Todd Shipyards Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1952

98 N.L.R.B. 814 (N.L.R.B. 1952)

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
TODD SHIPYARDS CORPORATION, Los ANGELES DIvIsION, A CORPORATION,
and DENNETT N. GROVER . Case No. 21-CA-1067. March 26,1952 ,
Decision and Order
STATEMENT OF THE CASE.
Upon a charge filed on March 20, 1951, by Dennett N. Grover, an
individual, the General Counsel of the National Labor Relations
Board, herein called, respectively, the General Counsel and the Board,
by the Regional Director for the Twenty-first Region (Los Angeles,
California), issued his complaint on June 22,1951, against Todd Ship-
yards Corporation, Los Angeles Division, herein called the Respond-
ent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (a) (1), Section"8 (a) (3), and Section 2 (6) and (7) of
the National Labor Relations Act, as amended, herein called the Act.
Copies of the complaint, accompanied by notices of hearing thereon,
were duly served upon the Respondent and the charging party.
With respect to the unfair labor practices, the complaint alleged in
substance that the Respondent, on or about November 27, 1950, dis-
charged Carlos Dillenbach 1 and Dennett N. Grover because they
engaged in activities on behalf of "the Union," and thereafter refused
reemployment to them because of such activities, and that, by the
foregoing acts, Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (1), and discriminated in regard
to hire or tenure of employment and conditions of employment of its
employees to discourage membership in the Union, in violation of
Section 8 (a) (3) of the Act.
The Respondent duly filed its answer denying all allegations of
unfair labor practices and asserting that Dennett N. Grover and
Carlos Dillenbach voluntarily quit its employment.
Pursuant to notice, a hearing was held at Los Angeles, California,
from August 20 to August 23, 1951, inclusive, before William E.
Spencer, the Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent were represented
1 Also referred to In the record as Dillenbeck.
98 NLRB No. 124.
TODD SHIPYARDS CORPORATION 815
by counsel, who participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. The Board 2 has
reviewed the rulings made by the Trial Examiner at the hearing and
finds-that no prejudicial error was committed. The rulings are hereby
affirmed.
On September 5, 1951, the Trial Examiner issued his Intermediate
`Report, copies of which were duly served upon the parties. He found
that the Respondent unlawfully discharged Dillenbach and recom-
mended his reinstatement with back pay. He also found that, the
Respondent did not engage in any unfair labor practice with respect
to Grover, and recommended dismissal of the complaint insofar as
it so alleged .3 Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case. Because of the nature
of the Intermediate Report,'we make our own findings, conclusions,
and order, as follows :
FINDINGS OF FACT
,I. THE BUSINESS OF THE RESPONDENT
Todd Shipyards Corporation, a corporation existing by virtue of
the laws of the State of New York, is engaged in, and, at all times
material herein, has been engaged in, ship construction, repair, and
conversion at its Los Angeles, California, shipyards, and at other ship-
yards in numerous States of the United States. During the last 12
months immediately preceding the issuance of the complaint herein,
the Respondent, in the course and conduct of its Los Angeles, Cali-
fornia, shipyards, caused materials, equipment, and supplies, valued
in excess of $500,000 to be acquired, purchased, transported, and deliv-
ered in commerce from and through States of the United States other
than the State of California to its place of business in Los Angeles,
California. During the same period, at its Los Angeles, California,
shipyards, the Respondent constructed, repaired, and installed equip-
ment, and rendered services, valued in excess of $3,000,000, to vessels
engaged in interstate commerce.
The Respondent concedes, and we find, that it is engaged in com-
merce within the meaning of the Act.
2 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 Herzog and Members Houston and Styles].
8 As no exception has been filed to the Trial Examiner's findings and recommendation as
to Grover , we shall dismiss the portion of the complaint alleging that the Respondent
unlawfully discharged Grover.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Industrial Union of Marine Shipbuilding Workers of America,
CIO, Local No. 9, herein called the. Union, is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The constructive discharge of Carlos Dillenbach; interference
restraint, and coercion
Carlos Dillenbach was first employed by the Respondent in July
1946, and worked in various capacities for the Respondent at its ship-
yard in San Pedro, California, until November 27,1950. At least since
September 12, 1949, with a minor exception, he worked on the swing
shift from 4: 30 p. in. to 12: 30 a. m.; and, at least since June 13, 1950,
he was employed continuously as a-chipper and caulker.
In September 1949 Dillenbach enrolled in a junior college under
'the GI Bill of Rights and attended classes during the daytime with
the knowledge of the Respondent, as will hereinafter more fully
appear. He played college football and engaged in other activities
outside his work. As a result of these outside activities, he-sometimes
reported late for work or was absent. However, he was an hourly
paid worker, and usually he obtained permission from management
to be absent or late. His foreman, William Mulholland, was of the
opinion that there was room for improvement in Dillenbach's work
as a chipper and caulker. However, no complaint was ever made to
Dillenbach about his work, tardiness, or absences.
The Union had a union-shop contract with the Respondent covering
in substance all its San Pedro production and maintenance employees.
This contract, dated August 16, 1950, and to be in force for at least
2 years from July 27, 1950, contained provisions for a grievance
procedure.
On or about October 27, 1950, in a conversation between certain
management representatives, including Foreman Mulholland, and two
.lead men who worked on the day shift, the lead men suggested in sub-
stance that they could help Dillenbach with his work if he were trans-
ferred to the day shift. However, no decision to make such a transfer
was reached at this time.
On or about November 3, 1950, Dillenbach was laid off for about 1
week hence as part of a reduction in force. Sometime thereafter, on
or about November 10, 1950, he complained to the union grievance
committee that the Respondent had transferred an employee in 'another
job classification, a riveter, to take Dillenbach's place during his lay-
TODD SHIPYARDS CORPORATION 817
off. The union grievance committee decided not to press Dillen-
bach's complaint as a formal grievance under the provisions of the
existing contract, because the 5-day period allowed in the contract for
the filing of a grievance had by then expired. Instead, William F.
Estes, chairman of the union grievance committee, orally brought
Dillenbach's complaint to the attention of his foreman, William Mul-
holland, who replied in substance that he had acted under orders of
his superiors in replacing Dillenbach'4 An appeal to higher manage-
ment authority was also unsuccessful.
About midway during the swing shift on November 14,1950, Dillen-
bach was again laid off. He was recalled on November 16. On No-
vember 22, 1950, at the insistence of Dillenbach, the union grievance
committee presented to Foreman Mulholland a written grievance to
the effect that during Dillenbach's layoff which ended on November
16, the Respondent used a riveter to do work which should have been
performed by Dillenbach as a chipper and caulker.
In the course of the conversation which ensued between Mulholland
and the union grievance committee, Mulholland complained in sub-
stance about Dillenbach's tardiness and absences and stated that he,
Mulholland, had been contemplating transferring Dillenbach to the
day shift. In addition, according to the testimony of Estes, Mul-
holland stated :
... I know who made that grievance. That was Dillenbach
made that grievance.... I can tell you just exactly what I am
going to do about it.... I will deprive him of his livelihood,
because he is a G. I. going to school, ... he can't work daytimes,
and I will transfer him.... In fact, I think I will go in and
write it out right now, anyway.
Union Committeemen John Ferracioli and Ephriam B. Snow cor-
roborated Estes' testimony .5 Mulholland denied that he made the
quoted statement to the union grievance committee. The Trial Exam-
iner credited Estes' testimony, In view of the fact that the Trial
Examiner observed the demeanor of the witnesses and the further
fact that Estes' testimony was supported in all essential respects by
This finding is based upon the testimony of Estes. Mulholland denied that he was
approached by any union representative concerning any grievance relating to Dillenbach
before November 22, 1950 . Like the Trial Examiner , we credit Estes ' testimony.
According to Ferracioli 's testimony , Mulholland stated :
I think I will go out there and write out a transfer to day shift . . . . I think I will
deprive him ( Dillenbach ) of his livelihood . . . in the shipyard because I know he is
going to the G . I. school so I know that wan can't work on the day shift.
Snow testified that Mulholland stated :
I know who filed the grievance . It was Dillenbeck . He comes in late one or two
nights a wee$, and then is always hollering about something . . . . If he wanted to
be like that . . . he is going to school and can't work days ; if I transfer him to days
it will deprive him of his livelihood here. I think I will go in now and write up the
transfer for him.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that of Ferracioli and Snow, we also credit Estes' testimony and find
that Mulholland made the quoted statement attributed to him.
Representing that they wished to talk to Dillenbach "to get him
straightened out," the union grievance committee induced Mulholland
to agree to withhold the transfer for a day or two. -
November 23 was Thanksgiving. Sometime between November
22 and the end of the swing shift of November 24, the union-grievance
committee persuaded Dillenbach to drop his grievance.
At the end of the swing shift of November 24, the union grievance-
committee not having communicated with Mulholland in the interim,
Mulholland transferred Dillenbach to the day shift.
On the next workday, November 27, 1950, Dillenbach conferred
with LeRoy B. Zust, the Respondent's division director of personnel
and labor relations. When Zust refused to revoke the transfer, Dillen-
bach quit, rather than abandon his schooling, and signed an "Em-
ployee Status Notice" form at Zust's request, which so stated.
B. Conclusions
The Respondent contends that it did not transfer Dillenbach from
the swing to the day shift because of his union membership or activities,
and that Dillenbach voluntarily quit his employment. On the basis
of the facts set forth in Section III, A, above, particularly the state-
ments made by Foreman Mulholland to the union grievance committee
on November 22,1950, it is clear, and we find, as did the Trial Examiner,
that Foreman Mulholland transferred Dillenbach from the swing
to the day shift because he had lodged with Mulholland *a complaint
concerning the terms and conditions of his employment. It may be
true that, for at least a month before November 22, Mulholland con-
templated transferring Dillenbach to the day shift because of economic
reasons, but no decision to make the transfer was made until at least
November 22, when Mulholland stated to the union grievance com-
mittee that he would transfer Dillenbach because "... Dillenbach
made that grievance." Absent the filing of the grievance, we believe
that the Respondent would not have transferred Dillenbach at that
time. We agree with 'the Trial Examiner that the transfer was pre-
cipitated by the filing of the grievance. We conclude therefore that
the Respondent transferred Dillenbach from the swing to the day
shift because he filed a grievance. Dillenbach's grievance was spon-
sored by the Union and presented by it to the Respondent. Section
7 of the Act protected Dillenbach in filing the grievance, as such
activity was a concerted or union activity. In transferring Dillenbach
because he filed a grievance, the Respondent sought to penalize Dillen-
TODD SHIPYARDS CORPORATION 819;
bath for exercising rights protected by the Act, and thus infringed
these rights."
Under the circumstances, we reject the Respondent's contention that
Dillenbach voluntarily quit his employment. While, at the request,
of the Respondent's personnel ditector, Dillenbach signed a form,
reciting, "Voluntarily quit-cannot work day," it is clear, and we find,,
that Dillenbach quit, when transferred, rather than abandon his school-
ing. As we found above, the transfer infringed rights guaranteed
under the Act. • Moreover, Mulholland transferred Dillenbach for
the very purpose of compelling him to quit, and in this Mulholland
achieved his purpose. Under the circumstances, we conclude, as
did the Trial Examiner, that the Respondent constructively discharged
Dillenbach, on or about November 27, 1950, because he filed a griev-
ance with his employer.7
Once a violation of the statute is shown, contrary to the Respondent's
contention, it is immaterial that previous thereto the Respondent en-
gaged in no unfair labor practice, demonstrated no hostility toward
the Union, or enjoyed an amicable relationship of long standing with
the Union.
The Respondent also contends that, in any event, the, complaint
should be dismissed as to Dillenbach because of his failure to exhaust
the remedies available to him under the grievance provisions of the
collective bargaining agreement. The record shows that the Union
filed a grievance, protesting Dillenbach's transfer, but that the Re-
spondent refused to grant any relief; neither the Union nor Dillenbach
sought arbitration, as permitted by the contract. Nevertheless, we
find no merit in the Respondent's contention, as Section 10 (a) of the
Act, as amended, expressly provides that the Board's power to prevent
unfair labor practices "shall not be affected by any other means of
adjustment or prevention that has been or may be established by agree-
ment, code, law, or otherwise." s
O As stated by the Court of Appeals for the Tenth Circuit in Continental Oil Co. v.
N. L. It. B., 113 F. 2d 473, 484, aff'd. in 313 U S. 212:
The act does not interfere with the exercise of the normal right of an employer to
discharge or transfer employees in the course of business . . . . But there is little
room for doubt that the transfer of an employee , . . . traceable to membership in a
labor union or to activities on behalf of a bargaining agency, constitutes discrimination
within the interdiction of Section 8 (1) and (3).
The Board has held, and the courts have sustained the Board in this position, that where
an employee is transferred , demoted, or otherwise discriminated against because of union
activity , he need not submit to such discrimination, but may quit work and his separation
from employment in these circumstances is deemed as equivalent to a discharge and to
be remedied in the same manner See , for example , N. L. It. B. v Star Publishing Co., 97
F. 2d 465, 468-471 (C. A. 9) ; N. L. R. B. v. American Potash and Chemical Corp, 98 F. -
2d 488, 493-494 (C. A. 9).
8 See, for example, Kinner Motors, 59 NLRB 905; N. L. It. B. v . Walt Disney Productions,
146 F. 2d 44 (C. A. 9), enfg. as mod. 48 NLRB 892.
820 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find, as did the Trial Examiner, that, by con-
structively discharging Dillenbach, the Respondent interfered with,
restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1),
and discriminated in regard to hire or tenure of employment to dis-
courage membership in a labor organization, in violation of Section 8
(a) (3) of the Act, thereby interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of
the Act. Whether the Respondent's conduct be viewed as a violation
of Section 8 (a) (3) or Section 8 (a) (1) of the Act, or both, the
remedy as set forth in section V herein, entitled "The Remedy," is
appropriate and necessary to correct the unfair labor practice involved
herein.
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 operations of the business of the Re-
spondent described in Section I, above, have a close, intimate, and sub-
stantial 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 engaged in unfair labor practices,
we shall order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
As we have found that Carlos Dillenbach was discriminatorily dis-
charged, we shall order the Respondent to offer him reinstatement to
his former or a substantially equivalent position 9 without prejudice
to his seniority and other rights and privileges. We shall further order
the Respondent to make whole Dillenbach for any loss of pay that he
may have suffered as a result of the discrimination. Such loss of pay
on the part of Dillenbach shall be computed on the basis of each sepa-
rate calendar quarter or portion thereof during the period from the
Respondent's discriminatory action to the date of a proper offer of
reinstatement 10 The quarterly periods, hereinafter called quarters,
shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum which Dillen-
bach would normally have earned for each quarter or portions thereof,
9 As to what constitutes a substantially equivalent position , see The Cha8e National
Bank of the City of New York, an Juan, Puerto Rico , Branch, 65 NLRB 827.
,O F. W. Woolworth Company, 90 NLRB 289.
TODD SHIPYARDS CORPORATION 821
his net earnings," if any, in other employment during that period.
Earnings in one particular quarter shall have no offect upon the back-
pay liability for any other quarter.
We shall further order, in accordance with our decision in F. W.
Woolworth Company, cited supra, that the Respondent, upon request,
make available to the Board and its agents all payroll and other rec-
ords pertinent to a determination of the amount of back pay due and
the right of reinstatement under the terms of our Order.
Normally, in discriminatory discharge cases, we, require the offend-
ing employer to cease and desist from in any manner interfering with,
restraining, or coercing employees in the exercise of the rights guaran-
teed by Section 7 of the Act. The Trial Examiner did not recommend
the entry of such a broad order because he believed that the Respondent
has "no desire or intention of interfering with the rights of employees
generally." No exception has been filed to his failure to make such
a recommendation. In view thereof, we shall not issue a broad cease
and desist order.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, we make the following :
CONCLUSIONS OF LAW
1. Todd Shipyards Corporation; Los Angeles Division, a corpora-
tion, existing by virtue of the laws of the State of New York, is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. The Industrial Union of Marine and Shipbuilding Workers of
America, CIO, Local No. 9, is a labor organization admitting to mem-
bership employees of the Respondent.
3. By discriminating in regard to the hire and tenure of employ-
ment and conditions of employment of Carlos Dillenbach, the Re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
st By, "net earnings " is meant earnings less expenses , such as for transportation, room, and
board , incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful discharge,
and the subsequent necessity for seeking employment elsewhere. See. Crossett Lumber
Company, 8 NLRB 440. Monies received for work performed upon Federal , State, county,
municipal , or other work -relief projects , shall be considered earnings. See Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7.
098666-vol . 98-53-- 5 3
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6: The Respondent has not engaged in any unfair labor practices
by the alleged discharge of Dennett N. Grover.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Todd Shipyards
Corporation, Los Angeles Division, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Industrial Union of Marine and
Shipbuilding Workers of America, CIO, Local No. 9, or in any other
labor organization, by discriminatorily discharging any of its em-
ployees, or by discriminating in any other manner in regard to their
hire or tenure of employment, or term or condition of employment.
(b) In• any like or related 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 Industrial Union of
Marine and Shipbuilding Workers of America, CIO, Local No. 9,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes 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 in Section 8 (a) (3) of the National Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act : -
(a) Offer to Carlos Dillenbach immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
,to his seniority and other rights and privileges.
(b) Make whole Carlos Dillenbach, in the manner set forth above
in the section entitled "The Remedy."
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all records neces-
sary for a determination of the amount of back pay due and the
right of reinstatement under the terms of this Order.
(d) Post at its shipyards in San Pedro, California, copies of the
notices attached hereto marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent's representative, be
r
12 In the event that this order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order," the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
1
TODD SHIPYARDS CORPORATION 823',
posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material. -
(e) Notify the Regional Director for the Twenty-first Region, in,
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-,
missed insofar as it alleges that the Respondent discharged Dennett
N. Grover in violation of Section 8 (a) (3) and Section 8 (a) (1)
of the Act. - `
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in INDUSTRIAL UNION OF
MARINE AND SHIPBUILDING WORKERS OF AMERICA, CIO, LOCAL
No. 9, or in any other labor organization, by discriminatorily dis-
charging any employee, or by discriminating in any other man-
ner in regard to hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist INDus-
TRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA,
CIO, LOCAL No. 9, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in concerted activities for the purposes 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 in Section 8 (a) (3)
of the National Labor Relations Act.
WE WILL OFFER Carlos Dillenbach immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of discrimination.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any em-
ployee because of the exercise of any right guaranteed by the
National Labor Relations Act.
TODD SHIPYARDS CORPORATION,
Los ANGELES DIvIsIoN
By -------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, . WARE-
HOUSEMEN & HELPERS OF AMERICA, LOCAL No. 621 and THOMAS K.
VOWELL. Case No. 10-CB-98. March 06, 1952
Decision and Order
On September 24, 1951, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaged in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report.
Pursuant to, the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Styles].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board lias considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions :
1. M. G. Hughett, general manager of Sesco Contractors, testified
that, in late December 1950 or in the early part of January 1951,
E. R. Clifton, the Respondent's business agent, objected to the con-
tinued employment of Thomas K. Vowell by Sesco Contractors, stating
to Hughett that Vowell "was not a member in good standing or did
not belong." Clifton denied that he ever asked Sesco Contractors
to refuse employment to Vowell. The Trial Examiner did not credit
Clifton's denial. Under the circumstances, we credit Hughett's testi-
98 NLRB No. 136.