Schapiro & Whitehouse, Inc.

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further recommend the dismissal of paragraph 11 of the consolidated complaint. APPENDIX NOTICE TO ALL EMPLOYEES As recommended by a Trial Examiner of the National Labor Relations Board, we are posting this notice to inform our employees of the rights guaranteed them by the National Labor Relations Act: WE WILL NOT interrogate ' any of our employees concerning their union ac- tivities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with more stringent working conditions, loss of employment, and closing the plant if the Union becomes the collective- bargaining representative of our employees. WE WILL NOT instruct our employees to remove their names from the union's organizing committee. WE WILL NOT promulgate or maintain rules prohibiting our employees during nonworking time from soliciting union membership or prohibiting our employees from distributing handbills or other literature in behalf of any labor organiza- tion in nonworking areas of our property. WE WILL NOT threaten our white employees with replacement by Negroes, or with changed working conditions involving enforced association with Negroes if the Union becomes the collective-bargaiining representative of our employees. WE WILL NOT promise or grant wage increases , additional holidays, or gifts to our employees in order to discourage membership in or activities on behalf of United Steelworkers of America , AFL-CIO, or any other labor organization. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to join a union of your own choice or not to engage in any union activities. All our employees are free to become or remain members of United Steelworkers of America, AFL-CIO, or any other union and they are also free to refrain from joining any union. ATKINS SAW DIVISION, BORG-WARNER CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and it must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 746 Fed- eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161 , if they have any questions concerning this notice or compliance with its provisions. Schapiro & Whitehouse, Inc. and Warehouse, Retail and Mail Order Employees, Local Union No. 590, International Brother- hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. Case No. 5-CA-2753. September 11, 1964 DECISION AND ORDER On June 3, 1964, Trial Examiner Joseph I. Nachman issued his De- cision 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 attached Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 148 NLRB No. 102. . . r ,. SCHAPIRO & WHITEHOUSE, INC. 959 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 Fanning and Jenkins]. 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 Decision, and the exceptions and brief, and the- entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, its offi- cers, agents,. successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 The Respondent 's request for oral argument is hereby denied , as, in our opinion, the record , including the exceptions and brief, adequately presents the issues and positions of the parties TRAIL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding heard by Trial Examiner Joseph I. Nachman at Baltimore, Mary- land, on .May 7,1 involves a complaint under Section 10(b) of the National Labor Relations Act, as amended 2 (herein called the Act ), alleging that Schapiro & White- house, Inc. (herein called Respondent ), refused to bargain with Warehouse , Retail and Mail Order Employees, Local Union No. 590 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (herein called the Union), as the certified collective-bargaining representative of Respondent's em- ployees. Respondent's defense to the allegations of the complaint is that the certifi- cation issued by the Board is invalid for reasons hereafter more fully set forth. At the hearing before me the respective parties appeared by counsel , were afforded full opportunity to introduce competent and relevant evidence , to examine and cross- examine witnesses, and to argue orally on the record . Oral argument was waived. A brief on behalf of Respondent has been received and considered . A motion to dismiss the complaint herein was filed along with the brief and is disposed of by the findings and conclusions hereafter set forth. Upon the entire record in the case, I make the following: FINDINGS OF FACT 3 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts On March 6 the Board, after adjudicating certain issues presented to it in the representation case, certified the Union as the collective-bargaining representative of 1 All dates mentioned herein are 1964 unless otherwise stated. 2 Issued April 3, based on a charge filed March 23. 3 No issue of commerce or labor , organization is involved. The complaint alleges and the answer admits facts which establish that Respondent is engaged in commerc' within the meaning of the Act I find 'the facts as pleaded Although Respondent ti answer stated that It had no information as to whether the Union is a labor organizatir•i within the meaning of the Act , it stipulated at the hearing that such was a fact . I so find. The complaint alleges, the answer admits and I find , that Respondent's production and mainte- nance employees , including truckdrivers, employed at its Baltimore , Maryland , plant, ex- cluding office clerical employees, watchmen, guards , and supervisors as defined In the Act, constitute a unit appropriate for collective bargaining , within the meaning of Section 9(b) of the Act. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the aforementioned unit .4 On March 9, and on March 13,' the Union requested that Respondent bargain with it as such collective-bargaining rep- resentative. By letter dated March 18, Respondent's counsel declined to meet and bargain with the Union as requested, assigning as the reason therefor'that the Board's. certification "is not supported by the facts and is erroneous and unwarranted, as a matter of law." Respondent's complaint against the Board's certification is predicated on three'con- tentions.. These are ,(1) the Board improperly found a particular ballot to be,void, rather than a valid ballot cast against the Union, as Respondent contends; 5 (2) the Board improperly sustained the challenge to the ballot of Ira Finkelstein, finding that he did not have sufficient community of interest with the other employees to warrant his inclusion in the unit; and (3) the Board improperly adopted the Regional Direc- tor's recommendation that two leaflets distributed by the Union. shortly before the election, did not constitute an intemperate or inflammatory appeal to racial prejudice. Respondent sought to introduce evidence-relating to each of the grounds upon which it attacks the Board's Decision in the representation case, and the certification issued pursuant thereto. Respondent conceded that the evidence it so sought: to introduce was not only known to it when it filed its objections and exceptions to the Regional Director's report, but that in said objections and exceptions, and in its brief in sup- port thereof, the basic facts which Respondent sought to adduce at the hearing in the instant case, were presented to, the Board., Objections by the General Counsel to all such testimony *ere sustained, and Respondent's offers of proof inthat con- nection were rejected. B. Analysis and concluding findings The General Counsel's objections to the testimony offered by Respondent, and' the rejection of its offers of proof, were predicated on the Board's consistent rule that in the interest of finality of adjudication, it will not consider in a subsequent un- fair labor proceeding alleging a refusal to bargain, where the Union's majority status is based on a certification, matters which it disposed of in the prior related representa- tion proceeding, absent newly discovered evidence. Myca Products Division of the Kane Company, 145 'NLRB 1068; Dewey Portland Cement Company, 142 NLRB 951; Ideal Laundry and Dry Cleaning Co., 140 NLRB 1412; The Mountain Staten Telephone and Telegraph Company, 136 NLRB 1612. As I have heretofore stated, Respondent conceded that the facts it sought to adduce do not.fall within the-rule of "newly discovered" evidence. Respondent contends, however, that.as no hearing was,held.on its objections and exceptions to the Regional Director's report, it is only attempting to litigate;( and' to "relitigate" those issues. - An examination of the aforesaid objections and excep- tions, and of the brief submitted in support thereof, discloses that the factual recita- tion therein does not differ' in any significant respect -from its offer of proof in the instant proceeding.- I must assume, as Mountain States, supra, indicates-(136 NLRB at 1615), that when the Board considered-Respondent's objections and exceptions, it (1) assumed the truth of Respondent's-factual recitals;, (2) that 'such facts, did not constitute a sufficient basis for sustaining the contentions which, are now ad- vanced; and (3) that a hearing to permit Respondent to develop facts which the Board assumed to be true, was wholly unnecessary and would serve no useful purpose.,,, If, as Respondent contends, these findings of the Board are in error, then only the Board, or some court of competent jurisdiction, can correct such error. Certainly, I, as Trial Examiner, do not have the authority to reverse the Board. 4 Case No 5-RC-4278. The chronology of events in that case are as follows • July 18, 1963: Stipulation for certification upon consent election executed and' approved • August 30, 1963; Election, held in which 183 ballots, were( cast,. 89 for the Union, 85 against, 2 void, and 7 challenged ballots September 6, 1963: Respondent's objections to conduct affecting results of election. September 9, 1963 , Union's objections to conduct affecting results of election. November 7, 19G3• Regional Director's report on challenges and objections November 22, 1963- Respondent's exceptions to Regional Director's report on chal- lenges and objections - March 6, 1964 Board's.Declsion and Certification of Representation. 5 This ballot bore. a"mark in -the I "yes" box- which was partially but not completely erased, and another mark in the "no" box. The Board, sustaining the Regional Director, held that the intent of the voter casting that ballot was not clear, and was, therefore, a. void ballot. • SCHAPIRO &WHITEHOUSE, INC. 961 Upon consideration 'of' all the foregoing; I find a`nd conclude that the Union 'was,, on March 6, validly certified by the Board as the collective-bargaining representative of Respondent's employees in the aforesaid unit,- and that in view of Respondent's admitted refusal to meet and bargain with the Union since March 18, Respondent thereby violated, and continues to violate, Section 8(a)(5) and (1) of the Act. II. THE REMEDY. Having found that Respondent has engaged-in and is engaging in unfair-labor prac- tices, it will be required to cease and desist'therefrom, and to take certain affirmative action found necessary to effectuate the'policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union was on, March 6, 1964, and at all times thereafter has been, the duly certified collective-bargaining' representative of Respondent's employees in the unit heretofore referred to, within the meaning of Section 9(a) of the Act. 4. By refusing since March 18, 1964, to meet and to bargain collectively with the Union as the certified bargaining representative of its aforesaid employees, Re- spondent has engaged in and is engaging in unfair labor practices proscribed by Sec- tion 8 (a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. - RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Schapiro & Whitehouse, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Warehouse, Retail and Mail Order Em- ployees, Local Union No. 590, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all em- ployees in a unit-consisting of all production and maintenance employees, including truckdrivers, employed at its Baltimore, Maryland, plant, excluding office clerical employees, watchmen, guards, and 'supervisors as defined in said Act, with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. - (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise-of the right to self-organization, to form labor-organiza- tions, to join or aisist the above named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. 2. Take the following affirmative action which, it is found, will effectuate the policies,of the Act:' (a) Upon request bargain collectively with Warehouse, Retail and Mail Order Employees, Local Union No. 590, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the duly certified collective-bargain- ing representative of the employees in the appropriate unit consisting of all produc- tion and maintenance employees, including truckdrivers, employed at its Baltimore, Maryland, plant, excluding office clerical employees, watchmen, guards, and super- visors as defined in the aforesaid Act, with-respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody any understanding reached into a signed agreement. 760-577-65-vol. 148-62 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Baltimore, Maryland, plant, copies of the attached notice marked "Appendix." 6 Copies of said notice to be furnished by the Regional Director for Region 5 of the Board (Baltimore, Maryland), shall after being duly signed by its authorized representative, be posted by it immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.? 6 In the event that this Recommended Order is 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. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 'In the event this Recommended Order is 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 it 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 National Labor Rela- tions Act, we hereby notify our employees that: WE WILL, upon request, bargain collectively with Warehouse, Retail and Mail Order Employees, Local Union No. 590, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the duly certified collective-bargaining representative of our employees in the unit con- sisting of all production and maintenance employees, including truckdrivers, employed at our Baltimore, Maryland, plant, excluding office clerical employees, watchmen, guards, and supervisors, with respect to rates of pay wages, hours of employment, or other conditions of employment, and if an understanding is reached embody it in a signed agreement. WE WILL NOT, by refusing to bargain with the collective-bargaining represent- ative of our employees in the aforesaid unit, or in any like or related manner, restrain or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Warehouse, Retail and Mail Order Employees, Local Union No. 590, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended. All our employees are free to become, remain or to refrain from becoming or re- maining, members of the above-named labor organization. SCHAPIRO & WHITEHOUSE, 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 with the Board's Regional Office, Sixth Floor 707, North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions.