Generac Corp.

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Generac Corp. and District Lodge No. 48, International Asso- ciation of Machinists, AFL-CIO. Cases Nos. 30-CA-21 (for- merly 13-CA-5764) and 30-CA-26 (formerly 13-CA-5959). No- vember 20, 1964 DECISION AND ORDER On February 19, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Decision and briefs in sup- port thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein. 1. The Trial Examiner found and we agree that the Respondent violated Section 8(a) (1) of the Act as explained in his Decision.' 2. The Trial Examiner also found that the Respondent violated Section 8(a) (3) of the Act by discharging Jerry Pease and Artyce Friday and by suspending James Jenista. We do not agree with these findings? Jerry Pease: The Trial Examiner found that the Respondent, using a minor incident as a pretext, in fact discharged Pease on June 13, 1963, because of his known union adherence. ,1 Member Leedom does not agree that Foreman Schneck's statement concerning the possibility of layoffs was a threat of employer reprisal violative of the Act. He regards this statement as no more than a permissible expression of opinion concerning one con- sequence which could result from negotiation of a contract providing for departmental seniority. 2 Contrary to his colleagues, Member Brown would adopt the Trial Examiner' s finding that Respondent discriminated against Jenista, Pease, and Friday in violation of the Act. He believes that the majority opinion which follows simply restates facts already fairly recited by the Tiial Examiner and reappraises testimony which was heard by the Trial Examiner and carefully examined by him in the proper context In the Trial Examiner's Decision, he finds a reasoned evaluation of all the evidence which demonstrates that the known union adherence and activity of the complainants, and not the plainly pretextual reasons assigned, motivated Respondent's action against Jenista, Pease, and Friday. 149 NLRB No. 85. GENERAC CORP. 981 The only union activity engaged in by Pease known to Respondent was the wearing of a union button on April 11, 1963, more than 2 months before his discharge, at which time most employees wore such buttons .3 The record also reveals that Pease was warned on more than one occasion for being asleep on the job or for daydream- ing. Shortly before his discharge, he was transferred for nondis- criminatory reasons to work on a "lamination" press when his old job was absorbed into another function. On the day of his discharge, the machine which he was operating jammed, and Pease, in an effort to get the machine in operation again, caused damage to the press. Both a bolt on the press and the dies within the press were damaged, and repairs were not effected until the following day. Assistant Gen- eral Manager Seybold testified that the press in question supplies material for 90 percent of the production line, and a breakdown at that point could shut down the entire plant. On these facts we are unwilling to find that Pease was discharged for unlawful reasons. His discharge without compliance with the "Blue Book" requirements 4 gives rise to a suspicion. However, con- sidering the other evidence, such as the minor nature of Pease's union activity, his work record culminating in his careless destruction of property on June 13, and the fact that Respondent was provided an opportunity for terminating Pease when his job was absorbed else- where, but transferred him to laminating work instead, we are not persuaded by a preponderance of the evidence that Pease was dis- criminatorily discharged. James Jenista: This employee was active on the Union's behalf. A number of employees relied upon the output of the ovenroom which he operated. As of May 20, 1963, slow production in the oven- room was holding up subsequent operations. On May 20, Jenista was given a written warning to the effect that he was: (1) visiting fellow employees while they were working, and (2) consistently fail- ing to meet minimum standards of production. When the warning was given to him, Jenista was told he could do much better, and that it was hoped that he would do so. Jenista only commented that he needed help. Jenista asked his foreman whether or not he was visiting with other employees more than anyone else, and his foreman replied in the negative. After investigation, the first portion of the warning was rescinded, but Jenista was told that his alleged failure 8 His only other union activity disclosed by the record is the securing of an employee's signature on a union authorization card, and there is no evidence of Respondent's knowl- edge thereof. A The Employer's "Blue Book" requires a written warning and suspension preceding dis- charge for incidents such as here involved . The "Blue Book" also provides for immediate dismissal for willful destruction of company property without prerequisite written warn- ing and suspension. 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to meet production standards would be reviewed when a complete time study was made s and that he would have to make a greater production effort. The May 20 warning, insofar as it concerned production, was dis- cussed with the Union on June 25. Jenista's work was observed on a random basis thereafter and, in July, Foreman Schneck again talked to Jenista and accused him of spending too much time outside the ovenroom. On July 18, Jenista was observed talking with an employee. His foreman spoke to him about it. Later the same after- noon he was again observed standing in the ovenroom doorway talk- ing to another employee. - His 2-day suspension followed and was later explained to the Union. In concluding that the suspension was designed to discourage union membership and activity, the Trial Examiner found that the May 20 warning to Jenista was itself issued for an unlawful purpose. But the record does not convince us that this conclusion is warranted. Certainly, the fact that Respondent had, after investigation, with- drawn that portion of the warning relating to "visiting" is no indi- cation of such unlawful motivation. The accusation of failure to meet minimum production standards was based, according to Respondent's explanation, upon time studies that had been made and the subjective analysis by Jenista's supervisor of other functions of his job. Respondent refused to cancel its warning with respect to production, stating that it would be reviewed when a complete time study had been made. But, contrary to the Trial Examiner, it does not follow from this that Respondent had no meritorious reason for issuing the warning. The Trial Examiner also noted that Jenista was "deprived" of the services of a helper before his layoff. However, the record shows that modernization of the ovenroom made the helper dispensable in January 1963, and it in no way indicates that the helper's removal .was designed to embarrass Jenista. The Trial Examiner also found that Jenista was "summarily" sus- pended. In the circumstances described, however, we cannot find such summary action as may give rise to an inference of a discriminatory motivation. And, while the Trial Examiner chose not to believe-the testimony of Respondent witnesses as to the July 18 suspension, or the charts adduced in support thereof, for the reason that all "may well have been fabricated," Jenista's own testimony establishes that he was challenged on July 18 for the very offense attributed to him on May 20 and his innocence in the matter is not established. 5 Time studies were made throughout 1963. At the time Jenista received the warning notice, only a few of his functions had been timed. GENERAC CORP. 983 As in Pease's case , we are not satisfied that the General Counsel .has sustained his burden of proof with respect to Jenista s_ Artyce Friday: The Trial Examiner found that the Respondent seized upon her absence under doctor 's orders as a pretext for ridding itself of a known union adherent and discharged her in violation of Section 8 (a) (3) and ( 1) of the Act. Friday secured permission to absent herself from work on Monday, September 9, 1963, in order to attend to personal affairs. On Sep- tember 9 she called Supervisor Schneck and said that she would be absent the following day. On September 11 Friday 's mother called and informed the Respondent that she was sick and would not report for work that day. On September 13, and again on either Septem- ber 16 or 17, Friday called Schneck to tell him she was still unable to return. On the latter occasion , Schneck advised her that she should apply for a leave of absence,? but, when assured that she would return in a few days, he told her none would be required . Friday returned to work on September 18, but was sent home as she had not acquired a release from her doctor which was mandatory for any absence over 3 days. On September 20 Friday visited the doctor and then called Foreman Schneck to, say that she could not return to work yet. Schneck told Friday to keep him informed.8 - At the September 23 meeting with the Union , management repre- sentatives inquired about Friday and stated that she was in trouble and that the Union should do something about it. On September 24, after another visit to the doctor, Friday again called Respondent to advise that she was not ready to return. She was told that a letter, which could not be retracted, had been sent notifying her that her failure to report back with a doctor 's certificate after September 18 "leaves ..: no alternative but to conclude that unless you come in and present some other condition or circumstance ... your name will be dropped from our employment list." At the September 30 meeting with the Union, Respondent announced that Friday was being taken off the payroll .9 Later, during the first week in October, the chairman of the employee negotiating committee was advised of Friday's removal because of "excessive absence without leave." On October 7, a union committeeman arranged a meeting between Respondent and Friday but Friday did not appear. It was e The Trial Examiner also asserts as evidence that Jenista was a satisfactory employee, that he received periodic wage increases The record, however, reflects only one wage in- crease which was occasioned by a job reevaluation 7 Respondent 's "Blue Book" requires a written leave of absence for any absence likely to exceed 2 weeks. s After the hearing the Respondent moved to reopen the record to offer evidence that Friday did not visit the doctor between September 13 and 23, 1963. Due to the nature of our decision herein , no purpose would be served by granting such motion , and the Tiial , Examiner's denial thereof is hereby affirmed. s About a week earlier at the Respondent's behest, Union Agent Johns called Friday in an unsuccessful effort to resolve the problem. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not until October 29, 13 days after she was released by the doctor, that Friday presented herself for work. She was told she had been replaced. The Trial Examiner's conclusion that Friday was the victim of discrimination rests mainly upon his subsidiary finding that Friday had frequently informed the Respondent of her doctor's unwilling- ness to permit her to return. However, Respondent's rules, while permitting sick leave, require an employee whose illness is likely to exceed 2 weeks to secure a leave of absence, which Friday at no time sought. No disparity of treatment as to Friday has been shown. Moreover, we do not believe that a showing of discrimination has been made as to Friday in the circumstances . related, particularly taking into account Respondent's willingness indicated above to return Friday to work and its efforts to secure her return. 3. We agree with the Trial Examiner's finding that Respondent refused to bargain with the Union in violation of Section 8(a) (5) of the Act. In so concluding, we rely upon all the factors recited by the Trial Examiner in this connection except as follows. We do not agree with the Trial Examiner's conclusion (section F, 1, paragraph (g), and section F, 2, paragraph .(d)) that the Respondent violated Section 8(a) (5) of the Act by conditioning the use of the plant bulletin board upon the Union's relinquishment of the right to dis- tribute union literature on company premises; 10 and, further, we do not agree with his reliance in finding that Respondent refused to bargain in good faith upon his holding (which we are not adopting) that Respondent discriminated against Jenista and Friday in viola- tion of Section 8(a) (3) of the Act.11 (See Trial Examiner's Deci- sion, section F, 2, paragraph (f).) In agreement with the General Counsel, however, we find that Respondent's unilateral acts of June 14 in reducing working hours and of November 29 in shutting the plant independently violated Section 8(a) (5), and we shall remedy such violations by making whole the employees who suffered a loss of earnings as a result thereof.12 10 Cf. Gale Products, Div. of Outboard Marine Corp., 142 NLRB 1246, enforcement denied 337 F. 2d 390 (CA. 7). Member Leedom , who dissented from the invalidation of the contract clause in the Gale Products case, agrees that the Respondent's position herein did not violate the Act. n Consistent with the position taken by him in the cases of Jenista and Friday , Member Brown would accept the Trial Examiner's disposition. 12 In view of this disposition , we need not decide whether, as the Trial Examiner found, Respondent's unilateral action of June 14 also violated Section 8 ( a) (3) of the Act. Member Leedom does not agree that an employer is obliged to bargain concerning day-to- day management decisions , such as to effectuate temporary layoffs of employees , and there- fore disagrees with his colleagues' conclusion that the economic layoffs involved herein violated Section 8(a) (5) of the Act. Nor can he agree with the Trial Examiner's con- clusion, in section III , D, of his Decision , that the Respondent's June 14 action was un- lawfully motivated. Accordingly, he would dismiss the allegations of the complaint with respect to these matters. He does agree, however, that the Respondent violated Section 8(a)(5) in the other respects as found by his colleagues. GENERAC CORP. 985 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Generac Corp., Waukesha, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively in good faith with District Lodge No. 48, International Association of Machinists, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit : All production and maintenance employees, but excluding office employees, professional employees, guards, watchmen, and super- visors within the meaning of the Act. (b) Instituting changes in the terms and conditions of employment in the appropriate unit without first consulting and bargaining with the above-named labor organization concerning wages, hours, and conditions of employment. (c) Unlawfully interrogating employees as to their union sym- pathies, threatening reprisals, or promising benefits to discourage membership in any labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named 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 right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of the employees in the above-described appropriate unit, and embody any understanding reached in a signed contract. (b) Make whole the following-named employees for loss of pay occasioned by the June 1963 layoff and reduction in hours, as described herein : A. Bamford D. Muecke L. Holloway N. Hart L. Sanchez H. Kennedy E. Kennedy K. Bethke E. Kroll L. Gromowski C. Ploehn P. Schaefer B. Pease J. Jenista 986 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD (c) Make whole all those employees affected thereby for loss of pay occasioned by the November 29, 1963, general layoff in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." - (d) Preserve and, upon request, make available to the Board or its, agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amounts of backpay due under the terms described herein. (e) Post at its plant in Genesee, Wisconsin, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for Region 30, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained-by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the portion of the complaint alleging violations of Section 8 (a) (3) of the Act in the cases of James Jenista, Artyce Friday, and Jerry Pease, be, and it hereby is, dismissed. 18 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 "a Decision and Order" the words "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 you that : WE, WILL NOT unlawfully interrogate our employees, or threaten them with reprisals, or promise benefits, to discourage membership in any union. WE, WILL NOT violate any of the rights you have under the National Labor Relations Act to join a union of your choice or not to engage in any union activities. WE WILL NOT make any changes in the terms and conditions of employment of any employees in the Board-certified appropriate unit without first consulting with and bargaining in good faith with District Lodge No. 48, International Association of GENERAC CORP. 987 Machinists, AFL-CIO, the exclusive bargaining agent of such employees. WE WILL, upon request, bargain in good faith with the above- named Union about terms of a contract, and, if agreement is reached, sign such contract. WE WILL make whole all employees for any loss of pay occa- sioned them caused by our unilateral layoffs and reduction in hours in June and November 1963. GENERAL 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, Commerce Building, 744 West Fourth Street, Milwaukee, Wis- consin, Telephone No. 272-8650, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge, filed on July 24 and August 2, 1963, respectively, by District Lodge No 48, International Association of Machinists, AFL- CIO, herein called the Union, in Case No. 13-CA-5764, the General Counsel of the National Labor Relations Board issued his complaint and notice of hearing on Septem- ber 30, 1963. An answer dated October 9 was duly filed by Generac Corp., herein called the Respondent On October 23, 1963, the same labor organization filed its charge in Case No. 13-CA-5959. On November 6, 1963, the General Counsel issued and served his order consolidating the two cases, an amended consolidated complaint, and a new notice of hearing. An amended answer, dated November 12, was filed by the Respondent. The amended complaint alleges and the answers deny that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in Waukesha, Wisconsin, on December 2, 3, and 4, 1963, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondent. Disposition of the Respondent's motion to dismiss the complaint upon which ruling was reserved at the conclusion of the hearing, is made by the following findings, con- clusions, and recommendations. On February 12, 1964, the Trial Examiner received a motion from the Respondent to reopen the hearing to take the testimony of one individual and to include in the record an affidavit from that individual Objection to said motion has been received from General Counsel. The objection is sustained and the motion denied. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Generac Corp. is a Wisconsin corporation with principal plant and place of business in Genesee, Wisconsin, where it is engaged in the manufacture, sale, and distribution of generators. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the calendar year 1962 the Respondent made, sold, and distributed products valued at more than $50,000 which were shipped from its plant to points outside the State of Wisconsin. The-complaint alleges, the answer admits , and it is here found that the Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION - District Lodge No. 48, International Association of Machinists, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues All of the events and conduct alleged by the complaint to be violative of the Act occurred shortly before and after the Charging Union, by a Board-conducted election in early June 1963, established itself as the lawful bargaining representative of all employees of the Respondent in an appropriate unit The Respondent in its answer concedes that since June 5, 1963, the Union has been the exclusive bargaining repre- sentative of such employees. That the Employer from the very beginning strenuously objected to its employees' seeking to be represented by a union is manifested by a letter of April 26, 1963, addressed to "All GenerAC Employees and Their Families" by the head of the Company, Robert D. Kern. Its opposition was stated in the first paragraph: We of GenerAC Management wish to advise you that WE DO NOT FEEL THAT A UNION WOULD BE BENEFICIAL TO EITHER THE COMPANY OR THE EMPLOYEES PRESENT OR LONG TERM OBJECTIVES. The same letter pointed to the fact that: Employment has always been provided in the past, even when temporary short- age of materials has occurred, by providing other work or transferring to other jobs. This is rarely the case in union shops. Kern also stated in the same document: Our older employees will recall that over the past two years, there have been annual rate evaluations which have resulted in wage increases each year. Our next annual evaluation is coming up this summer and could reasonably be expected to result in further increases provided our business conditions continue to improve. If the union were voted in, any change in rates would be subject to union negotiations. On May 10, 17, 27, and 31 and June 3 Kern issued and distributed similar letters opposing self-organization. The Respondent offered in evidence no union circulars or documents to which Kern's "letters" were plainly designed to meet or counteract. It appears that much of his caustic comment was, in newspaper parlance, "doing it by mirrors." For example, in his May 10 letter he stated: During the period preceding the election, the Union politicians, like so many politicians, will be making wild promises in order to get you to give them what they want-that is, control over you and your jobs. [Emphasis supplied.] What the Union does not tell you is that as a result of unions pricing their members' work too high, over 6% of Americans wishing to work are unem- ployed.' * * * * * * * Remember, a fancy union contract is worth nothing unless you have a job to go with it. In his May 17 letter Kern stated, in part: This is a most important election for you. If a majority of you vote for the Union, the existing easy relationship between you and your Company can no longer exist. With a Union, we can no longer treat you as an individual; you become a small part of a mass of people called the "Union...." We sincerely believe that a union for our employees will result in an atmosphere which most of us would prefer to avoid. I It Is noteworthy that Kern failed to cite any authority for so fantastic an assertion of fact. GENERAC CORP. 989 In his May 27 letter Kern said, in part: .. as we are sure you appreciate, we have maintained full employment for all as has been the record of your Company to date. Our recently completed Employee's Manual has been another major step forward. . . . Our recent interviews have indicated that the manual has con- tributed greatly to better undeistanding of our mutual problems, benefits, and obligations. * * * * * * * In order to eliminate any problems which may arise from past interpretations, we are modifying our standard policy (concerning vacations) to extend it to those employees with six months or over, but less than one year employment. As you know, we are continually working on additional improvements in our plant to upgrade our overall working conditions . The vending machines have recently been installed in the lunch room with an additional hot soup dispensing machine to be added shortly In his May 31 letter, Kern said, in part: In our last letter, we pointed out that when you vote for a union, you vote to give up the right to handle your own job affairs. You may be told that the Union will foice the Company to grant higher wages and greater benefits As to that, we assure you that a union will make no differ- ence. We will continue to do those things which, in oui judgment, good business practice requires. Two days before the election of June 5 Kern summed up his series of letters point- ing out benefits which the Employer had provided employees and which the Union could not obtain for them, by stating: You, of course, have a right to vote for the Union if you want to And, if a majority of you employees want to drive a wedge between yourselves and man- agement you create the dog-eat-dog basis which Union bargaining usually involves, your management will be bound by your decision. Without, at this point, determining whether any or all of the above-quoted declara- tions, promises, and warnings by Kern were, per se, violative of the Act, in sum they clearly depict a consistent and repeatedly avowed opposition by the head of the Company to the employees' exercise of rights guaranteed by the Act to bargain through representatives of their own choosing As to that the language of the letters permits no reasonable doubt. Shortly before the June 5 election, however, Foreman Richard Schneck, conceded to be a management agent, told a number of employees that: if the union got in and we were set in one department, under one classification, that if we ran out of work, we would not be able to transfer to another depart- ment, but we would be laid off.2 This threat of possible layoffs, especially in the context of Kern's repeated avowals in his letters to employees that it had always been company policy not to lay off, but to transfer, employees, plainly was designed to discourage union adherence and was violative of the Act Schneck's threat, moreover, serves as a significant factor against which to appraise certain later conduct by this foreman, to be described below In this atmosphere of open hostility toward self-organization by the employees (other details of which will be described in later sections) an election was held, which resulted, as the Respondent concedes, in certification of the Charging Union as the exclusive bargaining agent. 2 The quotations are from the testimony of employee Friday, which is corroborated by that of employee Bertha Pease and is uncontradicted by Schneck. Nor did Schneck, as a witness for the Respondent, dispute the testimony of employee Bamford, one of the em- ployee organizational leaders, to the effect that when he challenged the foreman for mak- ing such threats to the girls, Schneck merely evaded the matter by saying that he "didn't know too much about the union." 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner adopts, as accurate, General Counsel's following summary of the issues, as set forth in his brief: 1. Whether Respondent failed and refused to comply with the good-faith collective bargaining duty imposed upon it by Section 8 (a) (5) and (d) of the Act. 2. Whether Respondent committed violations of Section 8(a)(5) of the Act by: (a) unilaterally changing wages, hours and working conditions; (b) bargaining individually with its employees; (c) bypassing and undermining the Union. 3. Whether Respondent suspended employee Jenista and discharged employees Friday and Pease because of their membership in and support of the Union, in violation of Sections 8 (a) (1) and (3) of the Act. 4. Whether Respondent interfered with, restrained and/or coerced its employ- ees in violation of Section 8 (a) (1) of the Act by: (a) promising and/or instituting changes in wages, hours and working conditions; (b) threatening, interrogating and promising benefits to its employees. B. Interference, restraint, and coercion Employees of the Respondent began efforts to have the Charging Union serve as their bargaining agent late in March 1963. Signatures to authorization cards were solicited in the plant. About April 10 employees in favor of the Union began wearing buttons openly. At the same time the Union notified management of its claim to majority representa- tion and asked for recognition. The Respondent declined and demanded an election. On April 12 a petition was filed in Case No. 13-RC-9349.3 Between that date and the election of June 5 the Respondent took certain action claimed by General Counsel to have interfered with and restrained employees in the exercise of rights guaranteed by Section 7 of the Act. Especially does General Counsel urge that the distribution by the Respondent to all of a so-called "Blue Book" on April 29, some 2 weeks after it had been clearly notified of the Union's claim of a majority and was plainly aware of its own demand for an election, was violative of Section 7 rights. The Trial Examiner agrees. This employee manual, unilaterally prepared and effectuated, not only altered existing working conditions but also increased wages. It included a "grievance pro- cedure" for employees to follow and revised the pay schedules and work classifications for many employees. New plant rules and regulations were announced for the first time. An entire procedure of disciplinary measures not before then observed, was put into effect. A vacation policy was also announced. Not only were such major changes announced on April 29 but they were actually put into effect thereafter. Wages in a number of instances were increased. Oral and written warnings were issued. Both the inauguration and effectuation of this "Blue Book," after the Union's claim of majority representation and during pendency of the election, were clearly designed to discourage union adherence. Particularly is this so when considered in the context of the series of letters being distributed by Kern, urging the employees to reject even the basic idea of collective bargaining. The issuance and implementation of the booklet was, in effect, a concrete demonstration of Kern's blunt admonition, expressed in his letter of May 31, to the effect that regardless of the Union as their bargaining agent, in matters of "higher wages and greater benefits" the employer would continue to "do those things" which he alone thought best. As to the actual granting of benefits General Counsel appropriately cites language from a recent decision of the United States Supreme Court,4 wherein the Court said, regarding the granting of benefits when a representation election was pending: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside a velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. 8 The Trial Examiner has no reason to question General Counsel 's statement in his brief as to the case number or date of the filing , since both are a matter of public record. *N.L.R.B. v. Exchange Parts Company, 375 U.S. 405. GENERAC CORP. 991 Full support for General Counsel's contention that the announcement and imple- menting of new plant rules during pendency of the election was also violative of the Act is found in Dixie Gas, Inc., 135 NLRB 1051, 1088, and Hof}man-Taff, Inc., 135 NLRB 1319, 1325. As to other acts of unlawful interference, restraint, and coercion, and in addition to the threats of Schneck found in the preceding section to have been violative of the Act, the Trial Examiner concludes that credible evidence establishes the following: 1. On the day of the election Foreman Robert Boehler approached employee Freudenstein and told her that he hoped that the "Union doesn't get in " He added: "But if the Union does get in, you girls can just figure you will all be out of a job." Apparently to emphasize his point Boehler said that various operations then being performed at the plant could be done by other companies, which he named.5 2. A few days after the election, which as noted the Union won, the same foreman approached employees Freudenstein, Friday, and another employee at the lathe where Friday worked, and, after asking them what "profit" they thought they would derive from the Union, declared that "Kern will never sign a contract." 6 3. In mid-September, after protracted negotiating meetings had been held, Foreman Schneck told employee Bertha Pease, an active leader in the organizational efforts earlier, "I see your union is all dropping out " When she questioned his statement, he declared, "I got information there was only two or three there (at a union meeting), and I heard you are all cancelling out " He then asked her to "give me the names of everybody that cancelled out and who didn't " C. The discharge of Jerry Pease Without according the employee the very rights under the new "Disciplinary Pro- cedure" announced by management on April 29 to receive both written warnings and suspension before discharge, employee Jerry Pease was summarily fired by Foreman Rohrmeyer on June 13, about a week after the Union had won the election. While it does not appear that Jerry Pease himself was as active a leader in the organizational move as was his mother, Bertha Pease, credible evidence establishes that his union adherence was well known to Rohrmeyer and was resented by that management agent When he began wearing a union button on April 11 Rohrmeyer asked him what it was When told, the foreman commented that "he would have took the pin and threw it in the person's face who gave it to him," and said that no union was needed in the shop. Two or three days before his discharge Pease was suddenly transferred to a new job, operating a "lamination press." On June 13, apparently through no fault of his, the machine jammed.8 Pease called employee Mindiola to the machine- Mindiola having been the regular operator-to help "unjam" it. Mindiola instructed him to place a certain piece of metal between the upper and lower plates of the machine, and he did so. After the machine was cleared, Mindiola told him to start it. Pease did so, but neglected to remove the "hunk of metal " It appears that no serious damage was done, a single bolt requiring replacement which was done in less than half an hour. Yet the same afternoon Rohrmeyer summarily discharged Pease. According to the foreman he took this action because Mindiola told him he "couldn't work with the man ... This is too dangerous to be around the press " Mindiola, however, was not called as a witness by the Respondent, and the Trial Examiner does not credit Rohrmeyer's unsupported testimony. In any event, it is plain that the incident was minor. Assistant General Manager Seybold, as a witness, admitted that shortly after it occurred he, in company with Foreman Boehler, a tool-and-die maker, and Mindiola also failed to remove the safety bar, precisely as had Pease, with no substantial damage. 5 The employee's testimony concerning this June 5 threat was not specifically contra- dicted by Boehler. 6 After stating that he could recall no conversation with these employees about contract negotiations, Boehier then admitted that such might have occurred. T The quotations are from the credible testimony of Pease, which is not specifically con- tradicted by Schneck, who admitted the conversation about a union meeting, and com- mented, "Curiosity killed the cat " s The Respondent does not claim that the jamming was the employee's fault. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner is convinced and finds that Rohrmeyer used a minor incident as a pretext, and that the real reason for the summary discharge of Pease was his known union adherence. Such unlawful discrimination interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. D. The layoff and reduction of hours On June 14, the day after the unlawful discharge of Pease, and without notification to the Union, then the exclusive bargaining representative of all employees, the Respondent, through Seybold, posted a notice of reduction in work schedules to be effective the following workday, June 17. Despite the open boast of Kern in his letter to all employees a few days before the election: ". . as we are sure you appreciate, we have maintained full employ- ment for all as has been the record of your Company to date," a few days after employees had failed to follow his urging to vote against the Union, some 14 em- ployees were by layoffs and reduction in working time subjected to appreciable loss of "full employment." 9 Reserving for resolution in a later section the question as to whether this reduction in hours and accompanying layoffs without consultation with the Union constituted a failure to bargain in good faith, the Trial Examiner here concludes and finds that the Respondent's action was in overt reprisal for its employees having voted for the Union as their representative. The threat to engage in such reprisals was implicit in the letters sent all employees before the election. In his letter of April 26, quoted in part above, Kern had bragged of the fact that, in the absence of a union, the Company had always prevented loss of time, even when sales were off. The Respondent failed to offer any credible record evidence to support the mere oral claim of "slow orders" as the reason for the unprecedented layoffs and reduction in hours. Therefore the Trial Examiner concludes that the discriminatory action was for the purpose of retaliation and to discourage union membership and activity, and interfered with, restrained, and coerced employees in the exercise of rights guar- anteed by Section 7 of the Act. - E. The suspension of James L Jenista James L. Jenista was hired by the Respondent in early September 1962. He was an ovenroom operator. He received periodical raises thereafter, according to man- agement's policy, which obviously would not have been granted had his work performance not been satisfactory. He became one of the few employee organizing leaders early in April 1963. He, Bertha Pease, and Artyce Friday (whose discharge is an issue in this case) distributed union authorization cards in the plant during their noon breaks under the watchful eye of Foreman Schneck. He wore a union button on April 11, and later the same day this foreman asked him if the cards be had been passing out had "anything to do with the Union." Jenista replied in the affirmative. It is found that management was well aware of Jenista's leadership in the union movement. On May 20 Schneck gave him a written warning notice, a few days after the Respondent, as found above, unlawfully set up such practices during pendency of the election. This notice, signed by Schneck and in evidence, stated that Jenista was being warned for: 1. Visiting fellow employees while they are working. 2. Consistent failure to meet min. standards of production-you have had a considerable slow down in your work habits in the past 4-5 weeks. Never before had he received such warning. According to the employee's credible testimony he promptly approached the foreman and asked him if he had been "talk- ing any more than any of the other people" and Schneck answered in the negative. When Jenista asked what his production standards and production average were, Schneck replied that he did not know. Shortly thereafter Jenista went to Assistant Manager Seybold and reported his interview with the foreman. Seybold told him he would "take up the time study and find out if I was not working up to the standard." 9 Employees affected by such loss of earnings include, according to a summary of com- pany records in evidence: A. Bamford, N. Hart, E Kennedy, L. Gromowski, B. Pease, L. Sanchez, K. Bethke, J. Jenista, L. Holloway, H. Kennedy, E. Kroll, D. Muecke, C. Ploehn, and P. Schaefer. Bamford, Pease, and Jenista were known union leaders. GENERAC CORP. 993 And a few days later Jenista received written notice to the effect that "because of the technical error in a statement made to you, item one on the warning notice regard- ing visiting is being removed." The same notice continued: "No change will be made in item 2. This item will be reviewed after a complete time study has been made in the oven room " Thus this latter notice on its face establishes that (1) the warning about "visiting" was wholly unwarranted and without foundation in fact, and (2) the warning about production would be held over his head "until a complete time study had been made." It follows that management had no meritorious reason for issuing any warning to Jenista on May 20 The Trial Examiner concludes and finds that it was issued for the unlawful purpose of discouraging union membership and activity As found in the preceding section, Jenista was one of the several employees whose working hours were unlawfully reduced beginning on June 17. According to a summary of the Respondent's own records he was deprived of 17.8 hours of work in the next 18 days. During this period of continuing discrimination Jenista became an employee mem- ber of the Union's negotiating committee-a fact well known to the Respondent. And about this time he was deprived of the services of a helper in his ovenroom. Shortly after he was permitted to resume his full 8 hours a day, he was summarily suspended for 2 days on July 18 by Schneck. He received a notice stating* You are given this notice and a 2-day suspension because of failure to meet minimum standards of production. Your first written warning was on 5/20/63. In view of the obvious falsity involved in the issuance of the "warning" of May 20, his unlawful reduction in hours, and the removal of his helper, the Trial Examiner can place no reliance upon any of the testimony of Seybold or Schneck concerning the suspension of July 18. It appears needless to review their claims here, particu- larly since such testimony is unsupported by other than prepared charts which, like their testimony, may well have been fabricated in order to lend appearance of merit to their claims. The Trial Examiner concludes and finds that the 2-day suspension, like the unfounded warning of May 20, was motivated by management's design to discourage union membership and activity. Such discrimination interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. F. The refusal to bargain 1. Relevant facts After the Union's certification the parties met several times between June 25 and late in September, when contract negotiations ceased Jenista, whose unlawful sus- pension in July has been described above, and Artyce Friday, whose discharge in September will be reviewed below, were two of the three employee members on the union negotiating committee. Seybold, previously identified, was the chief manage- ment representative. It appears unnecessary to the Trial Examiner to describe in minute detail the exchange of comment and declaration of each participant in the several meetings, as testified to by Seybold and Union Representative Allen Johns. Certain outstanding facts, relevant to the bargaining issues, are summarized and are based mainly upon Johns' credible testimony, much of which is undisputed, as well as documents in evidence. (a) Throughout such meetings Seybold maintained the position that the "Blue Book," the imposition of which has been found to have been unlawful, would continue to be governing company policy. When the union representative asked him if he would be willing to sign this document as a union contract, however, Seybold declined, stating that he had "full control" of this manual, and could "put things" into it which he would not agree to include in a contract. (b) Early in the sessions Seybold stated flatly that the employer would not nego- tiate on reduction in hours or work force, although it would give "notice" of such intended changes. (c) Following his declaration of policy concerning the "Blue Book," Seybold said that "the employees had made their choice, they had the Blue Book before them when they made their decision to vote for the Union, and, therefore, they had to take the consequences for having voted for representation by the Union." (d) Throughout the negotiations the Respondent adamantly insisted upon its right unilaterally to "install, alter or replace," any rate under an "incentive system," or "discontinue or terminate all or any part of" such plan as it, alone, saw fit. 7 7 0-0 7 G-0 5-v o f 149-64 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) The Respondent refused to alter its insistence that it retain the right unilater- ally to "establish new or changed jobs" and fix rates for such lobs. It insisted that the Union would be permitted only to raise questions as "grievances," after the event of any job or rate change. (f) Despite the Union's written request on August 8 to negotiate production quotas management consistently declined. (g) At all times management conditioned permitting the Union to use plant bulletin boards upon the prohibition of union literature elsewhere "on the company premises " (h) The last actual negotiating session was held on September 30. At this meeting management offered a small general increase and then declared that the Union had its entire proposal which, it insisted, be submitted to the union membership While the union spokesman said he could not and would not recommend its acceptance by the members, he would submit it. It was then agreed that the Employer would prepare copies of the "written proposal" but would first submit it to the Union for checking as to accuracy. Despite this understanding, management distributed copies to employees before submitting them to the Union. (i) A few days later, on October 8, the Respondent notified the union spokesman that in view of its receipt of unfair labor practice charges, there was "no point in continuing negotiations " The counterfeit nature of this pretext for halting negotia- tions is established by the fact, noted on postal receipts in evidence, that as early as July 26 and again on August 5, the Respondent had been served with a charge and an amended chai ge alleging refusal to bargain in good faith and other unfair labor practices No negotiating meetings have been held since September 30 (j) Without consulting with the Union, and over its protest upon learning of its intent, management imposed a general layoff of employees on November 29, which, so far as the record shows, was an unprecedented event. (k) A few days before the opening of the hearing in this case, the Respondent notified all employees, as well as the union representative, by letter, that it intended to put into effect on December 2 its final wage offer of October 3, despite the docu- mented fact that the Respondent itself, on October 8, had called a halt to negotiations. The record, so far as the Trial Examiner has discoveied, does not reveal whether the wage increase was actually effectuated 2. Conclusions The Trial Examiner concludes and finds that from the date the Union won the election, on June 5, 1963, the Respondent has consistently bargained in bad faith, with no intent to negotiate and sign a contract with the Union-quite as Foreman Boehler explicitly had warned employees, and as Kern's letters to employees had implied. While varying in some details, the history of bargaining in this case is, in the opinion of the Trial Examiner, similar to that of both N.L R.B v. Reed & Prince Manufac- turing Company, 205 F. 2d 131 (C.A. 1), cert denied 346 U.S 887, and Aztec Ceramics Company, a division of the Texstar Corporation, 138 NLRB 1178, enfd. sub nom International Brotherhood of Operative Potters v N.L R B , 320 F. 2d 757 (C.A.D C.). Specific factors of refusal to bargain in good faith include: (a) Failure to consult with the Union concerning the work ieduction and layoffs of June 14 (b) Refusal to consult and discuss with the Union the setting of production quotas, and the general layoff of November 29 (c) Bypassing the Union by submitting its final proposal directly to the employees on October 3. (d) Conditioning use of the bulletin boards upon the Union's relinquishment of its lawful right to distribute literature on company premises (e) Refusal to attend negotiating meetings pending the hearing in this case. (f) Unlawful discrimination against employee members of the Union's negotiating committee (Jenista as described above and Friday as described below). There is no dispute and it is concluded and found that at all times since June 5, 1963, and continuing to date, the Union has been the exclusive bargaining represen- tative of all employees for the purposes of collective bargaining in the following appropriate unit: All production and maintenance employees of the Respondent's Genesee, Wis- consin. plant, but excluding office employees, professional employees, guards, watch- men, and supervisors within the meaning of the Act GENERAC CORP. 995 It is further concluded and found that by refusing since June 5, 1963, to bargain in good faith with the Union the Respondent has interfered with, restrained, and .in employees in the exercise of rights guaranteed by the Act. G. The discharge of Artyce Friday There is no question but that the Respondent at all material times was well aware of this employee's leadership in union activities. During the summer "negotiations" she was one of the employee representatives on the union committee and met with management at the sessions She was one of the employees told by Foreman Boehler that management would not sign a contract. She worked under Foreman Schneck, whose discriminatory action against Jenista has been found above. While admittedly her recollection of accurate dates, as a witness, was somewhat confused, her credible testimony is the chief basis for the following facts-particularly so since the testimony of both Seybold and Schneck has been found in so many respects to be unreliable- (1) Early in September, Friday was absent from work with full permission of management-a fact conceded by Seybold. (2) On September I1 or 12 she sent in word through her mother that she was ill-also a fact conceded by Seybold. (3) On Friday, September 13, she visited her local doctor, and that night tele- phoned Schneck, informing him of such visit and that it would be a few days before she had a report from him. The foreman merely told her to let him know as soon -as she heard from the doctor. (4) Early the following week she called Schneck again and said it would be a few days before she could report for work. On this occasion Schneck suggested that she should apply for a leave of absence, but when she said she would be in soon he said not to bother. (5) On September 18 she reported for work, was permitted to work for a time, and then was sent home by Schneck on the grounds that she had not brought a "release" from the doctor. She left, and when discovering that Wednesday was the doctor's day off, she returned to the plant for her paycheck and told Schneck that she would see the doctor as soon as possible. (6) Her appointment with the doctor was on Friday, September 20. After her visit there she called Schneck and reported that the doctor said she could not return to work yet. The foreman merely told her to keep him informed. (7) On September 24 after another visit to the doctor she telephoned to Seybold, told him she was sorry she had been ill but the doctor would not permit her to return. Seybold replied that he had just sent her a letter which he would not retract. That letter, in evidence, reads: I have been studying the circumstances involving your absence from work for the last twelve days. Our records show that you returned to work on Sep- tember 18th without a Doctor's signed authorization, which is necessary after an absence of more than three days due to sickness. You were sent out on the 18th to get your authorization but have failed to return since that time. Your failure to report back to work with your Doctor's authorization after you advised us on September 18th that you were able to work leaves me no alternative but to conclude that you have quit unless you come in and present some other condition or circumstance to me. Accordingly, unless you see me immediately, your name will be dropped from our employment list. (8) Despite this letter, according to Seybold's own testimony, and before it was sent, he was notified by Friday's doctor that she "was not available to return to work at that time " The manager offered no explanation as to why, after receiving this information from the doctor himself, he should have advised Friday later in the day that "she was going to have to comply with that" letter. (9) At the September 30 negotiating meeting, Seybold informed Johns, the union representative, that she was then being taken from the company payroll. (10) During the first week of October the chairman of the employee negotiating committee received from Seybold a letter stating, in part. As of September 30th, Artyce Friday has been dropped from our Employment Records because of excessive absence without leave. Attached is a copy of a letter sent to her on September 24th (quoted above). As you know, we have had no word. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (11) The falsity of Seybold's claims in this letter becomes apparent when com- pared with his own testimony. As a witness he admitted that in early September, Friday had been absent with permission. And he also admitted that as late as Sep- tember 24 he had received information direct from the doctor that she was under his care and could not return. (12) Late in October, when she finally received the doctor's release, she called Seybold, who told her there was no work for her and that her job had been•filled. Despite the clearly inconsistent claim that Friday had "quit" her job, urged during the hearing by the Respondent, it is clear and is found, on the basis of Seybold's letter quoted above, that she was in fact discharged as of September 30, 1963. The Trial Examiner finds no merit in the Respondent's contentions-whether that she quit, or that she was discharged because of "excessive absence without leave." Even the testimony of both Seybold and Schneck establishes that the employee kept them frequently informed of her doctor's unwillingness to permit her return. In short, the Trial Examiner is convinced and finds that the Respondent seized upon her absence under doctor's orders as a pretext for ridding itself of a union leader, and to discourage union membership and activity. Such unlawful discrimina- tion interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 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 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. It has been found herein that the Respondent unlawfully discharged certain employees, unlawfully reduced the working hours of others, and unlawfully suspended another. It will be recommended that the Respondent make whole all employees listed in footnote 9 above for any loss of earnings suffered by them as a result of the unlawful reduction in hours as found herein, as well as employee Jenista for his loss of pay during his 2-day suspension. It will also be recommended that the Respondent offer employees Pease and Friday immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them, by payment to each of a sum of money he or she would normally have earned as wages from the date of the discrimination 10 to the date of full offer of reinstatement, less net earnings during said period, and in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. It will be recommended that the Respondent, upon request, bargain collectively in good faith with the Charging Union, and, if an understanding is reached, embody such understanding in a signed agreement. In view of the seriotus and extended nature of the Respondent's unfair labor prac- tices it will be recommended that it cease and desist from in any manner infringing upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW I District Lodge No. 48, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of the Respondent, at its Genesee, Wisconsin, plant, but excluding office employees, professional employees, guards, watchmen, and supervisors within the meaning of the Act, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 10 Since Friday was not available for employment while under her doctor' s care, her backpay period should begin the day after she received his release. HAMMOND ORGAN COMPANY 997 3. By virtue of Section 9(a) of the Act the said labor organization has been since June 5, 1963, and now is, the exclusive representative of all employees in the said appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 4. By refusing, since June 5, 1963, to bargain collectively in good faith with the said labor organization as the exclusive representative of all employees in the said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating as to tenure of employment and working hours against employees to discourage membership in and activity on behalf of the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Hammond Organ Company and Upholsterers International Union, AFL-CIO and Hammond Round Table. Case No. 13- CA-6089. November 23, 1964 DECISION AND ORDER On September 11, 1964, Trial Examiner Robert E. Mullin 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 Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 Mem- bers Leedom 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 Examiner's Decision, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations 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, Ham- 149 NLRB No. 94.