Kenedy Compress Co.

634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having ballots so easily obtainable that 1 voter got his without having it, handed to him, afford an insufficient basis for setting aside an elec- tion, I cannot, in this state of the record, reach the same conclusion concerning this alleged irregularity : Twenty-six unchallenged ballots were cast while only 25 voters were checked off on the eligibility list, a discrepancy which suggests the possibility that an unauthorized ballot may have been cast or that chain voting may have occurred, thereby voiding the election. While the Regional Director disposed of this allegation by finding that Schaffer, the only employee not checked off, actually cast the 26th ballot but that the observers in- advertently failed to check off his name, he has done so on the basis of conflicting evidence. Moreover, the Employer has excepted to these findings, thereby raising substantial and material factual issues. The regularity of elections is of vital importance to the administra- tion of the Act. Unless the requisite regularity is present, an elec- tion fails of its purpose and must be set, aside. I would, therefore, prefer a full exploration of the issue relating to the 26th ballot, as Js our practice where substantial and material factual issues exist,' before deciding that this election has served its purpose. This can be done by directing the requested hearing where testimony can be taken under oath and exposed to the searching light of cross-examination. I would so order. MEMBER PETERSON took no part in the consideration of the above Decision and Certification of Representatives. 1 Section 102.61 of the National Labor Relations Board Rules and Regulations , Series "6, as amended provides: "If exceptions are filed,.either to the report on challenged ballots, objections, or both if if be a consolidated report, and . . . it appears to the Board that such exceptions raise substantial and material factual issues, the Board may direct the Regional Director or other agent of the Board to issue and cause to be served upon the parties, a notice of hearing on said exceptions before a hearing officer." Kenedy Compress Company and International Chemical Work- ers Union, AFL. Case No. 39-CA-418. October 04,1955 DECISION AND ORDER Upon charges duly filed by International Chemical Workers Union, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixteenth Region of the Board, issued a complaint dated August 12, 1954, against Kenedy Compress Company, herein called the Respondent, al- leging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the Act. Copies of the charges, the com= 114 NLRB No. 105. ^ KENEDY COMPRESS COMPANY 635 plaint, and-a notice of hearing thereon were duly served upon the Re- spondent and the Union. The complaint alleges, in substance, that a majority of the employees of the Respondent had selected the Union as their exclusive bargaining representative, but that since on or about May 20, 1954,,the Respond- ent has refused to bargain with the Union as the exclusive bargaining representative of its employees. The Respondent filed an answer on August 20,1954, denying the commission of any unfair labor practices. On August 20,1954,`the parties and the General Counsel entered into stipulation which set forth an agreed statement of facts. The stipulation also provides that the parties thereby waive their rights to a hearing, the issuance of an Intermediate Report, and a proposed de- cision and order of the Board. The stipulation further provides that, upon such stipulation and the record as therein provided, the Board may make findings of fact, conclusions of law, and may issue its De- cision and Order as if the'same facts had been adduced in open hearing before a duly authorized Trial Examiner of the Board. Thereafter, at the Board's request, the parties and the General Counsel entered into supplemental stipulations for the purpose of augmenting the original stipulation of facts with respect to the matter of the Respond- ent's involvement in interstate commerce. The aforesaid stipulations are hereby approved and accepted and made a part of the record in this case. Upon the basis of the aforesaid stipulations, and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation, is engaged in the business of storing, baling, rebaling, and shipping cotton. It derives its entire revenue from performing these and related services upon cotton for its customers. The Respondent does not have legal title to any of the cot- ton it handles. During a recent representative 12-month period, the Respondent handled in excess of $1,000,000 worth of cotton, 85 per- cent of which it shipped to points outside the State of Texas. The total amount of revenue received for such services during this period was in excess of $128,000. It thus appears that the Respondent re- ceives in excess of $100,000 per year for its warehousing and shipping services which constitute a part of interstate commerce. The Re- spondent concedes it is engaged in interstate commerce. As the Re- spondent's warehouse and shipping activities constitute a link in the chain of interstate commerce and its annual income received for 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these services exceeds $100,000 per year, we find that it will effectuate the purposes of the Act to assert jurisdiction in this case.' II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that the Union is a labor organi- zation within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Pursuant to an agreement for consent election between the Respond- ent and the Union, an election was held on January 21, 1954, among the employees of the Respondent in the following described unit : All production and maintenance employees of the Kenedy Compress Company employed at its Compress, exclusive of its clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. The majority of the employees voting in the election voted for the Union and, as a result, the Union was certified by the Board on Jan- uary 29, 1954, as the exclusive representative for purposes of collective bargaining, of the employees in the above-described appropriate unit. Following its certification, the Union, on April 10, 1954, and again on May 20,1954, requested the Respondent to bargain collectively with it as the exclusive bargaining agent for the employees in the above- described unit. Prior to the Union's request for bargaining on May 20, 1954, the Respondent received signed statements from. a majority of the employees in the unit here involved, stating that these employees no longer desired the Union to represent them. Taking the position that in these circumstances it was under no duty to bargain with the Union, the Respondent, on May 20, 1954, and at all times since, has refused to bargain with the Union. ` From its brief submitted herein, it is apparent that the Respondent relies solely upon the repudiation of the Union by a majority of the employees in the unit, as a defense to its admitted refusal to bargain with the Union. It is, however, now well settled that, absent special circumstances, a union's majority status is conclusively presumed to exist for a period of 1 year following the union's certification, and that repudiation of the union by a majority of the employees in the unit is not such a special circumstance as to affect this presumption.2 - The Respondent, by its admitted refusal to bargain with the Union on and after May 20, 1954, failed to honor the Board's certification. Accordingly, on the basis of the entire record before us, we find that ? Dallas Transfer & Terminal Warehouse Company, 114 NLRB 18. See also Eti,wan Fertilizer Company, 113 NLRP. 93 2 Ray Brook,i v. N. L R. B., 348 U S. 96; Seaboard Lemon Assooiation, 112 NLRB 130. See also , Genesee Foundry Company, Inc, 109 NLRB 1253, 1255. KENEDY COMPRESS COMPANY 637, the Respondent has violated, Section 8 (a) (5) and (1) of the Act by refusing, on and after May 20, 1954, to bargain with the Union as the exclusive bargaining representative of the employees in the appropri- ate unit herein described. 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 Respondent de- scribed in section I, above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent violated Section 8 (a) (5) and (1) of the Act, by refusing to bargain with the Union, we shall order the Respondent to cease and desist therefrom and take certain affirma- tive action which we find necessary to effectuate the policies of the Act. Because of the limited scope of the Respondent's refusal to bargain, and because of the absence of any indication that danger of other unfair labor practices is to be anticipated from the Respondent's con- duct in the past, we shall not issue a broad order in this case. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Chemical Workers Union, AFL, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. Kenedy Compress Company is an employer within the meaning of Section 2 (2)' of the Act. 3. Certain employees of the Respondent described in section III, above, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 4. International Chemical Workers Union, AFL, was, on May •20, 1954, and at all times thereafter has been, and is, the certified and ex- clusive representative of all the employees in the appropriate unit described in section III, above, for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. 15. By refusing on May 20, 1954, and at all times thereafter, to bar- gain collectively with the International Chemical Workers Union, AFL, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6: By the aforesaid refusal to bargain, the Respondent has inter- fered with, restrained, and coerced employees in the exercise of. the rights guaranteed in Section 7 of the Act, and 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 affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Kenedy Compress Company of Kenedy, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with Inter- national Chemical Workers Union, AFL, as the exclusive representa- tive of its employees in the appropriate unit described in section III of this Decision and Order. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Chemical Workers Union, AFL, as the exclusive bargaining representative of its employees in the appropriate unit described in section III of this Decision and Order, with respect to wages, rates of pay, hours of em- ployment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at Kenedy, Texas, where the employees in the appropriate unit are employed, copies of the notice attached hereto and marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. ACTING CHAIRMAN RODGERS took no part in the consideration of the above Decision and Order. 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 "Pursuant to a Decision and Order" the words "Pursuant to a Deciee of the United States Court of Appeals , Enforcing an Order.". CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN, ETC. APPENDIX NOTICE TO ALL EMPLOYEES 639 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 bargain collectively with International Chemical `Workers Union, AFL, as the exclusive representative of our em- ployees in the appropriate unit described below, with respect to wages, rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. All production and maintenance employees of the Kenedy Compress Company employed at its Compress, exclusive of its clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. KENEDY COMPRESS COMPANY, Employer. Dated---------------- By----= ------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L.. and Marsh Foodliners, Inc. Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 369 of Muncie, Indiana, 'affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L. and Marsh Foodliners, Inc. Cases Nos. 35-CC-28 and 35-CC-29. October 24 1955 DECISION AND ORDER On June 17,1955, Trial Examiner Louis Plost issued his Intermedi- ate Report in the above-entitled proceeding, finding that Respondent Local 135 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 copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that 114 NLRB No. 108.