke to him about the pipe only after Burton had requested
a wage increase. Superintendent Rosebraugh testified that when he spoke to
Burton about the matter, "There was no threat of firing him or anything of that
kind." He further testified that : "I wanted to make a hand out of him, because
we needed men "
No other criticism of Burton's work was made between that time and the date
of his discharge. The only other conversation between Superintendent Rose-
braugh and Burton after that date and until the latter was discharged occurred
on November 5 or 6, as previously noted. Superintendent Rosebraugh's version
of this conversation was that it occurred while Burton was straightening out
steel with a hammer, that he was hitting the steel with the heel of the hammer
which left marks in the metal, that Superintendent Rosebraugh asked Burton
if he liked the work and liked the place, that Burton complained about the fog
in the air from the welder's torches and said, "We will get the union and they
will fix it"; that Superintendent Rosebraugh replied, "The union is not running,
this place" ; that Burton answered that it would if enough employees asked them
to ; that Superintendent Rosebraugh then said; "They are not yet. If you want
something done, why don't you ask for it?"; and that he further said, "I have
shifted you around, and I would like to know where you can work. A man has,
to like his work to be able to work."
It is thus apparent according to Superintendent Rosebraugh's version of this
conversation that he did not criticize Burton and that his interest was still directed
toward making a "hand" out of him rather than discharging him. Yet no other
incident concerning Burton's work occurred between that time and the time ha
was discharged a day or two later which would show why he had become a less,
desirable employee in the interim.
In view of the fact that according to Superintendent Rosebraugh's own testi-
mony he did not anticipate discharging Burton at the time the pipe incident
occurred and' that he wanted to train him because the respondent needed em-
ployees, that his attitude toward Burton was the same when he spoke to him.
on November 5 or 6, and that nothing thereafter occurred with respect to the
manner in which Burton performed his work which would account for a change
in attitude on the part of the respondent, the undersigned is of the opinion that
Burton was discharged for reasons other than the fact that the respondent
considered him to be an unsatisfactory employee.
Burton as corroborated by Ethell and finds, as above stated , that Superintendent Rose,
braugh told Burton that the reason for his discharge was not because his work was
unsatisfactory. -
628563-45-vol. 60-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding findings with respect to the discharge of James Burton
As previously stated, the record shows that Burton and Ethell were the most
active advocates on behalf of the Union among the respondent's employees ; that
on October 27 or 28, Burton signed a union application card and thereafter spoke
to vaiious of the employees about the Union and asked 5 or 6 of them to join; that
on.November 5 or 6, Burton stated to Superintendent Rosebraugh that the Union
would come in the plant if a majority of the employees wanted it, despite the
respondent's wishes to the contrary, and clearly indicated that he was interested
in the Union ; that Superintendent Rosebraugh had heard that Burton and Ethell
were distributing union application cards among the employees ; that Superin-
tendent Rosebraugh was manifestly antagonistic to the Union; n that Burton was
discharged on the same day that Ethell, the other leading figure in the plant with
respect to union activities, was dismissed; that at-the time of the last incident
cited by the respondent of the unsatisfactory manner in which Burton performed
his work, Superintendent Rosebraugh did not criticize Burton, and was still
interested in training him as an employee, and did not consider discharging him;
that on this same occasion the respondent definitely learned of Burton's interest
in the Union ; that no other incident concerning Burton's work occurred between
that time and the time he was discharged a day or two thereafter ; and that at
the time of his discharge, Burton was told that it was not because his work was
unsatisfactory, but because he did not "fit in."
Upon the foregoing facts and upon the-basis of the entire record, the under-
signed finds that James Burton was discharged on November 8, 1943, because
of his union activities, and that the respondent, by thus discharging Burton,
discriminated in regard to his hire and tenure of employment, thereby discourag-
ing membership in the Union and interfering with, restraining, and coercing his
employees in the exercise of the rights guaranteed in Section 7 of the Act.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent discriminatorily discharged Gail Ethell
and James Burton. It will therefore be recommended that the respondent offer
Ethell and Burton immediate reinstatement to their former or 'substantially
equivalent positions without prejudice to their seniority and other rights and
privileges. It will be further recommended that the respondent make whole
Ethell and Burton for any loss of pay each may have suffered by reason of the
respondent's discrimination against him by payment to each of such employees
11 No inference as to lack of discriminatory intent arises by reason of the fact that
Ethell and Burton each told the respondent at the time they were hired that he had
previously been employed in a shipyard and was a member of a union , for Superintendent
Rosebraugh testified that it is a matter of common knowledge that all shipyard employees
are union members ; and further, the organization to which they belonged was not the
union which was engaged in organizing the respondent 's employees . See Stewart Warner
Corporation, 55 N. L. It. B. 593.
W. W. ROSEBRAUGH COMPANY 803
a sum of money equal to the amount he would normally have earned as wages
from the date of his discharge to the date of the respondent's offer of reinstate-
ment, less his net earnings" during said period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Sheet Metal Workers, No. 181, chartered by the Sheet Metal Workers Inter-
national Association, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Gail
Ethell and James Burton, thereby discouraging membership in the aforesaid labor
organization, the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act by informing employees at the time they were hired
that the respondent operates and will continue to operate on an "open shop"
basis.
RECOMMENDATIONS -
Upon the basis of the foregoing findings of fact and conclusions of law, -the
undersigned recommends that the respondent, W W. Rosebraugh, an individual,
doing business as W. W Rosebraugh Company, Salem, Oregon, and his agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Sheet Metal Workers, No. 181, chartered
by the Sheet Metal Workers International Association, affiliated with the Ameri-
can Federation of Labor, or any other labor organization of his employees, by
discharging or refusing to reinstate any of his employees, or by discriminating
in any other manner in regard to their hire or tenure of employment or any term
or condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing his em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Sheet Metal Workers, No. 181, chartered by the Sheet
Metal Workers International Association, affiliated with the American Federa-
tion of Labor, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act.
14 By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining-work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Biotherhood of Caspenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. It. B. 440 Monies
received for work performed upon Federal, State, county, municipal or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act : _
(a) Offer to Gail Ethell and to James Burton immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges ;
(b) Make whole Gail Ethell and James Burton for any loss of pay they may
have suffered by reason of the respondent's discrimination against them by pay-
ment to each of them of a sum of money equal to the amount they normally
would have earned as wages from the date on which each was discharged to the
date of the respondent's offer of reinstatement, less the net earnings" of each
during said period ;
(c) Post immediately in conspicuous places throughout the respondent's plant
at Salem, Oregon, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to the employees stating : (1) that the
respondent will not engage in the conduct from which it is recommended that
he cease and desist in paragraph 1 (a) and (b) of these recommendations; (2)
that the respondent will take the affirmative action set forth in paragraph 2
(a) and (b) of these recommendations; and (3) that the respondent's employees
are free to remain or become members of Sheet Metal Workers, No. 181, chartered
by the Sheet Metal Workers International Association, affiliated with the Ameri-
can Federation of Labor, or any other labor organization, and that the respondent
will not discriminate against any employee because of his membership or activity
in that organization ;
(d) File.with the Regional Director for the Nineteenth Region on or before
ten (10) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent informed employees at the time that they were hired that
the respondent operated and would continue to operate on an "open shop" basis.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to- the Board, pursuant to.
Section 33 of Article II of the said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As' further provided in said Section 33, should'
any party desire permission to argue orally before the Board request therefor
must be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board.
DAVID KARASICK
Dated July 19, 1944. Trial Examiner
15 See footnote 14, supra.