Peninsula Asphalt & Construction Co.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peninsula Asphalt & Construction Company and International Union of Operating Engineers, Local 324, AFL-CIO and Harry G. Arnold and George E. Killingbeck and Lawrence Haines and International Union of Operating Engineers, Local 324, AFL-CIO, International Hod Carriers, Building and Common Laborers Union of America , Local 1191, AFL- CIO, and International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 406. Cases Nos. 7-CA-2397, 7-CA-2438, 7-CA-2442, 7-CA-2445, and 7-CA-2453. April 12, 1960 DECISION AND ORDER On Decemebr 31, 1959, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that -the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent -and the General Counsel filed exceptions to the Intermediate Report .and the Respondent filed a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made .at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in these ,cases, and hereby adopts the findings,' conclusions,2 and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in these cases and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Peninsula As- phalt & Construction Company, Traverse City, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of em- ' The Respondent excepts to credibility resolutions made by the Trial Examiner. How- ever, we will not overrule a Trial Examiner 's resolutions as to credibility unless a clear preponderance of all the relevant evidence convinces us that such resolutions were in- correct. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A. 3). In agreeing with the Trial Examiner that Respondent discriminatorily refused to re- employ complainant Johnson in the spring of 1959, we note that Respondent President Wysong's statement to Union Business Agent Pattison in February 1959 that he was not .going to reemploy Johnson was communicated to Johnson. 127 NLRB No. 20. PENINSULA ASPHALT & CONSTRUCTION COMPANY 137 ployment with International Union of Operating Engineers, Local, 324, AFL-CIO; International Hod Carriers, Building and Common] Laborers Union of America, Local 1191, AFL-CIO; and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 406, as the exclusive statutory representative of its employees in the following appropriate unit : All production and maintenance employees in the Company's paving and plant operations, exclusive of office clerical employees, watchmen, and supervisors as defined in the Act. (b) Discouraging membership in any of the above-named Unions, or any other labor organization, by refusing to reemploy any of its employees and/or former employees, or by discriminating in any other manner in regard to hire or tenure of employment, or any term or con- dition of employment. (c) Making or effecting any changes in rates of pay, wages, hours,. or other terms or conditions of employment of its employees in the appropriate unit without giving notice and consulting with the aforesaid Unions as the exclusive bargaining representative of its- employees. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form,, join, or assist any labor organizations, 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, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act, as modified by the. Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the aforesaid Unions as the exclusive statutory representative of the employees in the above- described appropriate unit, and embody in a signed agreement any- understanding reached. (b) Offer to John R. Harrand, Lawrence Haines, Paul Johnson, Harry G. Arnold, and George E. Killingbeck immediate and full reinstatement to their former or substantially equivalent positions,. consistent with the Respondent's seasonal operations, without preju- dice to their seniority or their other rights and privileges, in the man- ner set forth in the section of the Intermediate Report entitled "The- Remedy." (c) Make whole John R. Harrand, Lawrence Haines, Paul Johnson, Harry G. Arnold, and George E. Killingbeck for any loss of pay they may have suffered by reason of the discrimination against them in the- 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner set forth in the section of the Intermediate Report entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amounts of backpay and the rights of employment under the terms of this Order. (e) Post at its plant in Traverse City, Michigan, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Seventh 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 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Union of Operating Engineers, Local 324, AFL-CIO, International Hod Carriers, Building and Common Laborers Union of America, Local 1191, AFL-CIO, and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 406, or in any other labor organization, by refusing to reemploy any of our employees and/or former employees, or by discrimi- nating in any other manner in regard to their hire or tenure of employment, or any other term or condition of employment. WE WILL bargain collectively, upon request, with the above- named Unions as the exclusive bargaining representative of all the employees in the bargaining unit described herein, and if an understanding is reached, embody such understanding in a signed -agreement. The bargaining unit is: PENINSULA ASPHALT & CONSTRUCTION COMPANY 139 All production and maintenance employees in our paving and plant operations, exclusive of office clerical employees, watchmen, and supervisors as defined in the Act. WE WILL NOT make or effect any change in rates of pay, wages, hours, or other terms or conditions of employment of our em- ployees in the appropriate unit without giving notice and con- sulting with the above-named Unions. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent po- sitions, consistent with our seasonal operations, without prejudice to their seniority or to their other rights and privileges: John R. Harrand Paul Johnson Lawrence Haines Harry G. Arnold George E. Killingbeck WE WILL make whole each of the above-named employees for any loss of pay they may have suffered as a result of the discrimi- nation against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organiza- tion, to form labor organizations, to join or assist any of the above-named Unions, 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, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain or refrain from becoming or remaining members of the above-named Unions 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 membership in or activity on behalf of any labor organization. PENINSULA ASPHALT & CONSTRUCTION COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon separate charges filed by the above-named Unions and individuals, thee General Counsel of the National Labor Relations Board, through the Regional Director for the Seventh Region (Detroit, Michigan), issued an order consolidating the cases and issued a complaint dated July 31, 1959, against the above-named Re- spondent alleging that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1)(3), and (5) of the Labor Management Relations Act. In its answer, as amended, the Respondent admits certain allega- tions of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Traverse City, Michigan, on October 13 and' 14, 1959, before the duly designated Trial Examiner. The parties through their counsel or representatives were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. The Gen- eral Counsel and counsel for the Respondent submitted briefs which I have fully, considered. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Respondent, a Michigan corporation, maintains its principal office and place of business in Traverse City, Michigan, where it is engaged in the business of paving and surfacing roads in the State of Michigan and supplying materials for such operations . In the course of its operations the Respondent performs and has continuously performed over a long period of time, substantial quantities of work on State and county highways within the State of Michigan which are constructed with Federal funds and/or constitute links in the National Highway System. During 1957 and 1958, the annual value of services performed by the Respondent on State highways and on county roads exceeded $100,000 in each category. The Respondent does not contest jurisdiction. I find the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I find each of the above-named Unions is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The issues are: (1) Was the Company relieved of its statutory obligation to bar- gain collectively with the Unions within the year following their certification by the Michigan Labor Mediation Board because a majority of the employees notified the Company, by means of a petition, that they no longer desired the Unions to represent them .(2) did the Company discriminatorily discharge and/or fail and refuse to recall, reemploy, or reinstate five of its employees; and (3) did the Com- pany unlawfully grant unilateral wage increases to employees in the bargaining unit. B. The Company's operations; organizational activities Max L. Wysong, company president, was, and is, responsible for all operations of the Company as well as its labor policy. In general, the Company maintains its own plant for producing asphalt mixtures, has its own equipment, such as trucks, bulldozers, and pavers, and performs all services necessary and incidental to asphalt construction work. The Company's operations are seasonal, depending upon weather conditions, and ordinarily the work season runs from about April to November. The Company normally employs from 15 to 25 men and it has been the practice of the Company to lay off or terminate all employees at the end of the season, except foremen, and to rehire the men the following spring. It is undisputed, as related by employees Donald A. Kaspar, George E. Killing- beck, James R. Harrand, and Paul Johnson, that some 14 employees attended a union meeting about September 23, 1958, in Cadillac, Michigan, which was con- ducted by Richard Pattison, business agent for Local 324, and all or practically all PENINSULA ASPHALT & CONSTRUCTION COMPANY 141 the men, except Kasper, signed union cards.' The same day, or the next day, Kaspar informed Roydon Engle, plant foreman, of the meeting and the fact that practically all of the employees, himself excluded, had signed union cards. Engle, a few hours later, telephoned this information to Wysong, who said he would come over to the plant. Wysong arrived at the plant in an hour or so, but Engle had no conversation with him. The day following the union meeting Wysong spoke to the crew working on the Pure Oil job in Cadillac. Wysong, according to Harrand and Johnson, told the men he knew they had held a meeting, that they had joined the union, and asked what they expected to gain by joining. Killingbeck stated that a day or so after the union meeting, Wysong held a meeting of all the workers (he did not give the number) in a trailer at Cadillac. In substance, Wysong inquired why the men wanted a union instead of going along with him, mentioned his poor financial condition, and asked if they had any gripes. Harry G. Arnold stated he and other employees were being shorted in their pay and that they were afraid of Wysong. Hank Cebula also brought up the subject of short pay. Wysong promised to straighten out the pay shortage. The meeting then ended. The day after the trailer meeting Johnson was working on a highway project near Cadillac when Wysong drove to the job and called him over to his car. Wysong said he heard Johnson had joined the union, which Johnson admitted. Wysong then stated, "If the union gets in-You, Slim [Lawrence Haines] and Jim [Harrand] will be the first to go." Johnson asked the reasons therefor and Wysong answered, "You guys are the oldest men here and have the most senority and therefore you have the most to gain by it." Johnson inquired why Wysong believed he was the ringleader and Wysong said because he was the oldest man. Johnson rode back to the plant with Wysong and during the trip Wysong asked Johnson what he would gain by joining the union and if he had any complaints. Johnson answered that the men expected to gain benefits by joining the union and the only complaint he had was the shortage in pay. Wysong testified that after he heard the employees were interested in a union he called a meeting of the men for the purpose of finding out why they desired organization and where he had failed them in conducting the business. Johnson ,and Cebula complained about pay shortages and Edgar Gokey, apparently, said they did not want to break the Company but wanted the situation straightened out. Wysong asked why the men had not brought the pay shortage to his attention and Arnold stated that the men were afraid of him. Wysong said he was sorry they felt that way and if they had come to him, he would have adjusted the pay shortage. Although Wysong did not fix the approximate time or place of the meeting, it is obvious he was testifying in regard to the so-called trailer meeting. Wysong could not recall any other conversations with the employees either collectively or indi- vidually concerning their union activities or membership, or working conditions. Wysong was not questioned on the conversation Johnson said he had with him the day after the trailer meeting, set forth above. C. The State Board proceedings Wysong testified that sometime around September 14, 1958, Pattison called upon him and, seemingly, requested recognition, or as Wysong put it, Pattison "wanted to negotiate with me about labor relations." The record fails to disclose the substance of the meeting, other than that Pattison's request was obviously rejected. In any event, on October 8, 1958, the Company and the three Unions, Local 324, Local 406. and Local 1191, signed an agreement for a consent election, the election to be conducted under the supervision of the Michigan Labor Mediation Board on October 14, 1958, for the purpose of determining whether the employees desired to be represented by the Unions for the purpose of collective bargaining. The parties, instead of specifically describing the unit in the agreement, attached thereto, as part of the agreement, a list containing the names of 17 employees eligible to vote in the election. Of the 17 employees, 15 appeared as witnesses at this hearing (Donald Rongey and Bert Towbridge did not appear) and from their testimony I am satisfied all were employed in production or maintenance work. Again, the payroll records of the Company, which set forth the names, job classifications, and rates of all employees for the period October 1, 1958, to October 1, 1959, conclusively show that the 17 men were employed as production or maintenance employees at the time 'From the record it is clear that the employees signed authorization cards for the Union exercising jurisdiction over his particular job classification. It is also clear that many of the witnesses simply referred to the Unions as the Union. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in question. Moreover, the Company does not raise any question concerning the unit or in any manner challenge the validity of the State Board proceedings. Under the circumstances, I conclude that the parties were fully aware of the fact that the election was to be conducted among employees employed in a production and main- tenance unit and that the election was in fact conducted on that basis. I therefore find a unit of production and maintenance employees, with the usual exclusions, as alleged in the complaint, to be appropriate for the purpose of collective bargaining. The election was held as scheduled and the tally of ballots showed that 10 em- ployees voted in favor of the Unions, 6 against, with 1 challenged ballot. On October 24, the State Board issued its certification showing the result of the election. D. The refusal to bargain On the day of the election Pattison and James Kelly, a representative of Teamsters, Local 406, met Wysong at the plant. Pattison stated he had reports that Wysong had threatened to lay off some of the employees if the Unions were successful in the election. Wysong denied making any such threats and said all the employees were "good men, and he had every intention of keeping every one of them," except Cebula who was discharged the previous day.2 There is little, if any, dispute between Pattison and Wysong as to their bargaining positions, other than Wysong was vague as to dates and details of meetings and conversations. After the results of the election became known, Pattison, Kelly, and Wysong gen- erally discussed the subject of an agreement with the Unions. Wysong said he would sign an agreement, but he was undecided whether he would sign a separate contract or join the Michigan Road Builders Association, Labor Relations Division, and be covered by their contract or contracts with the Unions. Pattison stated it made no, difference since Association and individual contracts were the same. Wysong wanted time to consider the matter, which was satisfactory to Pattison. Pattison then gave Wysong a copy of the Unions' short-term contract. The parties did not discuss the Unions' pay rates for the reason, as stated by Pattison, that the rates were the same as those required under the Bacon-Davis Act and Wysong knew the rates as he performed Federal work covered by the Act. The meeting ended with Pattison agreeing to call Wysong in about a week. About October 23, Pattison called Wysong who said he had written the Association. but had received no reply and to contact him later. About December 17, Pattison contacted Wysong and Wysong again stated he had not heard from the Association and to call him in February. About February 25, 1959, Pattison met with Wysong at which time Wysong said he would not sign an agreement until the men were called back to work. Pattison asked the reason for his action and Wysong replied he was doing some things the Unions would not accept, namely, he was not going to recall or employ Harrand and Johnson. Pattison asserted he was acting in a vengeful manner, which Wysong. denied, and that he should reconsider his decision. Wysong said he had already notified, or would notify, Harrand and Johnson of his decision not to employ them. Wysong asked Pattison to call him April 1, when they would make an appointment to sign the contract. On April 1, Pattison telephoned Wysong and Wysong said the Company was not doing much at that time and to call him on April 15. About April 16, Pattison went to the plant but Wysong was out of town. About April 28, Johnson called Pattison to inform him that a petition had been, circulated among the employees at the plant that day. About April 30, Pattison telephoned Wysong who stated that a matter had come up which affected his contractual obligations with the Unions and suggested Pattison meet with him on May 7. On May 7, Pattison and Kelly met with Wysong at his office. Pattison stated he had waited long enough and that he wanted a contract. Wysong answered he had proof the employees no longer wanted the Unions and refused to discuss or sign an, agreement. Pattison said he knew of the petition and there followed some discussion on the legality of the petition and the State Board certification. Wysong stated he would consult an attorney regarding these legal questions. The meeting then ended. About a week later Kelly met or talked with Wysong but there was no change in Wysong's position. There were no further discussions or meetings between the- parties. 2 Cebula was discharged because of his rough handling of trucks His discharge is not an issue in the case. PENINSULA ASPHALT & CONSTRUCTION COMPANY 143 Wysong stated he had meetings and conversations with Pattison at various times, the dates of which he could not recall , in the period from the fall of 1958 to the spring of 1959. In substance Wysong testified he wrote the Association but did not receive any information from it until the spring of 1959. During the above period Wysong stated, "I don't think that at any time that there was any doubt in his mind [Pattison] or my mind but what we were going to enter into an agreement ." While Pattison was anxious to have the agreement signed , Wysong told him, "There is really no, hurry because I won't be rehiring until next spring, but before we go to work we will be sure and have a contract, I will live up to my agreement that I would sign a con- tract with them." Wysong did not change his position until he found a petition on his desk signed by 12 employees stating they were no longer members of the Unions. Wysong could not remember the date he received the petition , but there is no doubt it was placed on his desk in the last part of April although the approximate date was not established . After receipt of the petition , Wysong told Pattison and Kelly, obvi- ously at the meeting of May 7, that he could not sign a contract against the wishes of his men, but they were free to sign up any employees who might want to join the Unions. The Petition The petition was prepared by Allen, Donald Kaspar, and Claude Greenman one Sunday morning in April. The petition was addressed to Wysong and, after an introductory paragraph on the exercise of constitutional rights, states , "We do not wish to become members of the union , instead we wish to remain free and active as we presently are." After signing the petition, Kaspar, about 2 days later , presented the petition to the employees during lunch hour and asked them to sign up if they approved the petition . Allen then placed the petition on Wysong's desk. The peti- tion contains the signatures of 12 employees all of whom except Kaspar had previously signed union cards.3 Employee Emery Savage, a witness for the Company, testified that the petition was circulated at the plant around the end of April. During the morning of that day Wysong assembled some of the men and announced he was granting pay increases effective the following week. That afternoon Allen and Kaspar told the men that since Wysong was giving them a raise there was no need for bringing in the union and paying dues and initiation fees and they should sign the petition . Savage had previously signed a union authorization card and refused to sign the petition. He and other employees received pay increases in the next week or so. E. The wage increases On May 9, 1959, Wysong conceded that pay increases were given to 10 employees, all of whom were included in the bargaining unit, without notice to or discussion with the Unions. F. The termination of or refusal to reemploy five employees The complaint alleges that the Company discriminatorily terminated or refused to reemploy five employees in April 1959. The answer generally denies the allega- tion and the Company, in essence, contends it had no knowledge of the discriminatees' union membership or activities and that they were terminated or refused reemploy- ment for good cause . The evidence with respect to these individuals is as follows: Harrand began working for the Company in 1954 and was continuously employed each season through December 6, 1958. He was employed as a laborer-operator and ran a motor grader and distributor. A few days after the trailer meeting, Wysong asked Harrand what he expected to gain by joining the Union and he replied 8 The General Counsel contends that Allen was employed in a supervisory capacity and, therefore, the Company was responsible for his activities in connection with the petition. Allen admitted that at times in 1958 and 1959 he acted as foreman on various jobs. He worked directly under Wysong , was responsible for the proper and timely completion of the work , issued instructions to the men, and on one occasion hired employees, apparently at the jobsite, for that particular job According to the Company's payroll records Allen was employed as a laborer-operator on an hourly rate and, seemingly, did not receive extra pay while acting as foreman . From the record it is plain Allen signed a union card, although he was not examined on that point His name was also on the list of eligible voters and he voted in the election , without challenge . Considering the type of work per- formed by the Company and the necessity of having someone in charge of its crews operating in the field , I find Allen at times was simply a working foreman and not a supervisory employee as that term is defined in Section 2(11) of the Act. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it might bring some results. Harrand was ordinarily among the first group of men to be reemployed, so around April 1, 1959, he talked to Wysong about going to work. Wysong said he decided not to hire him and when Harrand asked for the reason, Wysong stated his work was not satisfactory and that he had reports from the foreman, some of which were good and some bad. Harrand was not reemployed. Wysong told Harrand he would not be reemployed because Foreman Alpers had complained of his work. When Harrand asked if Wysong would give him a recom- mendation for another job Wysong stated, "As far as ability I would, but as for your attitude right now, no." Alpers said Harrand ran the grader most of the time, and during 1958, whenever Harrand was needed he would be down the road talking to the truckdrivers and he would have to "holder" to get him. This happened about six times during 1958, commencing in the spring, and each time Alpers informed Wysong of the incident. Harrand, on rebuttal, stated when he was running the grader or the distributor he would work ahead of the paving crew, sometimes as much as a couple of miles.' Harrand denied Alpers ever complained about his work or being unable to find him. Haines was initially employed in 1955 as a laborer, and later became a truck- ,driver and worked all seasons through 1958. In the early part of April 1959, Haines, as in previous years, went to the plant and spoke to Wysong about going to work. Wysong stated, "We decided not to hire you back." Haines said he might as well look for another job and left. Wysong stated Haines was not reemployed because he was rough on equipment. He cited one instance when Haines was told to take the truck home or keep it run- ning and he kept it running for the remainder of the job. Wysong pointed out he had complaints from the garage servicing the trucks that all trucks were always dry .of grease when brought in Haines, on rebuttal, testified he was given the truck which had been driven by •Cebula (who had been., discharged because of his rough handling of equipment), and that he informed the plant foreman the truck was in bad condition. The foreman told him they would have to use the truck for the rest of the year Haines had the truck greased and oil changed regularly and received no complaints con- cerning the manner in which he maintained the truck. Johnson was first employed in 1952 and worked every season until October 20, 1958. In 1958, Johnson did general work, ran the paver and the roller, and at times acted as working foreman on small jobs. In 1958, he was paid 10 cents an hour more than comparable employees for the reason, as given by Wysong, that he was the oldest man in point of service. As set forth above, Wysong told Johnson, about September 24, that if the Union got in Johnson, Harrand, and Haines would be the first to go. Around October 29, 1958, Johnson was working on a small job which !Allen was running and he asked Allen if he could be laid off. Johnson made the request because Allen, rather than Johnson, was put in charge of the job, which indicated the Company was going to get rid of him, and the season was nearly over. Allen told Johnson he had spoken to Wysong and he could be laid off when the job was completed that same evening. In the spring of 1959, Johnson talked to Arnold, Harrand, and Haines 'and found out they had not been reemployed. In view of the Company's refusal to reemploy these men and the prior statement by Wysong that Johnson would be the first to go if the Union came in, Johnson did not apply for work in April 1959. In prior years Johnson, who was usually reemployed in a group of late recalls, spoke to Wysong or Alpers about work and they would tell him when to report. Around the last of April 1959, the insurance agency notified Johnson his health and accident policy was being canceled. Wysong granted Johnson's request for layoff and he was actually laid off October 24 Wysong called Johnson "an instigator of little things," such as the boss is going to do this or that, which agitated the men, and a couple of times he failed to do the right thing by Foreman Alpers In previous years Johnson would come to the plant and request work but he did not do so in 1959. However, Wvsong ad- mitted he would not have reemployed Johnson even if he had applied for work. Johnson, on rebuttal, admitted he spoke to the men about the Union but denied he ever stirred up the employees or ever made any promises or predictions to the men as to what the Company might or might not do. He denied Alpers had ever criticized his work, on the contrary Alpers recommended him for a pay raise, which was granted. Employee George Broad, on surrebuttal, testified Johnson stirred up the men by telling them in the fall of 1957 that the Company was going to give them snow -tires as a Christmas present or bonus Arnold'was first employed by the Company as a truckdriver in the spring of 1957 and worked until about November 1957, when he was laid off. In April 1958, PENINSULA ASPHALT & CONSTRUCTION COMPANY 145 Wysong telephoned him to report for work, which he did immediately, and he con- tinued to work until about November 16, 1958. Around the latter date work was slow; Arnold had not worked for 1 or 2 days, so believing it time for the seasonal layoff he informed the timekeeper that if he was needed to call him and he would come in. Arnold drew unemployment compensation during the period of his layoffs in 1957 and 1958. About the middle of April 1959, Arnold went to the plant and asked Wysong for his job. Wysong said he had no job for him and Arnold remarked it was on account of the Union. Wysong stated Arnold was not being reemployed because (1) he was always griping about being short in his wages ; (2) he would let other company trucks pass him to avoid getting the last load; and (3) on one occasion at Wiedman, Michigan, he had clutch trouble and while the truck was being repaired he had refused to do shovel work for Foreman Carl Alpers. Arnold denied these accusations and requested Alpers be called in to clarify the truck incident. Alpers was called in but could not remember the affair. The conversation ended with Wysong telling Arnold to think it over and come back the next week. Arnold went to the office the following week and was informed by the timekeeper that Wysong was busy and he did not know when he could see him. Arnold told the timekeeper if Wysong wanted him to return to work to call him at his home. Arnold did not hear from Wysong and was not reemployed Wysong stated Arnold became upset when he refused to rehire him and declared he was being refused reemployment because of the Union. Wysong denied that was the reason and told him he was not being rehired because of the truck incident and his avoidance of loads, described above. Alpers then came in and after some discussion Wysong said if he was in error to forget it and "just let it go." As Arnold was angry Wysong asked him to go home, cool off, and come back later. Wysong gave the following version of Arnold's second visit to the plant: I saw MT. Arnold's car drive up and I think it parked' on the scales, if I am not mistaken. I saw it out the window of my office, and I was busy and the thought didn't come to be about it again for I would say a week, in other words, that his car had driven up there. It was never told to me that he had been there. I forgot it. The source of my information that he was there came from an outside source, and I said that I had remembered-they told me, I remembered seeing his car drive up, and then when I thought of it 1 thought he just couldn't wait to see me. Both Alpers and Wysong admitted the truck incident was meaningless and nothing more than a complete misunderstanding 4 and Wysong conceded he had little or no proof Arnold was parking on the road to avoid getting the last load. Wysong never contacted Arnold and concluded his testimony concerning Arnold by stating: As I stated before, Harry Arnold did an excellent job for us and when I give him a '53 Ford truck, and the reason eventually that it boiled down to not rehiring him was merely that we had had this misunderstanding and there was feeling there I could not free myself from, and so I didn't hire him. It had nothing to do with any union activity or anything else. Killingbeck was first employed in 1956 as truckdriver and worked the customary seasonal periods during 1956, 1957, and 1958. Killingbeck stated that the day of the trailer meeting, Wysong asked Killingbeck if he was not acting foolish going against him at his age. About a week or so later Wysong showed him the election notice posted on the bulletin board and told him, "You have a chance to reconsider." About October 23, 1958, Killingbeck asked Wysong if he was busy, and Wysong said not too busy, that he was going to lay off some men the next week. Killingbeck said he was having trouble with his back-he had suffered a back injury in 1956- and requested that he be laid off and his request was granted. Killingbeck went to the office several times in the spring of 1959 regarding a job and talked to Esther R. Myer, Wysong's secretary and bookkeeper, but he did not see Wysong until April 29. On that date Wysong told him he had no job for him, that he understood Killingbeck had quit. Killingbeck denied he had quit his job As in prior layoff periods, Killingbeck drew unemployment compensation and his health and accident insurance was maintained by the Company. On April 29, his insurance was canceled. 4 While at Wiedman, Arnold was having clutch trouble so Alpers told him to take the truck to a garage in 'Clare and have it fixed. Arnold did so, then returned and worked with the crew One of the men said it was possible the clutch simply needed fluid rather than an overhaul job. Arnold then went to Clare, had fluid put in the clutch, which was all that was required, and he had no more trouble with the truck. 560940-61-vol. 127-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wysong testified Killingbeck complained of his back and asked to be laid off about October 18. As he was about to be laid off anyway, Wysong granted his request. Sometime in December , Killmgbeck came to the office and told Wysong he was not returning to work in the spring because he was too old and he was not going to pay $75 to join the Union. During the spring of 1959, Mrs. Myer informed Wysong that Killingbeck had been in the office a couple of times and inquired about buying a truck and hauling for the Company . One day in the spring Killingbeck came to the plant and asked Wysong for a job. Wysong said he had not planned on his returning to work, that he had only two trucks operating (by Emery Savage and Bert Towbridge ), that the other two trucks were still in the garage, and he had no job for him. Killingbeck then brought up the subject of buying a truck and hauling for the Company . Wysong advised him not to do so, but if he did get a truck and the Company needed one he would hire him. Wysong heard nothing further from Killingbeck. On cross-examination, Wysong admitted he did not have a full complement of employees when Killingbeck applied for a job and thereafter he hired five or six new truckdrivers.5 Mrs. Myer testified that Killingbeck , in the period of his layoff, came to the office on several occasions in connection with medical insurance claims. Around March 1959, Killingbeck told Mrs. Myer he was not coming back but was considering buying a truck and hiring out to the Company and asked her to speak to Wysong about the matter. Mrs. Myer knew the Company hired trucks for hauling asphalt, but not from its employees , and suggested he take it up with Wysong. Mrs. Myer also stated Killingbeck in the past had complained of a chronic back injury but on one of his visits in 1959 he told her his back was much better. Concluding Findings The record fully sustains the allegations of the complaint that the Company un- lawfully refused to bargain with the Unions on and after about December 17, 1958. It is undisputed and I find that the Unions were duly certified by the Michigan Labor Mediation Board on October 24, 1958, as the exclusive bargaining repre- sentative for all the Company's production and maintenance employees in its paving and plant operations , exclusive of office clerical employees , watchmen, and super- visors as defined in Section 2(11) of the Act. It is well established that a repre- sentative which has been certified on the basis of Board election is entitled to recog- nition for a reasonable period, ordinarily a year, absent unusual circumstances.6 The Board has held that the "1 -year rule" applies not only to its own certifications but also to certifications based upon secret -ballot elections properly conducted under the auspices of responsible State Government agencies .? The validity of the State Board certification is not challenged by the Company, consequently the Unions by virtue of the certification were, and are , the exclusive representatives for the employees in the above-named unit. As a corollary thereto, the Company, was obliged to grant exclusive recognition to the Unions for a period of 1 year. The Company, through Wysong , admits it refused to bargain collectively with the Unions within the certification year but seeks to justify its refusal on the basis of a petition signed by a majority of the employees in the unit repudiating the Unions as their bargaining representative . In the Bluefield Produce case, supra, the Board, under similar facts, held that such a repudiation "is not the type of unusual circumstances warranting suspension of the 1-year rule." I therefore conclude that the petition afforded no excuse for the Company 's action. Moreover, although Wysong pro- fessed his willingness to sign an agreement the uncontested evidence shows that, despite numerous requests , he delayed and stalled the execution of any agreement or even meeting with the Unions , from December 1958 to May 1959, when, upon receipt of the petition , he flatly refused to recognize or negotiate with the Unions as the exclusive representative of the employees . From the record I find that the Company, since about December 17, 1958, has failed and refused to bargain with the Unions in violation of Section 8(a) (5) and ( 1) of the Act. I further find that the Company violated Section 8(a)(5) and ( 1) of the Act by unilaterally granting wage increases to 10 employees in the bargaining unit on 5 His testimony and the payroll show that Christian Bekerdt was hired on April 28, 1959 ; Donald Zang on May 9; Donald Fewins on June 8 (terminated August 22 ) ; Robert Broad, June 15; Bryan Simsa, July 30 , Rodney Simsa , August 3, and Garth Bogart, September 22. 6RayBrooks v. NLRB, 348US 96 Bluefield Produce & Provisson Company, 117 NLRB 1660 ; Dunkirk Broadcasting Corporation, et al, 120 NLRB 1588 PENINSULA ASPHALT & CONSTRUCTION COMPANY 147 May 9, 1959, without notifying or consulting with the Unions as the bargaining representative of all the employees in the unit.8 The remaining issue to be decided is whether the Company discriminatorily ter- minated or refused to reemploy five of its employees as alleged by the General Counsel, or whether as asserted by the Company they were discharged or refused reemployment for good cause . The issue, of course, is a factual one. The record shows that the Company 's operations were dependent upon weather conditions and men employed in the paving and plant operations normally worked from about April to November, when they were laid off. It is equally well established that the Company made it a practice to rehire or reemploy the laid-off employees when operations were resumed the following spring. The discriminatees uniformly testi- fied that during the period of their layoff in 1958-1959, they received unemployment compensation the same as they had in the past and there is no question but that their health and accident insurance remained in force, at least until the latter part of April 1959 . These facts, plus other evidence considered below, refutes the idea that any of the discriminatees quit or were discharged prior to the commencement of operations in the spring of 1959. I find company knowledge of organizational efforts and union membership and activities on the part of the discriminatees was plainly established by the following undisputed evidence, detailed above : ( 1) Kaspar, with some 13 other employees, attended the union meeting held about September 23, 1958, and immediately re- ported the event to Plant Foreman Engles, as well as the fact that practically all the employees , except himself, had signed union cards ; ( 2) Engles promptly tele- phoned this information to Wysong; and (3) within a day or so Wysong held two meetings of the employees to find out why the men desired unionization and if they had any complaints . Arnold and Johnson explained they were being shorted in their pay and were afraid of Wysong. Wysong remarked he was sorry the men felt that way towards him and promised to adjust the pay shortages. I further find, on the basis of Johnson's credible and undenied testimony, that around September 24, 1958, Wysong remarked that Johnson had joined the Union, which he admitted , and warned him if the Unions got in Johnson , Haines, and Harrand would be "the first to go." While it is true that Wysong did not carry out his threat of discharge until the next spring, the reason for the delay was, no doubt, attributable to the fact that the Unions were not certified until October 24, just a short time prior to the seasonal layoff of employees . Nor is there any indication that Wysong changed his attitude towards the discriminatees or the Unions following the cessation of operations . As Wysong's threat of discharge was uttered more than 6 months prior to the filing of charges herein , it may not, under the proviso to Section 10(b), be considered as evidence to support a finding of unfair labor practice. However, it is well settled that evidence of this character may be consid- ered as background to explain ambiguous and equivocal conduct occurring within the 6-month period Since the reasons given by the Company for its refusal to reemploy the discriminatees within the 6-month period are untruthful defenses or pretexts, leaving the real reason for such refusals unexplained by events occurring within the 6-month period , I find that consideration of the background evidence for the purpose of seeking an explanation is warranted here.9 Turning to the individuals who were terminated or refused reemployment, I find, on the basis of the evidence set forth above , as follows: Harrand had been regularly employed from 1954 through 1958, and was refused reemployment by Wysong, about April 1, 1959, because Foreman Alpers had complained of his work . According to Alpers, Harrand was never around when needed and he had to "holler" to get him. Although Alpers claimed Harrand's practice began in the spring of 1958, and occurred about six times , which he reported to Wysong, Alpers never spoke to nor reprimanded Harrand concerning these com- plaints and Harrand worked the entire season . Harrand's job on the grader or distributor required him to work ahead of the paving crew and he denied Alpers ever complained about being unable to find him. Oddly enough, Wysong admitted he was willing to give Harrand a recommendation as to his work ability but not as to his attitude I accept Harrand's testimony and find he did not stray away from his job and that Alpers made no complaints to him in that respect or regarding his work. I also find that Wysong's refusal to reemploy Harrand by reason of Alpers' com- plaints was nothing more than a pretext to eliminate a proponent of unionization and strictly in line with Wysong's earlier warning and threat to get rid of Johnson, Harrand, and Haines in the event the Unions came into the plant. 8Intracoastal Terminal, Inc., et al , 125 NLRB 359 9 Paramount Cap Manufacturing Company, 119 NLRB 785. Order enfd., 260 F. 2d 109 (C.A. 8). Walton Manufacturing Company, 125 NLRB 485. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haines was employed continuously from 1955 through 1958, and in the early part of April 1959 was refused reemployment by Wysong, who simply stated he had decided not to reemploy him. Wysong explained Haines was not reemployed because he was rough on equipment, although it is not clear whether he actually gave Haines any reason for his decision. Irrespective of whether he did or did not give any reason for his action, all Wysong could come up with was one instance when Haines was told to take his truck home or keep it running, and he kept it running for the remainder of the season. At the same time Wysong admitted he received complaints from the garage servicing equipment to the effect that all com- pany trucks were in poor condition when brought in for service. Haines related the truck was in bad condition when it was assigned to him and he so advised the foreman. However, he was instructed to drive the truck for the rest of the year, which he did, without any complaints regarding his maintenance thereof. As in Harrand's case, I find Wysong's reason for refusing to reemploy Haines to be without merit or substance and merely an excuse to eliminate Haines. Johnson, the oldest employee in point of service, worked regularly from 1952 to October 1958. In past years Johnson was reemployed in the latter part of April, shortly after the resumption of limited operations. Johnson did not apply for re- employment in April 1959, because he knew the Company had declined to reemploy Harrand, Haines, and Arnold, and Wysong had previously warned him he would be among the first to go if the Unions came into the plant. Wysong admitted he would not have reemployed Johnson even if he had applied for work since he was "an instigator of little things" and a couple of times he failed to "do right" by Fore- man Alpers. Johnson denied he instigated anything, other than he spoke in favor of organization, and denied Alpers ever expressed any dissatisfaction with his work. From these facts d have no difficulty in finding that Wysong's refusal to reemploy Johnson was motivated solely by a desire to be free of the most active advocate of organization of the employees. Of course, any application for reemployment by Johnson under these circumstances would have been futile; indeed the Company makes no point of his failure to do so.'° Arnold was employed as a truckdriver during the 1957 season, was reemployed in April 1958, and laid off the following November. Around the middle of April 1959, Arnold's request for reemployment was refused by Wysong on the grounds he always griped about short pay, avoided loads, and had a dispute of some kind with Alpers involving repairs to his truck, all of which was denied by Arnold. Alpers admitted that the so-called truck incident was simply a complete misunderstanding between Arnold and himself, while Wysong conceded there was nothing to the charge that Arnold avoided loads. The only instance of griping occurred when Arnold brought up the subject of short pay at one of Wysong's early meetings with the employees. Undoubtedly, Arnold became angry or upset at Wysong's accusa- tions, which admittedly were baseless, and Wysong concluded their conversation by telling Arnold "to let it go," to cool off and come back the following week. Arnold returned to the plant the next week but was informed by the timekeeper that Wysong was busy and he was not certain when Wysong could see him. Arnold told the timekeeper if Wysong wanted him to return to work to call him at home; he then left. Wysong testified he saw Arnold at the plant on the above occasion but he was too busy to see him, that no one told him Arnold had been there and he forgot all about it. Wysong wound up by stating, "Arnold did an excellent job for us," but he did not reemploy him because "we had had this misunderstanding." Wysong's testimony of the circumstances under which he refused to reemploy Arnold is so inconsistent and implausible that it is entitled to little or no weight. In brief, Wysong denied reemployment to an excellent worker because of a mis- understanding. On the basis of his own admissions, I find Wysong gave false reasons to Arnold to avoid reemploying him. Again, when Arnold came to the plant a second time, at Wysong's request, Wysong neglected to meet with him and there- after made no effort whatever to contact Arnold. It is sufficient to state that Wysong's garbled version of Arnold's second trip to the plant and the explanation for his failure to recall Arnold is simply unbelievable. Having found that Wysong knew practically all of the employees, including Arnold, had signed union cards and were engaging in organizational activities, and having found that at the same time Wysong discriminatorily refused, or was refusing, to reemploy other proponents of unionization, I am convinced that his refusal to reemploy Arnold was motivated by the similar unlawful considerations. I so find. Killingbeck worked regularly each season from 1956 through 1958. Around October 18 or 23, 1958, Wysong granted Killingbeck's request to be laid off. In 10 Yutana Barge Lines, Inc., 123 NLRB 1073. PENINSULA ASPHALT & CONSTRUCTION COMPANY 149 the spring of 1959, Killingbeck went to the plant seeking reemployment on several occasions and while he spoke to Mrs. Myer, he did not see Wysong until about April 29. Wysong then stated he understood Killingbeck had quit and he had no job for him. As stated above, Killingbeck drew unemployment compensation in 1958-59, the same as in prior layoff periods , and his insurance was canceled around April 29. Wysong refused Killingbeck 's request for reemployment in April 1959 for the reason that he had not planned on Killingbeck's returning to work and he had no job available for him. Granting that Killingbeck, in December 1958, may have said he did not intend to return in the spring , his subsequent application for reemployment clearly proves he changed his mind in that respect . I see nothing unusual in his action Certainly Wysong knew Killingbeck desired employment and his refusal to reemploy him on the ground he had no job for him is flatly con- tradicted by Wysong's own testimony as well as company records . Thus, the evi- dence shows that a new truckdriver , Eckerdt, was hired on April 28, the day before Killingbeck's insurance was canceled , and another new driver , Zang, was hired on May 9. Accordingly, I find the Company had an available job for Killingbeck at or about the time he requested reemployment . In view of these findings, I attach no importance to any inconclusive conversations Killingbeck might have had with Mrs. Myer or Wysong about renting a truck to the Company, or that Killingbeck may or may not have had a chronic back condition . For the reasons stated in respect to the Arnold case, I find Killingbeck was discriminatorily refused reemployment in April 1959. From the foregoing findings I further find that the Company's uniform refusal to reemploy the above-named individuals for pretexted reasons, at the same time it was refusing to bargain with the certified representative of its employees, was moti- vated by a desire to remove the discriminatees from its employ and to discourage employees from becoming or remaining members of the Unions or participating in organizational activities for the purpose of collective bargaining . By so doing the Company violated Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(5) and ( 1) of the Act, I shall recommend 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, by refusing to reemploy John R . Harrand, Lawrence Haines, Paul Johnson, Harry G. Arnold, and George E. Killingbeck, dis- criminated against them in respect to their hire and tenure of employment in viola- tion of Section 8(a)(3) of the Act. I shall, therefore , recommend that the Re- spondent cease and desist therefrom and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act . I shall recommend that the Re- spondent offer to John R. Harrand, Lawrence Haines, Paul Johnson, Harry G. Arnold, and George E. Killingbeck immediate and full reinstatement to their former or substantially equivalent positions," consistent with its seasonal operations, with- out prejudice to their seniority or other rights and privileges . I shall further recom- mend that the Respondent make whole each of the above -named individuals for any loss of earnings they may have suffered because of the discrimination against them, by payment of a sum of money equal to the amount each normally would have earned as wages from the date of his discrimination to the date of the offer of reinstatement , less his net earnings during said period, with backpay computed in the customary manner.12 I shall further recommend that the Board order the Respondent to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of backpay due and the rights of reinstatement. 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 12 Crossett Lumber Company, 8 NLRB 440, Republic Steel Corporation v. N.L R.B., 311 U S. 7, F W. Woolworth Company, 90 NLRB 289. 150 DECfSIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Peninsula Asphalt & Construction Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Each of the Unions named herein is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in the Company 's paving and plant operations, exclusive of office clerical employees , watchmen, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The Unions, by virtue of the certification issued by the Michigan Labor Media- tion Board, were on October 24, 1958, and at all times thereafter have been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Unions as the exclusive bargaining representative of the employees in the aforesaid appropriate unit , as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By unilaterally granting wage increases to employees in the bargaining unit without notifying or negotiating with the exclusive representative of the employees, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act. 7. By refusing to reemploy John R. Harrand, Lawrence Haines, Paul Johnson, Harry G. Arnold, and George E. Killingbeck,.the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 8. By the foregoing conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of their fights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Norrich Plastics Corp. and Local 517, International Production, Service & Sales Employees and Norrich Plastics Employees Union, also known as Collective Bargaining Committee, Party to the Contract. Case No. 9-CA-6535. April 12, 1960 DECISION AND ORDER On December 18, 1959, Trial Examiner A. Bruce Hunt issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, and further finding that the Respond- ent had not engaged in other unfair labor practices alleged in the com- plaint, all as set forth in the copy of the Intermediate Report-attached hereto. Thereafter, the General Counsel and Respondent filed ex- ceptions to the Intermediate Report and supporting briefs. 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 Leedom and Members Bean and Fanning]. 1127 NLRB No. 25.