Weingarten Food Center of Tenn., Inc.

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weingarten Food Center of Tenn., Inc. and Retail Clerks Inter- national Association, Local Union No. 1529, AFL-CIO. Case No. 26-CA-1192. December 26, 1962 DECISION AND ORDER On May 4, 1962, Trial Examiner Phil Saunders issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Union t filed exceptions to the Inter- mediate Report, together with supporting briefs. The Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, but only for the reasons set forth below. On October 14, 1962, Respondent sold five of its six stores in the Memphis, Tennessee, area, and terminated the employment of all its employees at these locations. Respondent did not bargain with the Union 2 about its decision to sell the five stores in question, but did, on October 14, seek to discuss with the Union its plans for granting sev- erance pay to the employees, and for rehiring certain of them at its sole remaining store. Respondent requested the Union's help in deter- mining the seniority of the employees involved, as well as their fitness for various jobs, and in avoiding other mistakes relative to the trans- fers. The Union did not dispute Respondent's arrangements, but re- fused to offer its assistance, as requested. The complaint alleges that Respondent violated Section 8 (a) (1) and (5) by the aforesaid conduct. The Trial Examiner found no unlaw- ful refusal to bargain, and therefore recommended dismissal of the complaint. 1. For the reasons set forth in Member Rodgers' dissent in Town J, Country Manufacturing Company, Inc., et al.' Member Rodgers 1 We find the Union's motion to reopen the record to be without merit. z Retail Clerks International Association, Local Union No. 1529, AFL-CIO, the Charg- ing Party herein, had been certified in 1954 as collective-barraiuinr representative of Respondent's employees in an appropriate unit. 3136 NLRB 1022. 140 NLRB No. 25. WEINGARTEN FOOD CENTER OF TENN., INC. 257 agrees with the Trial Examiner's conclusion. He would, therefore, like the Trial Examiner, dismiss the complaint in its entirety. 2. Member Fanning would also dismiss the complaint, but for dif- ferent reasons. Member Fanning, like his dissenting colleague, is of the view that an employer must bargain with the representative of its employees about a decision to discontinue operations.' However, the General Counsel did not argue such a violation before the Trial Examiner in this case, and specifically declined to take exception to the Trial Examiner's finding on this point, in his brief to the Board 5 Under these circumstances, Member Fanning does not believe he should find a violation based on the Town c Country rationale, or consider such conduct in passing on Respondent's alleged refusal to bargain. The General Counsel is, under the Act, given final authority in the prosecution of complaints before the Board.6 He chose to re- move this theory of the complaint from the Trial Examiner's con- sideration prior to the preparation of the Intermediate Report, and now states that, under these circumstances, he deems it "inappropriate" to file a specific exception to this finding. Granted that this case, properly framed, might well warrant application of the Town & Country rationale, Member Fanning does not believe the Board should consider or apply this theory sua sponte-as the dissent appears to do, or as the General Counsel at one point seems to urge. Such an ap- proach would, in Member Fanning's opinion, not give the Respondent adequate notice as to the theory on which the General Counsel is try- ing this case, and would deprive Respondent of the normal opportunity to litigate or argue its position before the Trial Examiner and the Board. Member Fanning does not, therefore, find Respondent re- fused to bargain about its decision to sell, without in any way agree- ing with the Trial Examiner's disposition on the merits of this issue? Nor would Member Fanning find that Respondent refused to bar- gain concerning the effects of its business disruption. As noted above, Respondent informed the Union of its plans to transfer employees and grant severance pay, and requested assistance from the Union. The Union declined to offer assistance, and made no request of its own for further bargaining. In these circumstances, Member Fanning finds that Respondent has satisfied its obligation to meet and bargain with the Union, in the respects covered by the complaint and the excep- * See Member Fanning's position in the original Fibreboard Paper Products Corporation decision, 130 NLRB 1558, and in the reconsidered decision , 138 NLRB 550, as well as his position in Town & Country, supra. 5The General Counsel states in his brief : "General Counsel made no contention to the Trial Examiner that Respondent was under a statutory obligation to bargain as to its decision to sell five of its stores and discharge its employees Having taken this posi- tion, it was deemed inappropriate to file a specific exception to the failure of the Trial Examiner to find a violation in Respondent's omission to bargain concerning its aforesaid decision." 6 See Section 3(d) of the Act. 7 See Colonial Fashions, Incorporated, 110 NLRB 1197, 1198. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. He therefore agrees with Member Rodgers' conclusion to dis- miss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER BROWN, dissenting : I dissent from the majority decision dismissing this case. The dis- missal is not warranted by the facts and is contrary to applicable law. The Union has been the certified bargaining representative of Re- spondent's employees since 1954. Its last contract with the Respondent was due to expire on June 19, 1961. Negotiations for a contract to cover Respondent's stores in the Memphis area began on May 30, 1961. On August 16, after five bargaining sessions, Respondent re- quested, and the Union agreed to, a 30-day suspension of negotiations. Bargaining was resumed on September 21. On September 29, Re- spondent entered into a contract to sell five of the six stores compris- ing the unit represented by the Union. The negotiations for the sale of these stores took place while collective-bargaining negotiations were in progress. Also during this period, the Union's chief negotiator asked Respondent's bargaining representative, who was Respondent's director of personnel and industrial relations, about then current rumors that Respondent was going to sell the stores in question and was assured by the mentioned Respondent representative that he was without knowledge of any such move. On October 7, the Union and Respondent signed a collective-bargaining agreement incorporat- ing the terms agreed to on September 21. On October 14, the Re- spondent executed the final documents for the sale of the stores. Re- spondent then advised the Union's negotiator of the sale of the stores and handed him a document addressed to the employees of the five mentioned stores notifying those employees of their termination as of the close of the day (October 14) and of the fact that they would receive, together with their final paycheck, an additional check as a token of appreciation for past services. Respondent asked the Union to assist in the selection of employees who would continue as employees in the single remaining store but the Union refused assistance in this connection. The October 7 contract contains no provisions for sev- erance pay. These facts, in my opinion, call for a finding that Respondent did not fulfill its duty to bargain under the Act. For Respondent's con- duct at every turn was the very antithesis of its bargaining obliga- tion under the Act. Thus, while in the process of concluding an agreement with the Union purporting to cover six stores, Respondent was busily engaged in negotiating the sale of five of the stores. When the Union sought to ascertain the truth or falsity of rumors about an impending sale of the stores, the true situation was withheld from it. Successful in concealing the facts, Respondent proceeded to dis- WEINGARTEN FOOD CENTER OF TENN., INC. 259 pose of the five stores without any consultation with the bargaining representative of the affected employees. The sale was then an- nounced to the Union as a fait accompli, without opportunity af- forded to bargain as to its effect upon employees. Respondent sought only to involve the Union in the selection of the employees who should be retained. No assistance was solicited for determining the fate of those more seriously affected by the sale of the stores, namely, those who were to be terminated at the close of the day. Their fate, like the sales contract, had been unilaterally sealed when announced to the Union. Clearly, Respondent's entire course of conduct was lacking in good faith, beginning with its undercover negotiations to sell the. stores, proceeding to the unilateral disposition of the stores, and con- cluding without a bona fide, timely invitation to the Union to con- sult about the sale's effect upon employees. Unlike my colleague, Member Fanning, I do not consider myself precluded from relying upon the unilateral decision to sell the stores in passing upon the allegations of the complaint. The complaint al- leges that Respondent violated Section 8(a) (5) of the Act since about September 27, 1961, because at no time prior to selling the stores, and not even while negotiating a contract with the Union, did Re- spondent consult with or even advise the Union of the impending sale and also because Respondent terminated the employment of its em- ployees and paid them severance pay without notice to or consulta- tion with the Union. The evidence adduced at the hearing in con- nection with these allegations of the complaint amply support such charges. In fact, the sale of the stores without consultation with the Union was a fact admitted by Respondent. With full under- standing that this was an issue posed by the complaint, the Respond- ent, in its brief to the Trial Examiner, contended that it did not thereby violate the Act because the cases "clearly establish that an employer does not violate Section 8(a) (5) of the Act by refusing to negotiate with a Union regarding the sale of its business if such sale is made for bona fide reasons." Respondent's position, like that of Member Rodgers herein, does not, of course, accord with the Town & Country line of cases which should govern the disposition of this case. In his brief to the Trial Examiner which followed the hearing and development of the record described above, the General Counsel, re- lying upon the original Fibreboard decision, chose not to argue that Respondent was required to consult with the Union about its decision to sell the five stores. Having assumed that position, the General Counsel has deemed it "inappropriate" to file a "specific" exception to the Trial Examiner's failure to base a violation upon Respondent's unilateral decision to sell. At the same time, the General Counsel has filed exceptions to the Trial Examiner's failure to conclude that Respondent engaged in the unfair labor practices alleged in the com- 681-49 2-63-vol. 140--18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint. And he argues that his failure to file a "specific" exception should not preclude the Board from finding, consistently with Town cl3 Country, that Respondent violated Section 8(a) (5) by its failure to consult with the Union with respect to the sale of stores. In addition, he continues to insist that the circumstances attending the sale of the stores pointedly demonstrate Respondent's lack of good faith during bargaining. Faced with these facts, I cannot find that the matter of Respondent's unilateral decision to sell has been removed as an issue in this case. On the basis of the foregoing, and under applicable legal principles, I dissent from my colleagues' failure to hold the Respondent in vio- lation of Section 8(a) (5) as alleged in the complaint. INTERMEDIATE REPORT STATEMENT OF THE CASE The unfair labor practice charges on which the complaint herein is based were filed on December 11, 1961, and January 31, 1962, respectively. The complaint was issued on January 26, 1962, and an amendment to the complaint was issued on February 1, 1962. This case was heard by Trial Examiner Phil Saunders at Memphis, Tennessee, on March 6, 1962. The General Counsel and Weingarten Food Center of Tenn., Inc., herein called the Respondent or the Company, were represented by counsel, and all parties participated fully in the hearing. Both the General Counsel and the Respondent submitted briefs, and they have been duly considered by me in arriving at my findings and recommendations herein. It is alleged in the complaint that on or about September 27, 1961,' Respondent entered into negotiations for the sale of five of its seven stores in the Memphis area, and that the sale of these stores was then consummated on October 14; and that on October 14 the Company terminated the employment of all its employees and paid them a week's wages as severance pay. It is also alleged in the complaint that prior to and during the Respondent's negotiations for the sale of its stores, the Company and the Union were engaged in negotiations for a new collective-bargaining agreement, and that a bargaining contract between the parties was executed on October 7. It is further alleged by the General Counsel that at no time prior to the sale of its stores did the Company notify, consult, or advise the Union of the sale or give the Union an opportunity to meet and discuss conditions of employment, that the Respondent terminated employees without notice or consultation with the Union, and that since September 27 the Company, by these acts, has refused to bargain collectively with the Union as the exclusive bargaining representative. All of such conduct is alleged to be in violation of Section 8(a)(5) and (1) of the National Labor Relations Act. The Respondent's answer denies all of the alleged violations. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Since the allegations of the complaint of the facts upon which the jurisdiction of the Board is predicated are admitted in the answer, I find that during the past 12 months, the Respondent, in the course and conduct of its business operations, had a gross volume of business in excess of $500,000 from the sale and distribution of its products. During the same period the Respondent received goods valued in excess of $10,000 directly from suppliers located outside the State of Tennessee. I find, therefore, that the Respondent is engaged in "commerce" and in operations "affecting commerce" as those terms are defined in Section 2(6) and (7) respectively, of the National Labor Relations Act, as amended, herein called the Act, and that it will effectuate the policies of the Act to assert jurisdiction over the Respondent. 1 All dates herein are 1961 unless specifically stated otherwise. WEINGARTEN FOOD CENTER OF TENN., INC. 261 II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, Local Union No. 1529, AFL-CIO, herein called the Union, is a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background, events, and issues The record in this case establishes that in 1954 a majority of employees, in a properly designated unit, selected the Union as their representative for the purpose of collective bargaining, and that the Union shortly thereafter was so certified by the Board. The record further reveals that in a period prior hereto the Company and the Union had a collective-bargaining agreement covering Respondent's retail grocery stores located in Memphis, and which contract expired on June 19, that the parties commenced negotiations on a new collective-bargaining agreement on May 30, and that such negotiations continued until September 21 .2 It was also established that: M. M. Rochester, Respondent's director of personnel and industrial relations, represented Respondent in all such meetings, and that Leon Sheppard, the Union's secretary-treasurer, represented the Union in all such meetings; the final negotiation meeting was held in the presence of a mediator from the Federal Mediation and Conciliation Service on September 21; and a complete agreement was reached by the parties on all contract provisions to be included in the contract during this meeting on September 21. The contract was finally executed and signed on October 7 in accordance with the terms reached during the meeting of September 21. It was also established that: On September 29 the Company and the Pic-Pac Food Stores, Inc., entered into an earnest money contract for the proposed sale of five of the Respondent's six stores; 3 on October 14 the Company notified the Union that it had sold five stores to Pic-Pac; the Company retained certain employees which were needed for the operation of its one remaining store; and the Company paid all em- ployees terminated a severance pay in an amount equal to 1 week's wages. The General Counsel does not contend that the Respondent was required to bargain collectively about the decision to sell its five stores. Certainly it is well-settled law that the establishment by the Board of an appropriate bargaining unit does not pre- clude an employer, acting in good faith, from making certain changes in his business structure without first consulting the representative of the affected employees. There is no real issue here in this respect and, as aforestated, it is conceded that the Com- pany had this right. However, the General Counsel does contend that the Re- spondent's notification to the Union and the employees on October 14 relative to the sale of its five Memphis stores, and the announcement, in a written and previously prepared letter, that the Respondent would give employees severance pay upon their termination, were unilateral acts by the Company in violation of the Act. The Gen- eral Counsel further states that the Union was given no real opportunity to bargain with respect to the contemplated change as it affected employment, and that the notification given on October 14 is not the notice contemplated by the Act. The Respondent states in its answer that on October 14, as a result of the sale, and after conferring with the Union, the Company terminated certain employees in accordance with the terms of the collective-bargaining contract entered into on October 7. The Respondent admits in its answer that prior to and during the negotiations for the sale of its stores, the Company and the Union were engaged in the negotiation of a collective-bargaining agreement. However, the Company argues and maintains that an employer's duty to notify the union of any proposed changes in wages, hours, or other terms and conditions of employment, within the meaning of the Act, is satis- fied if the employer notifies the union of such change, and the union acquiesces in the change, and does not request bargaining on the proposed change. B The pertinent testimony, findings, and conclusions in respect thereto This record contains some testimony by witnesses for both sides as to which one of the parties was responsible for the final preparation and typing of the new collective- bargaining contract, and also the reasons and circumstances for the delays and certain other difficulties encountered between September 21, when full understanding as to terms was reached, and October 7, at which time the new agreement was actually 2 The credited testimony shows that negotiation sessions between the parties were held on May 30, June 12 and 19, July 14 and 28, August 16, and September 18 and 21. s Originally the Company had seven stores In the Memphis area, but at some subsequent time one of them was destroyed by fire. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by all parties. There is also testimony that during the periods of negotiations for a new contract, the Union's secretary-treasurer and chief negotiator, Sheppard, had made inquiries of the Respondent's director of personnel, M. M. Rochester, as to circulated rumors coming to Sheppard that the Company was going to sell the stores in question. Rochester then denied having any knowledge as to these rumors, and as- sured Sheppard that he knew nothing about this matter. In this respect the General Counsel argues that the Respondent was carrying on collective-bargaining negotiations with the Union, and at the same time the Company was engaged in negotiations with Pic-Pac for the purpose of selling most of its stores in the bargaining unit. As far as I am able to ascertain, this testimony is not directly material to the real issue in dis- pute. The Respondent admits that, prior to and during its sale negotiations, the Com- pany and the Union were engaged in collective-bargaining negotiations for a new contract. Moreover, the General Counsel does not contend that the Respondent was required to bargain about the decision to sell its stores. If this testimony has any value at all in this proceeding, it must be considered as background to the events that sub- sequently transpired. I will now consider the testimony and arguments that the Respondent's conduct on October 14, as previously stated, violated the Act. The Union's Secretary-Treasurer Sheppard testified that on the morning of Octo- ber 14 he met with the Respondent's Division Manager Jack Weingarten, and that Weingarten then told him that the Company was planning on selling some of its stores in the Memphis area, but that the Company would keep store "No. 7." Sheppard testified that Weingarten also informed him that: He had a "schedule" made out for the employees who would go to store No. 7; there were approximately 50 employees on this schedule, but that Weingarten did not show Sheppard the schedule. Sheppard further testified that Weingarten then told him that the Company did not need the other employees, Weingarten asked Sheppard for a letter to terminate these em- ployees, and Sheppard informed Weingarten that the Company and the Union had a contract to go by. Sheppard testified that nothing was said at this meeting relative to severance pay to employees, and that he first learned of this matter on the afternoon of October 14 when he was present at one of the stores. Sheppard stated that on October 19 or 20 he was informed by the Respondent's Director of Personnel Rochester that Pic-Pac was going to keep the company employees. Under cross- examination Sheppard agreed that the contract of October 7 is the present bargain- ing agreement under which the employees at store No. 7 are now being employed. Respondent's Division Manager Weingarten credibly testified that on October 14 he discussed with Sheppard a letter from the Company to employees notifying them of the sale of the stores, and that he handed Sheppard a copy of the same.4 Wein- garten further stated that: He also informed Sheppard that the Company was retain- ing store No. 7; Weingarten then requested Sheppard's help in the staffing of this store; he informed Sheppard that this was going to be a difficult and tedious job in going through the seniority roster and selecting the employees; the Company would be operating within the framework of the existing October 7 contract; and Weingarten needed as much help as he could get on this matter. Weingarten also testified that he explained to Sheppard on this occasion the final paycheck, and the severance pay the employees would receive, and that Sheppard registered no disagreement over these arrangements. Weingarten stated further that: He had the work schedule on his desk; he handed Sheppard the seniority roster; he definitely requested and needed as- sistance from Sheppard in placing employees on the seniority roster within the work schedule; he wanted to minimize any mistakes; and he wanted to determine which employees were deserving of particular jobs in store No. 7, but Sheppard denied the Union's assistance and help. C. Concluding findings The Board stated in Great Falls Employers' Council, Inc., Retail Food Dealers Division, and Its Member Employers, etc., 123 NLRB 974, at 983, that where the union acquiesces in the unilateral employer action that such unilateral conduct does not constitute a refusal to bargain. In the Great Falls decision, inter alia, the cotti- pany involved therein advised the union by letter that the company withdrew assent * The letter was addressed to all store employees, and informed them, inter alia, that their employment with the Company would be officially terminated on October 14, as the stores had been sold to Pic-Pac. The employees were further informed that along with their final paycheck they would also receive an extra check as a token of appreciation for loyal service. The letter concluded by stating that further arrangements would be out- lined by the store managers, and that the managers would also give them information regarding interviews with the new owner. See Respondent's Exhibit No. 1. WEINGARTEN FOOD CENTER OF TENN., INC. 263 to the terms of the old, expired contract, and then issued a written notice of recall to locked-out employees. The reemployment was offered under the terms and conditions set forth in the letter to the union, which eliminated any guaranteed minimum hours per workweek or workday. The Board held that under these circumstances the union was fully apprised of the unilateral action of the company, declined to request bargaining about this matter, and acquiesced therein by expressly instructing the employees to accept, and that accordingly such conduct was therefore not a refusal to bargain. In General Electric Company, 127 NLRB 346, the company involved therein offered, by letter, to meet with the union and to discuss and explain a new program. In reversing the Trial Examiner the Board stated that even if they adopted the letter as merely an offer to discuss changes in the program, in the absence of any effort by the union to seek to broaden the scope of the discussions, the Board would be un- willing to conclude that such effort would have been futile. The Board further stated that the union did not seek a meeting with the company although the company offered to meet and discuss the program, and held that the mere announcement of the program did not violate Section 8(a) (5) or (1) of the Act.5 Division Manager Weingarten, a credible witness, testified that in his discussion with the Union's Secretary-Treasurer Sheppard on October 14, he explained to Sheppard the 1 week's severance pay the employees would receive, and over which Sheppard registered no disagreement.6 Weingarten initially also informed Sheppard of the sale of five stores and that the Company was retaining store No 7, that a copy of the letter addressed to employees was given to Sheppard, and that Weingarten then asked and requested Sheppard's help and assistance in placing employees on the seniority roster for the work schedule relative to the staffing of store No. 7.7 Sheppard stated that the assistance Weingarten requested of him was the signing of a proposed letter terminating the employees. This testimony by Sheppard I do not believe as there is no substantiating or credited testimony whatsoever in this respect. The General Counsel contends in its brief that the above communications on Octo- ber 14 by the Company to the Union were not the type of notices or bargaining con- templated by the Act, and that on the date in question the notifications to the Union were fait accompli, and the Respondent, therefore, violated its duty to bargain in good faith. While the record here is clear that the Company prepared the letter to employees with the severance pay provision in it without first consulting the Union, nevertheless, under all the circumstances, and considering the record as a whole, I fail to find any violation under existing Board law. In the final analysis here the credited testimony conclusively shows that the Union was afforded the opportunity to help and assist the Respondent in the proper assignment of the remaining employees in the unit to store No. 7. As far as I can ascertain by this record, the Union never objected to the ar- rangements nor did it register any disagreements on the general or detailed plans an- nounced in the letter sent to employees, and then discussed with Sheppard on October 14, as aforestated. While there is factual basis in the General Counsel's argument that the action taken by the Company was previously determined and afforded the Union no opportunity to initially present its position, nevertheless, the evidence still discloses that the Union fully accepted the prepared announcement by the Company, and by so doing never subjected the arrangements to a give-and-take discussion stage, and certainly the Respondent openly invited suggestions and assistance from the Union. Thus, the Union was fully apprised of the unilateral action by the Company, and acquiesced therein. Furthermore, even if I adopted the General Counsel's contention that the notification to the Union on October 14 was "fait accompli," in the absence of any effort by the Union to even seek discussions or to broaden the scope of the arrangements for terminations, I am unwilling to conclude on the basis of this record that such effort would have been futile. I find that the Company, in a manner deemed adequate, did notify the Union of its intention to make changes, and the Union ignored or did not accept this communication. Under these circumstances, no basis exists for holding that the Respondent in proceeding to make the changes in question thereby refused to bargain with the Union, and accordingly did not violate Section 8(a) (5) and (1) of the Act 6 See also Mitchell Plastics, Inc., 117 NLRB 597, 600; and L. L. Majure Transport Company, 95 NLRB 311, 316. 6 The record reveals that the collective-bargaining contract of October 7 did not contain any provisions as to severance pay. 'The collective-bargaining contract signed by the parties on October 7 contained a seniority clause, General Counsel's Exhibit No 2. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2•(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in this case, it is recommended that the complaint herein be dismissed. Little Rock Hardboard Company and International Brotherhood of Pulp, Sulphite and Paper Mill Workers , AFL-CIO Superwood Corporation of Duluth and International Brother- hood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO. Cases Nos. 26-CA-1208, 26-CA-1222, and 26-CA-1259. Decem- ber 26, 1962 DECISION AND ORDER On September 10, 1962, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Intermediate Report. Thereafter, the General Counsel-filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the General Counsel's exceptions and brief, and the entire record in these cases, and, as it finds merit in some of the General Counsel's exceptions, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent con- sistent herewith.' 1. The Trial Examiner found no violation of Section 8 (a) (1) of the Act on the ground, in part, that the shift leaders, some of whom were charged with conduct violative of that section, were not super- visors within the meaning of the Act. We do not agree. 'A substantial portion of the Intermediate Report consists of extensive quotations from the record and the briefs of the parties for the purpose of setting forth the facts and the issues of these cases. It does not appear that this practice has resulted In prejudice to any of the parties . Nevertheless , we do not believe that an Intermediate Report which recites and adopts to this unusual extent the allegations of the adversaries in this pro- ceeding is a desirable exercise of the Trial Examiner's function to provide the Board with his own recitation of the facts and the reasons for his recommended findings. 140 NLRB No. 26.