Dubo Manufacturing Corp.

DUBO MANUFACTURING CORPORATION 1073 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant in Momence, Illinois, copies of the attached notice marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of Respond- ent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices 'are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps Re- spondent has taken to comply herewith.is 17 If this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order" for the words "a Decision and Order " Is In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor 'Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: ALL OUR EMPLOYEES have the right to form, join, or assist any labor union and to designate any labor union, including Independent Workers Union of America, as their collective-bargaining representative, or to refrain from form- ing, joining, assisting, or designating any labor organization. WE WILL NOT threaten to discharge any employees because any employees or discharged employees proposes to file, or files, any charge against us with the National Labor Relations Board. WE ALSO WILL NOT threaten to withhold a Christmas bonus from our em- ployees or threaten them with discharge on account of their desire to designate, or their designation of, any labor organization as their collective-bargaining representative. U.S. PERLITE CORP., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or com- pliance with its provisions. Dubo Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Case No. 8-CA-2882. September 16, 1964 DECISION AND ORDER On January 30, 1963, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding finding that 148 NLRB No. 96. 760-577-65-vol. 148-69 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a supporting brief. 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 In- termediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, Dubo Manufacturing Corporation, its officers, agents,, successors, and as- signs, shall take the action set forth in the Trial Examiner's Recom- mended Order, with the following added to paragraph 2(a) thereof: "Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." MEMBER BRowN took no part in the consideration of the above Decision and Order. I On February 25, 1963, and again on October 9. 1963, the Respondent moved the Board to consolidate this case with Cases Nos 8-CA-2700 and 8-CA-2820. The motions have been denied in footnote 10 of the Supplemental Decision and Order Issuing this same date in Uubo Manufacturing Corporation, 148 NLRB 1114 INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding was heard before Trial Examiner John H. Eadie at a hearing in Akron, Ohio, on November 6, 1962. The issue presented by the pleadings is whether Dubo Manufacturing Corporation, herein referred to as the Respondent, violated Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act.' At the conclusion of the case the General Counsel and the Respond- ent argued orally on the record. The Union filed a brief with the Trial Examiner. . Upon the entire record and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation, with its principal office and place of busi- ness located in the city of Akron, Ohio, where it is engaged in the manufacture, sale, 1 The charge was filed on August 14, 1962. The complaint was issued on Septem-- ber 28, 1962 DUBO MANUFACTURING CORPORATION 1075 and distribution of metal products. During the year 1961, the Respondent, in the course and conduct of its business operations at Akron, Ohio, has caused to be sold and transported directly to other manufacturing plants located in Akron, Ohio, prod- ucts valued in excess of $50,000. Each of said other manufacturing plants in Akron, Ohio, annually ships products valued in excess of $50,000 from each of their re- spective Akron, Ohio, locations, in interstate commerce, directly to enterprises located in States of the United States other than the State of Ohio. The complaint alleges, the Respondent's answer admits, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, herein called the Union, is a labor organization which admits to membership employees of the Respondent. M. THE UNFAIR LABOR PRACTICES A. Background In 1955 the Union was certified by the Board as the collective-bargaining repre- sentative of the Respondent's production and maintenance employees . The most re- cent contract between the Respondent and the Union was executed on June 21, 1961, and was in full force and effect from June 9, 1961, to and including June 8, 1962. This contract contained union-shop and dues checkoff clauses. On January 2, 1962, the Respondent had 16 production employees on its day shift. On that day these employees engaged in a walkout. In response to a letter dated January 3, 1962, from the Respondent, on January 4 and 5, all 16 day-shift employees applied to the Respondent for reinstatement. The Respondent reinstated 4 of the employees but rejected the applications of the remaining 12. Thereafter, the Re- spondent hired 25 new employees and recalled 4 employees from layoff. On or about January 31, 1962, the Union filed a charge in Case No. 8-CA-2700 on behalf of the 16 employees. Commencing on or about April 3, 1962, the Union requested the Respondent to bargain collectively for a new contract. The Respondent refused. On or about June 8, 1962, the Union filed a charge in Case No. 8-CA-2820, alleging an illegal refusal to bargain. On July 10 and 11 , 1962, a hearing was held on the consolidated cases before Trial Examiner Sidney Sherman. On August 28, 1962, Trial Examiner Sherman issued his Intermediate Report. He found that the 16 employees had been discharged on January 2, 1962, in violation of Section 8(a)(3) and (1) of the Act, and recom- mended the usual reinstatement order. In connection with the majority status of the Union, Trial Examiner Sherman found as follows: As I have found above that the 16 day-shift employees were discriminatorily discharged, it.is clear that they did not cease to be employees of the Respondent under the Act, and that they were therefore entitled at all material times there- after to be counted for the purpose of determining the Union's majority status. By the same token, any employees hired to replace them may not be counted as either for or against the Union. . The record shows that on April 3 Respondent had not more than 18 em- ployees, including 2 of the 4 reinstated day-shift employees, and 2 of these 3 night-shift employees who had been transferred to the day shift on January 4. Of these 18 employees, 10 had been hired to replace an equal number of the 12 discharged employees who were not reinstated, and so may not be considered as members of the bargaining unit for the purpose of determining the Union's majority status. There remain eight employees, of whom four (Fricke, Spanos, Bowers, and Gibbs) admittedly were union members prior to January 2 and not subjected to employer coercion to join the Union. Thus, of the 18, there remain only 4 who' may be counted as against the Union . On the other hand, it is proper to count as for the Union the 4 bona fide members actually employed on ,April 3 and the 12 dischargees who were not reinstated-a total of 16 for the Union. (Furthermore, even if all employees hired, or recalled from layoff, after January 2 were considered as entitled to be counted, the Union would still have a majority on April 3. The 18 employees on the payroll on that date, less the 4 bona fide union members named above, would represent a maximum of only 14 against the Union as compared to the foregoing total of 16 bona fide union members. ) I find, therefore, that on April 3 and at all relevant times thereafter the Union represented an uncoerced majority of Respondent's employees. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner Sherman also found that since April 3, 1962, the Respondent re- fused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act: Concerning the refusal to bargain, he found as follows: It is undisputed, and I find, that on April 2 the Union requested the Respond- ent to bargain with it concerning the terms of a new contract, that on April 10 Bollas, in reply to this request, advised the Union that Respondent had retained Rector to represent it and requested the Union to communicate with him; that on May 8 the Union wrote Rector, suggesting a meeting on or about May 14; that on May 14 Rector replied, expressing the belief that no meeting would be productive until after the disposition of the pending court action and the charges in Case No. 8-CA-2700, and suggesting that until then "the situation remain status quo"; that on May 21 the Union wrote Rector, asking him to clarify his position by stating whether he was prepared to meet with the Union notwith- standing the pending litigation; and that on May 25 Rector answered in effect that his previous letter needed no clarification. It is clear from the foregoing, and the Respondent's answer to the complaint admits, that the Respondent refused to bargain with the Union because of the pendency of the Board proceeding in Case No. 8-CA-2700 (as well as the court action). It is well settled that this is not a valid reason for refusing to bargain. The letters between the Union and the Respondent, involved in the above find- ings of Trial Examiner Sherman, also were received in evidence in the instant proceeding. Although the Respondent in its answer in this case denies the allega- tion of the complaint to the effect that the Union at all material times herein has been the exclusive representative of all employees in the appropriate unit, it stipulated (1) "that at all times during the term of the collective bargaining agree- ment . . . the Respondent herein, has checked off Union dues for all of its pro- duction and maintenance employees during the term of their employment pursuant to the terms of Respondent's obligation to do so, which obligation is set forth in Article 2, 'Union shop and check-off,' of said collective bargaining agreement," and (2) "that the Respondent never at any time inferred or contended that the Union was not the sole bargaining agent clear up to the expiration of the contract, as of June 8, 1962." B. The strike At a meeting of the Union held on June 5, 1962, the approaching termination date of the current contract between the Union and the Respondent was discussed. The "negotiating committee," consisting of employees Victor Lazoran, Sr., Joseph B. Scullen, and Edward Nesit, was given the power to call a strike "if the Corn- pany did not negotiate or work something out accordingly." Another meeting of the Union was held about 5 p.m. on June 8. All of the Respondent's employees with the possible exception of Hollie Lansberry attended the meeting. There was a discussion about what should be done "since the Company did not negotiate the contract." All of the employees except Alan Stephenson voted to strike "because the Company would not negotiate or even talk with us about a new contract." Picketing of the Respondent's plant commenced about 12:30 a.m. on June 9, 1962.2 Between June 13 and July 24, 1962, the Respondent replaced the strikers by hiring 13 new employees. At the hearing herein it was stipulated between the parties that employees Samuel H. Bauer, Glenn Elzholz, George Jodon, Lawrence Wright, Clarence H. Bowers, Hollie Lansberry, Victor Lazoran, Jr., Edwin L. Nesit, Richard Potter, Joseph B. Scullen, and Richard Turner went on strike on June 9. The Respondent refused to so stipulate as to George Passas, who is also named in the complaint as one of employees who engaged in the strike .3 The evidence discloses that Passas was employed on the day shift on June 8 ; that he attended the union meeting held on June 8; 4 that he did not join in the picketing; and that although he came to the vicinity of the picket line, he did not cross it or enter the Respondent's premises. Accordingly, I find that Passas engaged in the strike. 2 Victor Lazoran , Jr., testified without contradiction that as of June 8, 1962 , the Re- spondent had day-shift employees only. 8 At the hearing, Mr. Rector, who appeared for the Respondent, stated that Passas was an employee of the Respondent until June 8 but that Passas "quit and went to New York and he has not been around since." However, the Respondent did not offer any evidence in this connection. * Joseph B. Scullen testified that to the best of his recollection all of the Respondent's employees were present at the meeting . Victor Lazoran , Jr., testified to the effect that all of the employees was present except possibly Lansberry. DUBO MANUFACTURING CORPORATION 1077 On July 27,- 1962, a special meeting of the Union was called. The, members present "voted unanimously to terminate the strike of Dubo, and offered to return to work without a contract." On July 27, William Taggart, a staff representative of the Union, sent the following letter to the Respondent: On behalf of your striking employees and each of them, I hereby an un- qualifiedly and unconditionally offering them and each of them for employment. They wish to return to work at the earliest possible time. All such striking employees are members of this Union and had been on strike in protest against your unfair labor practices as alleged in NLRB Case No. 8-CA-2820. The above letter was received by the Respondent on July 28. On July 30, 1962, employees Clarence H. Bowers, Hollie Lansberry, Victor Lazoran, Jr., Edwin L. Nesit, Richard Potter, Joseph B. Scullen, and Richard Turner "personally presented themselves at the Respondent's place of business and made unconditional offers . to return to their former or substantially equivalent position of employment and that Edgar Wise, the production superintendent of the Respondent, acting for and on behalf of the Respondent, stated that Respondent would not reinstate said em- ployees for the reason that the Respondent had during the pendency of the previous described strike, hired new employees to [replace] said strikers." 5 C. Conclusions In its answer the Respondent admits that "commencing on or about April 3, 1962, and continuously thereafter" it refused to bargain collectively with the Union. In Case No. 8-CA-2820, Trial Examiner Sherman found that the Respondent's refusal to bargain was violative of the Act. The facts upon which Trial Examiner Sherman based the above findings were introduced in the instant case. The com- plaint herein does not allege a violation of Section 8(a)(5) of the Act; nor does the General Counsel seek an 8(a)(5) remedy in this case. He introduced these facts to seek a determination from me that the strike commencing on June 9, 1962, was caused and prolonged by the Respondent's illegal refusal to bargain. It is in this light only that I am evaluating the Respondent's refusal to bargain. Based upon my own independent evaluation of this issue, I have reached the same conclu- sions as found by Trial Examiner Sherman; to wit, that the Respondent's refusal to bargain was violative of the Act. In reaching this conclusion I also independ- ently find that the Union at all times material herein has represented a majority within the unit alleged to be appropriate. The record in the instant proceeding shows conclusively that the strike commencing on June 9, 1962, was caused and prolonged by the Respondent's illegal refusal to bargain. Accordingly, I find that the strike was from its inception an unfair labor practice strike; that by its letter dated July 27, 1962, the Union made an unconditional offer to return to work on behalf of the striking employees; and that the Respondent by failing and refusing to reinstate the strikers 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 connection with the Respondent's operation described in section I, above, have a close, intimate, and substantial relationship 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I has been found that the strike which commenced on June 9, 1962, was caused and prolonged by the Respondent's unfair labor practices and hence was an unfair labor practice strike; that on July 27, 1962, the Union on behalf of the striking em- ployees made an unconditional offer to return to work; and that on or about July 28 and 30, 1962, and at all times thereafter, the Respondent failed and refused to rein- state the strikers. Accordingly, it will be recommended that the Respondent be ordered to offer to the striking employees immediate and full reinstatement to their 5In Its answer the Respondent admits that on or about July 28 and 30, 1962, and at all times since, it has failed and refused to reinstate the strikers. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing if necessary any person hired on and after June 9, 1962, to provide places for the returning strikers .6 It will also be recom- mended that the Respondent be ordered to make the striking employees whole for any loss of pay they may have suffered by reason of the Respondent's refusal to reinstate them by payment to each of them of a sum of money equal to that which each normally would have earned as wages during the period starting 5 days after July 28, 1962, to the date of the Respondent 's offer of reinstatement , less his net earnings during such period , in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sums, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The strike which commenced on June 9, 1962, was caused by the Respond- ent's unfair labor practices , and hence was an unfair labor practice strike. 2. By discriminating with respect to the hire and tenure of employment of Samuel H. Bauer, Glenn Elzholz, George Jodon, George Passas, Lawrence Wright, Clarence H. Bowers, Hollie Lansberry, Victor Lazoran, Jr., Edwin L. Nesit, Richard Potter, Joseph B . Scullen, and Richard Turner, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in un- fair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case , I recommend that Dubo Manufacturing Corporation, Akron, Ohio, its officers, agents, successors, and assigns , shall be ordered to: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization of its employees , by discriminatorily failing and refus- ing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term of condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations , to join or assist the above-named labor organization , or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment 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 I find will effectuate the policies of the Act: (a) Offer Bauer, Elzholz, Jodon, Passas, Wright, Bowers, Lansberry, Lazoran, Nesit, Potter, Scullen , and Turner immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." G At the hearing the Respondent' s representative argued to the effect that in Case No. 8-CA-2700, Trial Examiner Sherman recommended that the Respondent be ordered to offer reinstatement to the 16 employees who he found were discharged on January 2, 1962; that the strikers in the instant proceeding were replacements for said discharged employees ; and that a similar recommendation herein would mean that the Respondent would be required to offer reinstatement to 2 employees for every available lob. The General Counsel contended that this is a matter for compliance. I agree. DUBO MANUFACTURING CORPORATION 1079 (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents for examination and copying all records necessary for the deter- mination of the amount of backpay due under these recommendations. (c) Post at its plant in Akron, Ohio, copies of the attached notice marked "Ap- pendix." 7 Copies of said notice, to be furnished by the Regional Director for Re- gion 8, shall, after being duly signed by the Respondent or its authorized representa- tive, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps it has taken to comply herewith .8 7In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci- sion and Order." e In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization of our employees by failing and re- fusing to reinstate any of our employees, or otherwise discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargain- ing or mutual aid or protection, or to refrain from any or all such activities, ex- cept to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to the following employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. Samuel H. Bauer Lawrence Wright Edwin L. Nesit Glenn Elzholz Clarence H. Bowers Richard Potter George Jodon Hollie Lansberry Joseph B. Scullen George Passas Victor Lazoran, Jr. Richard Turner DUBO MANUFACTURING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 conseuctive days from the date of posting, and must not be altered, defaced, or covered by any other material. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland Ohio, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Delhi-Taylor Refining Division, Hess Oil and Chemical Corpora- tion and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case No. 933-CA-1596. September 16, 1964 DECISION AND ORDER On November 18, 1963, Trial Examiner Ramey Donovan issued his Decision 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 attached Decision . Thereafter the Respondent filed exceptions to the Trial Examiner's Decision, a supporting brief, and a motion to reopen the record. ' The Union filed exceptions to the Trial Examiner's Decision , a supporting brief, and a motion in opposition to the Respondent 's motion to reopen the record. 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 [Chairman McCulloch and Members Fanning 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 Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions , and recom- mendations of the Trial Examiner with modifications noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner, and orders that the Respondent, Delhi-Taylor Refining Division, Hess Oil and Chemical Corporation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : 1 The Respondent's motion to reopen is hereby denied. The Respondent seeks to intro- duce subsequent operating statements to confirm the accuracy of its projection of operat- ing expenses. As the Trial Examiner found, and we agree, that these expenses were not the motivating factor for the April i shutdown , we deny the motion. 148 NLRB No. 117.