Jay's Foods, Inc.

310 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD 3. On and after July 1, 1963, the Union has been the exclusive bargaining repre- sentative of all employees in the following described unit for the purposes of col- lective bargaining with respect to, rates of pay, wages , hours of employment, and other terms and conditions of employment. 4. The appropriate unit of Respondent's employees consists of all employees at Respondent's Santa Cruz, California, operation, excluding all meat department em- ployees, guards, and supervisors as defined in the Act, and constitutes a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. Since July 1, 1963, Respondent has refused, and continues to refuse, to recog- nize the Union as the exclusive bargaining representative of its employees-in the above-described unit, thereby violating Section 8 (a)(1) and (5) of the Act. 6. On July 6, 1963, the Respondent unilaterally instituted a wage increase at a time when the Union represented a majority of its employees, thereby violating Sec- tion 8(a)(1) and (5) of the Act. [Recommended Order omitted from publication.] Jay's Foods, Inc. and Local Union No. 1, American Bakery & Confectionery Workers International Union , AFL-CIO, Peti- tioner. Case No. 13-RC-9650. August 11, 1964 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election issued September 23, 1963, by the Regional Director for Region 13, an election by secret ballot was conducted on October 9, 1963, under the direction and super- vision of the Regional Director in the unit found appropriate. At the conclusion of the balloting, the parties were furnished a tally of ballots, which showed that, of approximately 216 eligible voters, 212 cast valid ballots, of which 84 were for, and 116 were against, the Peti- tioner, and 8 ballots were challenged and 4 were void. Thereafter,, the Petitioner filed timely objections to conduct allegedly affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and on December 13, 1963, issued and duly served upon the parties his Supplemental Decision and Notice of Hearing, ordering that a hearing be conducted ,before a Hearing Officer for the purpose of resolving the issues of credibility raised by Petitioners' objections Nos. I-A-3 and I-B, and directing that the Hearing Officer prepare and serve upon the parties a report containing resolutions of issues of credibility of witnesses, findings of fact, and recommendations to the Regional Director as to the disposi- tion of the said objections. Pursuant to the above order, a hearing was held beginning on Jan- uary 14 and ending on January 22, 1964, before Hearing Officer Arnold E. Charnin. All parties participated and were given full opportunity to examine and cross-examine witnesses , and to introduce evidence bearing on the issues. On February 11, 1964, the Hearing 148 NLRB No. 34. JAY'S FOODS, INC.' 311 Officer issued and served upon the parties his report on objections in which he made findings of fact' with respect only to objection No. I-A' and recommended that the election be set aside and a new elec- tion conducted. The Employer on February 18,'1964, filed' exceptions to the Hearing Officer's report. On March 2, 1064, the Regional Director issued his Second Supple- mental Decision and Direction of Second Election, adopting the Hearing Officer's findings and recommendations. Thereupon, the Employer on March 11, 1964, filed with the Board a petition, for review pursuant to Sections 102.67 and 102.69 of the Board's Rules and Regulations, Series 8, as amended. The Employer alleged, among other things, that the Hearing Officer's findings on substantial legal and factual issues were clearly erroneous and that the Regional Direc- tor's decision adopting the Hearing Officer's findings constituted prej- udicial errors. , The Board, by order dated April 20, 1964, remanded the proceeding to the aforesaid Hearing Officer, instructing him to prepare and serve upon the parties a supplemental report containing a discussion of credibility issues and resolutions thereof together with the reasons therefor, and to make adequate findings of fact and recommendations to the Board as to the disposition of the issues herein, and to forward the same to the Board for further proceedings. Thereafter, on May 11, 1964, the Hearing Officer issued and served upon the parties his supplemental report on objections, in which he discussed and resolved credibility issues, made findings of fact and recommended that objections Nos. I-A and I-B be sustained, that the election held on October 9, 1963, be set aside and a new election di- rected. The Employer filed timely exceptions to this report and.a supplemental brief. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Brown]. Pursuant to the Employer's petition for. review, the Board hereby grants review. The Board has considered the Hearing Officer's sup- plemental report, the Employer's exceptions and briefs,2 and the entire record in the case, and hereby adopts the Hearing Officer's .findings,' conclusions, and recommendations that objections Nos. I-A 'It is evident that the objection referred to as I-A-3 by the Hearing Officer was in- tended to encompass all the paragraphs under objection No. I-A. 2 The Employer has requested oral argument. This request is hereby denied because the record, the exceptions , and briefs adequately present the issues and the positions of the parties. 3 The Hearing Officer's findings that the Employer interfered with the election involved essentially issues of credibility which were resolved in favor of the Petitioner's witnesses and against the Employer's witnesses We have examined the record carefully and find no basis for overruling such credibility determinations Accordingly, we find no merit in the Employer's allegations that by such credibility determinations , the Hearing Officer exhibited bias and prejudice 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I-B be sustained, that the election held on October 9, 1963, be set aside and a new election be directed. [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] Imco Container Company of Harrisonburg, a Division of Con- solidated Thermo-Plastics Company and Textile Workers Union of America, AFL-CIO. Case No. 5-CA-2425. August 14, 1964 DECISION AND ORDER On February 27, 1964, Trial Examiner John P. von Rohr 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. The Trial Examiner also found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these allegations be dis- missed. Thereafter, the Respondent and the Union filed exceptions to the Trial Examiner's Decision, and the Respondent filed a support- ing brief. 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 of the Trial Examiner made at the hearing and finds, as discussed hereinafter, 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 Trial Examiner's findings, conclusions, and recommendations. As reflected in his Decision, the Trial Examiner granted the Gen- eral Counsel's posthearing motion to dismiss the allegation of the complaint that the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) of the Act. The Union has excepted to this ruling, as well as to a related procedural ruling made by the Trial Examiner at the hearing with respect to the Union's authoriza- tion cards. We agree with these rulings of the Trial Examiner for the following reasons : At a pretrial conference attended by representatives of the General Counsel, the Union, and the Respondent, the cards upon which the 148 NLRB No. 32.