Commercial and Industrial Life Insurance Co.

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that a question affecting commerce exists con- cerning the representation of the employees of the Employer within the meaning of Sections 9(c) (1) and 2 ( 6) and (7) of the Act. 4. We find, in accord with the stipulation of the parties, that the following employees constitute a unit appropriate for the purposes of collective bargaining : All employees of the Employer excluding executives , secretaries to executives, superintendents, confidential clerks, salesmen, professional employees, guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Commercial and Industrial Life Insurance Company and Sta- tionary Engineers Local Union No. 707, International Union of Operating Engineers, AFL-CIO. Case No. 23-CA-1001. October 12, 1960 DECISION AND ORDER On May 31, 1960, Trial Examiner Thomas N. Kessel issued his In- termediate Report 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 copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report. The Board i 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. The Board has considered the Inter- mediate Report,2 the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this 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, Commercial and Industrial Life Insurance Company, its officers, agents, successors, and assigns, shall : 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. s We correct a typographical error in the Intermediate Report. The date at the end of the last paragraph of III. Unfair Labor Practices is corrected to read, "February 10, 1960." 129 NLRB No. 44. COMMERCIAL AND INDUSTRIAL LIFE INSURANCE CO . 373 1. Cease and desist-from: (a) Refusing to bargain collectively with Stationary Engineers Local Union No. 707, International Union of Operating Engineers, AFL-CIO, as the exclusive bargaining representative of all its operat- ing and maintenance engineers, including the chief engineer and the apprentice engineer, at its Houston, Texas, office building, but exclud- ing all other employees and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Stationary Engineers Local Union No. 707, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of all the employees in the above-described unit, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Houston, Texas, copies of the notice attached to the Intermediate Report marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respond- ent's representative, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A 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 Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by International Union of Operating Engineers, Local 707, AFL-CIO,' herein called the Charging Party, the General Counsel of the National 'By amendment at the hearing the name of the Charging Party as appears on the charge and all other formal documents of this proceeding was changed to Stationary Engineers Local Union No. 707, International Union of Operating Engineers , AFL-CIO. In resisting the amendment, counsel for the Respondent was unable to offer any reason for belief that the Charging Party as named in the amendment is different from the Charging Party as named in the formal documents I am satisfied from the record that the correct name of the Charging Party is as shown by the amendment and that it is in fact the same party designated by other name in the charge and the other formal docu- ments in this proceeding. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board, by the Regional Director for the Twenty-third Region, issued his complaint dated April 7, 1960, against Commercial and Industrial Life Insurance Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and a notice of hearing were duly served upon the parties. The Respondent's answer denies the allegation of unlawful conduct in the complaint. Pursuant to notice a hearing was held at Houston, Texas, on May 10, 1960, before the duly designated Trial Examiner. All parties were represented by counsel or other representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. At the close of the hearing the parties stated their intention not to file briefs. Upon the entire record in the case and from observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE LABOR ORGANIZATION INVOLVED Stationary Engineers Local Union No. 707, International Union of Operating Engineers, AFL-CIO, is a labor organization which admits to membership the employees of the Respondent. H. PERTINENT COMMERCE FACTS The complaint alleges and the Respondent's answer admits that the Respondent is a Texas corporation having its principal offices and place of business in the C. & I. Life Building, Houston, Texas, and is the owner and operator of this building where it engages in the business of leasing and renting office and other space therein to various other business organizations; that in the 12-month period preceding issuance of the complaint the Respondent in the course of leasing and renting space in the foregoing building received gross revenues in an amount exceeding $100,000, of which $25,000 was derived from business organizations whose annual sales directly outside the State of Texas exceed $50,000. The Respondent's answer denies that it is engaged in commerce within the meaning of the Act and the answer further asserts that the Respondent's principal business is insurance, and that it owns the C. & I. Life Building where it has its principal offices, and occupies about 5 percent of the rentable area of the building with the remaining 95 percent being occupied by various tenants. Based upon the foregoing facts the Board, in a representation proceeding in which the Respondent was named the employer, Case No. 39-RC-1407, found that the Respondent was engaged in commerce within the meaning of the Act and that assertion of the Board's jurisdiction over its business would effectuate the policies of the Act, citing Mistletoe Operating Company, 122 NLRB 1534. I find in this proceeding that the Respondent is engaged in commerce within the meaning of the Act and that the Act's policies will be effectuated by assertion of the Board's jurisdiction over its business. III. THE UNFAIR LABOR PRACTICES On August 13, 1959, the Board, in Case No. 39-RC-1407, issued its Decision and Direction of Election finding that a unit of the Respondent's employees consisting of "all operating and maintenance engineers, including the chief engineer and the apprentice engineer employed by the employer at its Houston, Texas, office building but excluding all other employees and supervisors as defined in the Act" was appro- priate for representation and ordered an election among the employees in the aforesaid appropriate unit to determine whether they desire to be represented by the Charging Party in this proceeding. Pursuant thereto the Board conducted an election on September 15, 1959. The tally of ballots issued thereafter showed that among a total of six eligible voters four voted for representation by the Charging Party, one voted against, and one ballot was challenged. Thereafter, the Respond- ent filed timely objections to conduct affecting the results of the election. These objections were investigated by the Regional Director who, on October 19, 1959, issued a report recommending that the Board certify the Charging Party as the collective-bargaining representative of the employees in the appropriate unit. The Respondent subsequently filed timely exceptions to the Regional Director's report and recommendations. On December 1, 1959, the Board issued its Supplemental Decision and Certification of Representatives in which it adopted the findings and recommendations of the Regional Director and certified the Charging Party as the COMMERCIAL AND INDUSTRIAL LIFE INSURANCE CO . 375 collective-bargaining representative of the Respondent's employees in the appropriate unit. The complaint alleges that on or about January 20, 1960, and at various times thereafter, the Charging Party requested the Respondent to bargain with it with respect to rates of pay and other terms and conditions of employment for the employees in the foregoing appropriate unit and that on February 10, 1960, and at various times thereafter, the Respondent refused and continues to refuse to bargain collectively with the Charging Party, that it refuses to recognize the Charging Party as the exclusive bargaining representative of its employees in the appropriate unit, and that it refuses to meet and confer with it for the purpose of negotiating a collective-bargaining agreement for these employees. The Respondent's answer admits these allegations. The Respondent's justification for its refusal to meet with and to bargain with the Charging Party consists essentially of an attack upon the validity of the certificate issued by the Board to the Charging Party as exclusive bargaining representative. The Respondent maintains that for reasons set forth in its objections to conduct affecting the result of the election and in the excep- tions filed with the Board to the Regional Director's report on objections it was denied due process in the representation proceeding which resulted in the issuance of the certificate to the Charging Party by the Board. At the hearing the Respond- ent's counsel also mentioned' that the Respondent has never conceded that it is engaged in commerce within the meaning of the Act and also that the unit found by the Board is not appropriate for purposes of representation. I take it that the Respondent still challenges the assertion of jurisdiction by the Board over it in the representation proceeding as well as in this case and also contends that the Charging Party does not represent its employees in a unit appropriate for the purposes of collective bargaining. From my examination of the record in this case, which includes the record in the representation proceeding which resulted in the issuance of the Charging Party's exclusive bargaining certificate, I am satisfied that at no stage in the representation proceeding was the Respondent denied due process, but that its objections and excep- tions were given full consideration by the Regional Director and by the Board in accordance with the facts in the case and the law pertaining thereto and that the final dismissal of these exceptions by the Board was consistent with pertinent Board precedent. Because the Respondent has raised no issue in the instant proceeding which was not considered by the Board in the representation proceeding, and be- cause the Respondent has shown no change in any circumstance since the time of the Board's consideration of the facts and the issues in the representation pro- ceeding, there is now no basis for departure from or alteration of the Board's deter- mination. Accordingly, I find that the Charging Party is the certified exclusive bargaining representative of the Respondent's employees in the above-described appropriate unit and that the Respondent was obligated to bargain with it for these employees upon proper request. I find that such request was properly made and that from January 10, 1960, and thereafter the Respondent refused and still refuses to bargain with the Charging Party and thereby violated Section 8(a)(5) and (1) of the Act. W. 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 I, 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 com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bargain collectively with the Charging Party as the exclusive representative of the employees in the appropriate unit described herein. It will therefore be recom- mended that the Respondent bargain collectively, upon request, with the Charging Party as the exclusive representatives of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Commercial and Industrial Life Insurance Company is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Stationary Engineers Local Union No. 707, 'International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit of the Respondent's employees is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All operating and maintenance engineers, including the chief engineer and apprentice engineer, employed by the Respondent at its Houston, Texas, office building, but excluding all other employees and all supervisors as defined in the Act. 4. On December 1, 1959, and at all times thereafter, the Charging Party was, and now is, the representative of a majority of the Respondent's employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on February 10, 1960, and thereafter, to bargain collectively with the Charging Party as the exclusive representative of all its employees in ,the above- described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor-Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with Stationary Engineers Local Union No. 707, International Union of Operating Engineers, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All operating and maintenance engineers, including the chief engineer and apprentice engineer, employed at our Houston, Texas, office building, but excluding all other employees and all supervisors as defined in the Act. COMMERCIAL AND INDUSTRIAL LIFE INSURANCE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not ibe altered, defaced, or covered by any other material. Local Union 522, Lumber Drivers, Warehousemen and Handlers, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America and Republic Wire Corpo- ration. Case No. 22-CC-87. October 17, 1960 DECISION AND ORDER Upon charges filed on April 25, 1960, by Republic Wire Corpora- tion, herein called Republic, the General Counsel for the National 129 NLRB No. 45.