Penn Central Containers, Inc.

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities for the purpose of collective-bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. HAROLD MILLER, HERBERT CHARLES AND MILTON CHARLES, CO-PARTNERS, D/B/A MILLER-CHARLES AND COMPANY, Employer. Dated------------------- By--------------=---------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. Penn Central Containers, Inc. and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO. Case No. 4-CA-3108. March 20, 1964 DECISION AND ORDER On December 16, 1963, Trial Examiner Federick U. Reel issued his Decision in the above-entitled proceeding, finding that the Re- spondent 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 attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief, 'and the Gen- eral Counsel filed a brief in support of the Trial Examiner's Decision. 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 McCulloch and Mem- bers Leedom and Brown]. The Board 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent herewith. The Trial Examiner found, 'and weagree, that by refusing on and after September 17, 1963, to bargain with the Union which was the certified representative of the Respondent's employees, the Respond- ent violated Section 8 (a) (5) and (1) of the Act. The election upon which the Union's certification was based was held pursuant to a consent-election 'agreement. The Respondent contended, inter alia, that the consent-election agreement had' been conditioned upon the Union agreeing to the eligibility list which it had submitted to the 146 NLRB No. 57. PENN CENTRAL CONTAINERS, INC. 415 Union, and that the consent-election agreement was vitiated because the Union failed to 'agree to the eligibility list, and, in addition, sought to cause two former employees, whose names were not on the eligibility list and whose ballots were challenged by the Respondent, to vote at the election. We find no merit in this contention. Thus, as the election agreement which the Respondent executed made no ref- erence to any agreed-upon eligibility list, and as the Respondent's letter to the Union regarding the consent agreement also made no reference to the eligibility list as a condition to the execution of the consent agreement, there is no factual foundation for the Respond- ent's assertion that agreement upon an eligibility list was a condition of the election agreement.' Consequently, there is no factual war- rant for a conclusion that the Union's conduct vitiated the election agreement.2 Even assuming that- the Respondent's letter to the Union could somehow be deemed to modify the express provisions of the agreement which the Respondent executed, we would nevertheless reach the same conclusion for the reason that zany deviation from the terms of such an agreement would on this record be immaterial and nonprejudicial. We note particularly in this connection that the ballots of the two assertedly ineligible voters, which -were not counted, could not in any event have affected the results of the election.' As we have found no warrant for concluding that the election agreement was vitiated, and as there is no basis for concluding that the Regional Director's rulings pursuant to that agreement were ar- bitrary or capricious, it follows that the Union's 'certification was valid. We therefore conclude, in agreement with the Trial Examiner, that the Respondent unlawfully refused to bargain with the Union as the certified representative of the Respondent's employees. ORDER The Board adopts as its Order, the Recommended Order of the Trial Examiner.4 1 We note in this connection that It appears from the record that the Respondent had a choice, as an alternative to the agreement which it executed , of executing an election agreement which incorporated an agreed -upon eligibility list. 2 We do not believe that oral statements by Respondent to the representative of the Regional Director . not communicated to the Union , that it would agree to a consent elec- tion if no questions existed concerning the eligibility list were effective to modify the plain terms of the election agreement. 3 See N.L R.B . v. Huntsville Manufacturing Company, 203 P, 2d 430, 434 (C A. 5). 1 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: 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 Respondent, Penn Central Containers , Inc., its officers, agents, successors, and assigns, shall: 744-670-65-vol. 146-28 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, heard before Trial Examiner Frederick U. Reel at Williamsport, Penn- sylvania, on November 18, 1963,1 pursuant to a charge filed September 18 and a complaint issued October 10, presents the question whether the certification of the Charging Party as bargaining representative of Respondent 's employees was in any way invalid so as to privilege Respondent's refusal to bargain . Upon the entire record in this matter,2 including the record in the related representation proceeding, Case No. 4-RC-5454, and after due consideration of the briefs filed by Respondent and by General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent , herein called the Company, is a Pennsylvania corporation engaged at Williamsport in the manufacture , sale, and distribution of fiberboard shipping con- tainers. As it purchases over $50,000 worth of goods directly from outside Penn- sylvania, the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party, herein called the Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE A. The events leading to the election Following an organizing campaign at the Company's plant, the Union filed with the Board's Regional Office a petition for certification as representative of the Com- pany's production and maintenance employees . In due course a representative of the Regional Director asked company counsel if a consent election could be agreed upon. Company counsel replied that such an election would be in order, provided that certain leadmen were eligible to vote and that no other questions existed con- cerning the eligibility list. Thereafter, company counsel executed a consent -election agreement which on May 20 he forwarded to the union representative along with a payroll list. In his letter of that date, company counsel advised the union representa- tive that the payroll list embraced the employees on the payroll ending May 15, the eligibility date for the election , and that anyone on that payroll would be eligible to vote "except any quits or discharges for cause ." The name of Donald Beck, which appeared on the list, was stricken by company counsel who wrote in the word "quit" after Beck's name ; Beck's employment had in fact terminated on May 20. The list did not include the names of David Hill and Merrill Lambert , who had at one time been in the Company's employ, but who were not so employed on May 15. Lambert had been discharged on April 17 , and the date of Hill's departure is not shown in the record. In sending the election agreement and payroll list to the union representative, com- pany counsel noted that he had signed the agreement and initialed each page of the list. He requested that the union representative do likewise and then forward the documents to the Regional Office . The union representative signed the agreement but did not initial the list, and forwarded both documents as requested . In a letter to the Regional Office accompanying these documents, the union representative stated that "the list may not accurately reflect all employees eligible to vote in this election and I trust this matter can be cleared up prior to the time of election ." Company counsel was no aware until the election was about to commence that the union repre- sentative had not initialed the list. The consent agreement recited in part that "the determination of the Regional Di- rection shall be final and binding upon any question , including questions as to the eligibility of voters , raised by any party hereto relating in any manner to the elec- tion." It further provided that "the method of investigation of objections and chal- lenges, including the question whether a hearing should be held in connection there- with, shall be determined by the Regional Director , whose decision shall be final and binding." 'All dates herein are to the year 1963.- 2 The typewritten transcript contains an unusual number of typographical errors, most of which are too self-evident to require correction . The word "wouldn't" at page 29, line 10, is hereby corrected to read "would". PENN CENTRAL CONTAINERS, INC. 417 On June 19 , 2 days before the election, the Union announced that it had filed a charge alleging that the Company had discharged Beck and Lambert for union ac- tivaty ,and had thereby violated Section 8(a)(3) and ( 1) of the Act. The charge, which was received in the Regional Office on June 20, also referred to Hill, but did not include him as one of the employees unlawfully discharged . The Company learned of this charge through a local radio broadcast on June 19 . That same day, according to the Regional Director 's later report on objections , the Company's reply to the charge was broadcast over the same station. The next day, according to the Regional Director's report, the Company posted on its bulletin board a reply to the charge. On the evening of June 20 , the Union conducted a meeting attended by a number of the Company 's employees. At this meeting Union Organizer Hunt urged the employees to vote for the Union the next day. ' At the hearing before me Respond- ent offered to prove that Hunt told the employees that if they thought "anything of Beck and Lambert and wanted them to get their jobs back " they would "vote for the Union." Respondent also offered to prove that this statement caused one em- ployee, "to change his mind and vote for the Union ." Respondent further offered to prove that Lambert had attended the meeting and told two employees that he would get his job back if the Union - won the election. General Counsel objected to these offers of proof on the ground that Respondent could not relitigate matters settled by the Regional Director pursuant to the consent agreement in the repre- sentation case. B. The election and its aftermath At the election, held the afternoon of June 21 , company counsel learned for the first time that the union representative had not initialed the eligibility list prepared by the Company . That list, however, was used in the conduct of the election. Two names, those of Gamble and Rinker, were stricken from the list at the outset of the election on the representation of company counsel that they had quit. Each of the remaining 76 employees on the list cast a ballot. Beck and Lambert also cast bal- lots which were challenged . The election was won by the Union, 40 to 36, with 2 ballots challenged and uncounted. The Company promptly filed objections to the election , urging, inter alia, that the election should be set aside because of the Union 's representations at the June 20 meeting that Lambert and Beck would be reinstated if the Union won the election, because the Union timed the filing of its unfair labor practice charge with respect to Lambert and Beck in an effort to interfere with the employes' free choice in the elec- tion, and because the Union , after agreeing to a consent election, had sought to have Beck nand Lambert vote, although they were not on the eligibility list, and had them appear at the polls "in an effort to unduly influence the employees." The Com- pany did not at this time urge that the consent -election agreement was vitiated by the lack of preelection agreement on the .eligibility list. The Regional Director in- vestigated the objections raised by 'the Company, and on August 7 issued a report dismissing the objections and certifying the Union. In the course of his report, the Regional Director noted that the Union's alleged statements with respect to the rein- statement of Beck and Lambert, if made, "would appear to be in the nature of elec- tion propaganda which the Board believes employees are capable of evaluating." The Regional Director further observed that the lack of agreement on the eligibility list did not affect the validity of the election , and that even if the Union had initialed the' eligibility list, it could have sent the two alleged discriminatees to the polls to cast challenged ballots. The Regional Director considered and rejected the con- tention that the Union had not acted in good faith in sending Lambert and Beck to the polls, and further stated that their presence at the polls did not interfere with employee freedom of choice, was not shown to have influenced the election , and did not constitute improper propaganda. On August 9, the union representative spoke to the company president in an effort to initiate bargaining and advised the Company that the Union was withdrawing the unfair labor practice charge and would bring the matter up in the process of negotiation . On August 13, the Company filed with the Board a petition for leave to file exceptions to the Regional Director 's report, but the Board in a letter dated •September 5, advised the Company that the Board would not entertain the petition. In -the course of its petition , the Company urged that its participation in the consent election had been conditioned upon the absence of any disagreement over the eligibility list. In rejecting the petition, the Board noted that "Full agreement on the eligibility list was not a condition of executing the consent agreement, and it is common Board practice to resolve eligibility questions by permitting the casting of challenged ballots." 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 9 and 17, after the Board's notification to the Company, as well as on several occasions prior thereto, the Union unsuccessfully sought to bargain with the Company. On September 17, the Company took the position that it would refuse to bargain, as it continued to challenge the validity of the election and of the Union's status. C. Concluding findings As noted above, the Board in rejecting the Company's petition for leave to file exceptions to the Regional Director's report stated that the lack of full agreement on the eligibility list did not vitiate the consent-election agreement. Moreover, the failure of the Company to include this ground among its original objections con- stitutes a waiver of objection on this ground. See N.L.R.B. v. The Deutsch Com- pany, 265 F. 2d 473, 478 (C.A. 9), cert. denied 361 U.S. 963; Section 102.69 of the Board's Rules and Regulations. The consent agreement left to the Regional Director the final and binding determination of questions relating to the election. The Regional Director has resolved the issues raised by the Company in a manner which in my judgment was not arbitrary or capricious. Cf. N.L.R.B. v. General Armature & Mfg. Co., 192 F. 2d 316, 317 (C.A. 3), footnote 1, cert. denied 343 U.S. 957. In the light of the Board's and Regional Director' s rulings, it is perhaps supererogatory for me to add that both seem to me plainly correct, and that even if these matters were before me for de novo consideration, I should, on the record before me, reach the same conclusions. Even if the Union had initialed the payroll list, and indeed even if the parties had reached a binding agreement on eligible voters, the result of the election would have been the same. Such agreement would not have precluded the Union from filing a charge on behalf of Lambert and Beck, or from urging in its campaign that it would seek their reinstatement. The abandonment of the charge does not indicate that it was filed in bad faith, as the abandonment was accompanied by a declaration that the Union would seek to pursue the matter in the course of negotiations. And, even if inquiry into such matters were to be permitted, the most the Company has shown when given the widest possible latitude is that one vote was affected by the propaganda, not enough to have affected the result of the election. Finally, the Company, having signed a consent agreement which ex- pressly contemplated that the Regional Director would rule on eligibility questions, cannot be heard to say that its consent was conditioned on there being no such questions, particularly when the Company went through with the election after learning that such questions existed. In short, the Company fails in its attack on the consent agreement, fails in its attack on the Regional Director's action, and fails in its effort to show that the election was anything but a fair expression of the will of the employees. See N.L.R.B. v. Huntsville Manufacturing Company, 203 F. 2d 430, 434 (C.A. 5), where in rejecting the "technical point that the election being a consent election any departure from the terms of the consent, no matter how unimportant or whether it had, or could have, any effect on the election, voided it," Judge Hutcheson stated for the court "the mere fact that one of the parties to the agreement failed in one or more particulars to act as he had agreed to act could not invalidate the election unless the respect in which there was a failure had an unfair, unjust,or otherwise untoward effect upon the election." The Union-won a majority of the votes in an election in which 100 percent of the eligible voters cast ballots. Its certification was valid, and the Company's subsequent refusal to bargain with it violated Section 8(a) (5) and (1) of the Act. For that matter, even if the certification were invalid, the Company knew that of the 76 employees it considered eligible to vote, 40 had voted for the Union, and the employer's statutory duty to bargain with the majority representative is not conditioned on the existence of a certification. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, footnotes. M. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act, I will recommend that it cease and desist therefrom and (adopting the language prescribed by the Supreme Court in N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 439) from "in any manner interfering with the efforts of the [Union] to bargain collectively with [the Company]." I will further recommend that Respondent take certain affirma- tive action in order to effectuate the policies of the Act. PENN CENTRAL CONTAINERS, INC. 419 CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at the Respondent's Williamsport, Pennsylvania, plant, including truckdrivers and leadmen, but excluding all executive and office clerical employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. 3. The Union, since the date of its certification, August 7, 1963, has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing, on and since September 17, 1963, to bargain collectively with the Union as the representative of the above employees, Respondent has engaged in and is engaging in an unfair labor practice affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the , Respondent, Penn Central Contaniers, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with International Brotherhood of Pulp, Sulphite, and Paper Mill Workers , AFL-CIO, as the exclusive representative of the employees in the following appropriate unit : All production,and maintenance em- ployees of Respondent's Williamsport, Pennsylvania, plant, including truckdrivers and leadmen , but excluding all office clerical employees, executive employees, and all supervisors as defined in the Act. (b) In any manner interfering with the efforts of the above named Union to bargain collectively with the above-named Company on behalf of the employees in the above-described unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the ex- clusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant at Williamsport, Pennsylvania, copies of the attached notice marked "Appendix." 3 Copies of such notice , to be furnished by the Regional Director for the Fourth Region, shall , after being signed by an authorized repre- sentative of the Respondent , be posted immediately upon the 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 such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .4 'In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a- decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order " 4 In the event that this Recommended Order be adopted by. the Board, this provision shall be modified to read, "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." ' APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended , Order 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 : - ,,,_, 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with the efforts of International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, to bargain collectively as the exclusive representative of the employees in the bargaining unit described below. WE WILL upon request, bargain with International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our Williamsport, Pennsylvania, plant, including truckdrivers and leadmen, but excluding all office clerical employees, executive employees, and all super- visors as defined in the Act. PENN CENTRAL CONTAINERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612, if they have any question concerning this notice or com- pliance with its provisions. Texas Coca-Cola Bottling Company and Local 826, International Union of Operating Engineers, AFL-CIO. Cases Nos. 16-CA- 1762 and 16-CA-185.11. March 20, 1964 DECISION AND ORDER On December 5, 1963, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and wa.s engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. 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 McCulloch and Members Leedom and Brown]. The Board 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 Trial Ex- aminer's Decision, the exceptions, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. i The Trial Examiner Inadvertently failed to make a finding as to the appropriate unit which, as certified, consists of all employees employed at the Respondent's Big Spring, Texas, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. 146 NLRB No. 58.