Houston Chronicle Publishing Co.

HOUSTON CHRONICLE PUBLISHING COMPANY 703 3. By inducing and encouraging individuals employed by D. M. Picton and Co., Inc., Dixie Carriers , Inc., and other persons to engage in a strike or refusal to per- form services for their employers, and by threatening , coercing, and restraining D. M. Picton & Co., Inc., and Dixie Carriers , Inc., with an object of forcing said companies to cease doing business with Gulf Oil Corporation , Pure Oil Company, Lykes Bros. Steamship Co., Inc., Atlantic Refining Company , Sun Oil Company, and other com- panies, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (4) (i ) and (ii ) (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.] Houston Chronicle Publishing Company and Houston News- paper Guild, Local 113, of American Newspaper Guild, AFL- CIO. Case No. 23-CA-1007. May 22, 1961 ORDER DENYING PETITION FOR RECONSIDERATION On March 7, 1961, the Board issued a Decision and Order in this proceeding,' in which the Board found that the Respondent, Houston Chronicle Publishing Company, had unlawfully refused to bargain with the Union, Houston Newspaper Guild, Local 113, of American Newspaper Guild, AFL-CIO, as the certified representative of the Respondent's employees in an appropriate unit, and in which it or- dered Respondent to cease and desist therefrom and take certain af- firmative action, which the Board found would effectuate the policies of the Act. On March 16, 1961, Zeena Jackson, who has not heretofore been a party to these proceedings, filed,the instant "Intervention and Motion for Reconsideration." Subsequently the General Counsel and the Union each filed an opposition to Zeena Jackson's motion, and Zeena Jackson thereafter filed a reply to the oppositions to her motion. The petition for reconsideration requests that the Board set aside the election of October 15, 1959, the certification of representatives dated March 11, 1960, and the Decision and Order of March 7, 1961. The petition further requests that a new election be directed in a unit modified to include Zeena Jackson and two other alleged employees excluded from the unit by agreement of the Respondent and the Union. In support of her motion, Zeena Jackson contends that she and two other alleged employees, Rickard and McLemore, who are referred to in the Board's Decision and Order, were improperly excluded from the bargaining unit found appropriate; that their exclusion from the said unit renders the unit inappropriate; that these three alleged employees have unlawfully been denied their right to vote in the election and denied their right to be represented by the bargaining agent for the employees of the Respondent. 1130 NLRB 1243. 131 NLRB No. 93. 704 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the record in these proceedings, it appears that these cases were initiated by the filing of the petition for certification of repre- sentatives by the Union on July 29, 1959. The Respondent and the Union then executed a stipulation for certification upon consent elec- tion on August 27,1959. Appended to and made a part of this agree- ment was a payroll list of the employees of the Respondent's editorial department. The names of Jackson, Rickard, and McLemore were listed, with a notation "A.P." beside the name of each. At the urging of the Respondent, who stated that these employees were thought to be employees of The Associated Press and not employees of Respond- ent, the Union agreed to delete their names and that they should not be included in the unit. Their names were thereupon stricken from the list of eligible voters. The agreed-upon election was conducted October 15, 1959. The notices of election were posted conspicuously in the required locations 3 or more days prior to the election, and listed as eligible to vote "all employees" of the Respondent's editorial department. One hundred and nine of one hundred and eleven eligible voters voted in the elec- tion, but neither Jackson, Rickard, or McLemore voted or attempted to vote. There were challenges to certain ballots, and objections to the con- duct of the election. The Regional Director issued his report on chal- lenges and objections on December 31, 1959, to which exceptions were filed. The Board issued its Decision and Direction 2 in which it ruled on the exceptions on February 29, 1960. Pursuant to this direction, the Union was certified as representative of the unit in which the elec-, tion was held on March 11, 1960. Thereafter, the Respondent refused to bargain with the Union. Among the contentions raised by the Respondent were two somewhat inconsistent contentions relating to the status of Jackson, Rickard, and McLemore.' The Respondent contended that the Union had made an improper request to bargain for "all employees," asserting that the request was invalid because it purported to include Jackson, Rickard, and McLemore. Conversely the Respondent argued, as does Jackson in the instant motion, that if the unit were construed to exclude these three alleged employees, the unit was inappropriate, because the ex- clusion denied the alleged employees' legal rights. On April 8, 1960, the General Counsel issued a complaint alleging that Respondent, in refusing to bargain, had violated Section 8(a) (5) of the Act. A hearing was held before a Trial Examiner on May 4, 1960. One of the issues which arose at the hearing was whether Jackson, Rickard, and McLemore were or were not employees of Respondent in its editorial department. Respondent, though af- forded the opportunity, adduced no evidence as to their status. The Trial Examiner's Intermediate Report issued on July 29, 1960. The 2 Not published is NLRB volumes. HOUSTON CHRONICLE PUBLISHING COMPANY 705 Board issued its Decision and Order March 7, 1961, adopting the Trial Examiner's finding that the Respondent had unlawfully re- fused to bargain for an appropriate unit. which excluded Jackson, Rickard, and McLemore. The Board ordered Respondent to bargain with the Union for this unit. On March 16, Jackson filed the instant motion, requesting in effect, that the Board void every action taken in the above-described pro- ceedings, which were initiated almost 2 years ago. Jackson now pro- tests that the August 27, 1959, agreement arbitrarily denied her, Rickard, and McLemore the right to vote. It is not alleged, however, that the exclusion of Jackson or the two others from the eligibility list was known to them or had any casual relationship to the fact that none of the three made an attempt to vote in the election. So far as appeared from the posted notices of election these three alleged em- ployees, if employees, were eligible to vote. If they had been suffi- ciently interested in voting, they could have appeared at the polls, where they would have been permitted to vote challenged ballots, and a determination of the propriety of their exclusion or inclusion would then have been made by the Board. If they were in fact without knowledge that the eligibility list excluded them, their failure to attempt to vote appears to be attributable to disinterest. If they had knowledge of their exclusion by the agreement, it was at least incum- bent on them to attempt to vote by challenged ballot, or in some other manner protest to the Board, or its agents, their exclusion from the appropriate unit and the denial of their asserted right to vote. The circumstances of the instant case are distinguishable in sev- eral major respects from those relied on by the Fifth Circuit Court of Appeals in the Shoreline Enterprises 3 case, cited by Zeena Jackson, in support of her motion. In that case, Board agents were apprised before the election that the excluded employees were in work classifi- cations like those in the unit; at least one of the employees attempted to vote, and that employee and the others were precluded from vot- ing by the mistaken insistence of the Board agent that it was not permissible for them to vote. None of these factors is present in the instant case. In these circumstances, we find that Zeena Jackson's "Intervention and Petition for Reconsideration" is untimely and without merit, and we will deny it. [The Board denied the intervention and petition for recon- sideration.] CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Order Denying Petition for Reconsidera- tion. sShoreline Enterprises of America , Inc. v. N.L.R.B., 262 F. 2d 933 ( C.A. 5). 599198-62-vol. 131-4 6