John D. Roche, Inc.

JOHN D. ROCHE, INC. 445 Member Styles , dissenting: For the reasons set forth by the Trial Examiner, I would find, contrary to the majority, that the Respondent failed and refused to bargain in good faith on the subject of pensions and employee benefits from the outset of the negotiations which began March 28 , 1949 . It follows there- fore that the strike of May 8, 1949, was an unfair labor practice strike, and that , to the extent found by the Trial Examiner , the Respondent ' s refusal to reinstate the strikers upon request was discriminatory. Because of the occurrence of these unfair labor practices, I would find, further, that the Respondent was not privileged to refuse to bargain with the Union at any time following the strike despite the pendency of the rival union's peti- tion. For, under well-established principles, no valid question concerning representation could exist while the Respondent ' s unfair labor practices remained unreme- died, L° and any loss of majority which might have occurred could be attributed to the Respondent's unlawful conduct. In the light of this holding as to the continuing duty of the Respondent to bargain , I would also find , in accord with the conclusion of the Trial Examiner , that the Respondent's unilateral increases in rates of pay and in employee bene- fits, constitute per se violations of Section 8 (a) (5) and (1) of the Act. In view of the foregoing, I need not and do not pass upon the other unfair labor practices issues considered by my colleagues. 20See N .L.R.B. v. Franks Bros., 321 U.S.702; John Deere Plow Company. 82 NLRB 69; Pacific-Gamble Robinson Co., 88 NLRB 482; Metropolitan Life Insurance Co., 91 NLRB 473. JOHN D. ROCHE, INC. and LOS ANGELES PRINTING PRESS- MEN & ASSISTANTS' UNION NO. 78, INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA, AFL, Petitioner. Case No. 21-RC-2913. June 8, 1953 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election ' issued by the Board on March 17, 1953, an election by secret ballot was conducted , under the supervision and direction of the Regional Director for the Twenty-first Region, on April 13, 1953, among letterpressmen and assistants employed by the Employer. The tally of ballots shows that, of approximately 12 eligible voters, 1Not reported in printed volumes of Board decisions. 105 NLRB No 55. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 cast votes for the Petitioner , 2 against the Petitioner, and 7 ballots were challenged by the Petitioner. Because the challenged ballots were sufficient in number to affect the results of the election , the Regional Director caused an investigation to be made, and , on April 24, 1953, issued his report on challenged ballots. In his report , the Regional Director recommended in substance that all the challenges be sustained. The Employer timely filed exceptions to the Regional Director's report. In addition to its exceptions to the Regional Director's determination as to the challenged ballots, the Employer ques- tions the eligibility of an employee who cast an unchallenged ballot, and requests the Board to reconsider the unit finding. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Houston , Styles, and Peterson]. In regard to the challenged ballots , the Regional Director found that John D. Roche, Jr., is the son of the Employer's president , and that the other six employees who cast challenged ballots--Burton B. Boettiger , JosephKendall, Ivan J. Crawford, Hubert Hutches, Joe Martinez , and Robert Clark-- only on rare and irregular occasions work as pressmen or assistants. The Regional Director recommended that the challenge to the ballot of Roche, Jr., be sustained because of his relationship to management and that the challenges to the remaining employees in question be sustained because they do not have a substantial interest in the terms and conditions of employment in the unit. The Employer in its exceptions does not controvert the facts found by the Regional Director. As to the ballot of Roche, Jr., in accord with the Board's customary practice of excluding such close relatives of management , we agree with the Regional Director and shall sustain the challenge to this ballot .' Concerning the other challenged ballots, the Employer contends that the Regional Director erred generally because the employees involved are capable of running the presses and have in the past been assigned to such work . The Employer concludes that these employees , therefore , have a substantial interest in the terms and conditions of employment within the pressmen's unit. We do not agree . As the Board has previously held, inclusion in the unit and eligibility to vote require substantial and regular employment within the designated unit, rather than occasional employment therein or ability to perform the work involved.' Accordingly, we shall sustain the challenges to the ballots of 2International Metals Products Company, 104 NLRB 1076 The Employer's contention that Roche, Jr., is being subjected to discriminatory legislation by reason of Section 2 (3) of the Act which excludes, among others, "any individual employed by his parent or spouse" is clearly without merit See N. L R. B. v. 0 U Hofmann 9, Sons. 147 F 2d 679 (C A. 3), en- forcing 55 NLRB 683. 9See West Texas Utilities Company, 100 NLRB 267 PRYNE & COMPANY, INC. 447 employees Boettiger, Kendall, Crawford, Hutches, Martinez, and Clark. Nor do we find merit in the Employer's contention that one employee, Kenneth Carter, who was permitted to vote an unchallenged ballot, should have been excluded on the ground that he also only occasionally works as a pressman . This is in the nature of a post-election challenge and, therefore, will not be considered by the Board. 4 Finally, we deny the Employer's request for reconsideration of the unit finding. This request is not only untimely,' but also presents no matters which warrant altering our prior deter- mination herein. As a majority of the eligible employees voting cast their ballots for the Petitioner, we shall certify that labor organ- ization as the exclusive bargaining representative of all the employees in the appropriate unit. [The Board certified Los Angeles Printing Pressmen & Assistants ' Union No . 78, International Printing Pressmen & Assistants ' Union of North America, AFL, as-the designated collective -bargaining representative of all letterpressmen and assistants at the Employer ' s Los Angeles , California , plant, excluding all other employees , guards , and supervisors as defined in the Act.] Chairman Herzog and Member Murdock took no part in the consideration of the above Supplemental Decision and Certi- fication of Representatives. 4 Westinghouse Electric Corporation, 91 NLRB 955, 963; N.L. R. B. v. A. J. Tower Company, 329 U . S. 324. 5 William R. Whittaker Co., Ltd., 94 NLRB 1151,1152. PRYNE & COMPANY, INC. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, (UE) LOCAL 1421. Case No. 21 -CA-1146. June 9, 1953 DECISION AND ORDER On May 9, 1952, Trial Examiner Howard Myers issued his Intermediate Report in the above - entitled proceeding , finding that Respondent had 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 Inter- mediate Report attached hereto. Thereafter, Respondent filed exceptions and a supporting brief. No exceptions were filed by the Intervenor Union' or by the General Counsel. 1 The International Brotherhood of Electrical Workers, Local 1710, AFL, intervened at the hearing. 105 NLRB No. 51.