J. Brenner & Sons, Inc.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosmg, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain from any and all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining members of Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. DUBIN-HASKELL LINING CORP., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify Fred A. Cox if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by an other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 524-3161. J. Brenner & Sons, Inc. and International Union of District 50, United Mine Workers of America. Case No. 5-CA-3078. Au- gust 20,1965 DECISION AND ORDER Upon a charge filed on March 11, 1965, by International Union of District 50, United Mine Workers of America (herein called the Union), against Respondent J. Brenner & Sons, Inc., and duly served on Respondent on or about March 11, 1965, the General Counsel for the National Labor Relations Board by the Regional Director for Region 5, on April 13, 1965, issued and served upon the parties herein a complaint and notice of hearing. The complaint alleges that Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. With respect to the unfair labor practices, the complaint alleges that on or about February 12, 1965, the Union was duly certified by the Board i as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate by the Board and that, since on or about March 5, 1965, Respondent has refused to recognize or bargain with the Union as such exclusive bargaining representative, although it has been requested to do so. 'Case No. 5-RC-4917. On February 17, 1965, the Board entered an Order correcting the title of its Decision of February 12, 1965. 154 NLRB No. 49. J. BRENNER & SONS, INC. 657 On or about May 25, 1965, all parties to this proceeding entered into a stipulation wherein they agreed as to the contents of the record in this case 2 and to the submission of this case to the Board for findings of fact, conclusions of law, and a Decision and Order. The parties waived hearing before a Trial Examiner and the issu- ance of a Trial Examiner's Decision. The Respondent reserved the right to file a brief and made an offer of proof. On June 3, 1965, the Board issued an Order approving stipulation and transferring case to the Board and for submission of briefs? 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 [Members Fanning, Brown, and Jenkins]. Upon the basis of the aforementioned stipulation and the entire record in this case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges, the parties have stipulated, and we find, Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We find Respondent, a Delaware corpora- tion, has its principal place of business in Washington, District of Columbia, where it is engaged in the purchase and sale of scrap iron. In the course and conduct of its business operations during the 12- month period prior to the issuance of the complaint herein, Respond- ent shipped goods and materials valued in excess of $50,000 from its place of business in Washington, District of Columbia, directly to points outside said District of Columbia to States of the United States. We, therefore, find that it will effectuate the policies of the Act to assert jurisdiction herein. 2 The record as stipulated to by the parties consists of the stipulation and the follow- ing: The charge, complaint, and notice of hearing herein and Respondent's answer and the documents in Case No 5-RC-4917 ; Including the petition for certification filed Octo- ber 30, 1964 ; stipulation for certification upon consent election ; notice of election ; tally of ballots issued November 12, 1964 ; certification on conduct of election on November 12, 1964 , corrected tally of ballots, issued November 12, 1964 ; letter dated November 12, 1964, from the Board field examiner to the attorney for Respondent in explanation of the corrected tally of ballots ; official secret ballot of employee, Will Watson, showing signa- ture of "Will Watson" In the top margin and the word "On" written adjacent to the word "No" appearing above the square in the "No" box ; report on challenges issued by the Regional Director, Region 5, December 10, 1964; exceptions to the Regional Direc- tor's report filed by Respondent December 18, 1964 ; Decision and Certification Issued by Board, February 12, 1965 ; Order Correcting Decision dated February 17, 1965. A brief has been received from Respondent. 206-446-66-vol. 151-43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On or about October 30, 1964, the Union filed a petition in Case No. 5-RC-4917 seeking certification as exclusive bargaining repre- sentative of certain employees of Respondent at its Washington, District of Columbia, plant. Thereafter, the parties entered into a stipulation for certification upon consent election, pursuant to which an election by secret ballot was held on November 12, 1964, under the direction and supervision of the Regional Director for Region 5, among the employees in the unit described below. The tally of ballots showed that seven ballots were cast for and six against the Union, and that one ballot, that of employee Will Watson, was chal- lenged by the Board agent which challenge was sufficient to affect the results of the election. The Regional Director, acting pursuant to the Board's Rules and Regulations, Series 8, as amended, investigated the challenge and, on December 10, 1964, issued his report thereon in which he recom- mended that the challenge to the ballot of Watson be sustained, and that the petitioning Union be certified as the representative of the employees in the unit. The Respondent filed timely exceptions to the report. Thereafter, the Board, after due consideration of the entire record in Case No. 5-RC-4917, including the Regional Director's report and the exceptions thereto, issued its Decision on February 12, 1965, as amended February 17, 1965, in which it adopted the recommenda- tion of the Regional Director with respect to the ballot of Watson. Accordingly, as the Union had received a majority of the ballots cast by eligible employees, the Board certified the Union as the exclusive collective-bargaining representative of Respondent's employees in the unit set forth below. On or about February 24, 1965, the Union requested that Respond- ent bargain with it as the exclusive bargaining representative of the employees in the certified unit. On or about March 5, 1965, and until the present time, Respondent refused to bargain with the Union, contending, as set forth in a letter of that date, that the cer- tification was invalid in that the Board was in error in sustaining the challenge to the ballot of Watson. J. BRENNER & SONS, INC. 659 A. The appropriate unit The parties stipulated, and the Board found, in Case No. 5-RC- 4917, which finding we adopt herein, that the following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees employed by Respondent, excluding all office clerical employees, guards, and supervisors as defined in the Act. B. Conclusion We find that the Respondent, in violation of Section 8(a) (5) and (1) of the Act, has refused to bargain, upon request, with the Union which has been duly certified as the bargaining representative of its employees in an appropriate Unit .4 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of Respondent described in section III, above, occurring in connection with its operations, have a close, intimate, and sub- stantial relation to trade, traffic, and commence among the several States, and within the District of Columbia, tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof, and thus constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a) (5) and (1) of the Act, we * Respondent , in defending its refusal to bargain , attacks the validity of the certifica- tion on grounds that the Regional Director improperly excluded a ballot which would have affected the results of the election . In this connection, the record shows that em- ployee Watson, in attempting to register a "no" vote, affixed his signature to the ballot. Such being the case, the Regional Director , in refusing to count this vote , acted pursuant to the Board's longstanding policy of invalidating ballots which reveal the identity of the voter George K. Garrett Company, Inc., 120 NLRB 484, 485-486, Ebco Manufac- turing Company, 88 NLRB 983, 984; N.L.R B. v. National Truck Rental Co., 239 F. 2d 422, 426 (CA. 2). Nevertheless, Respondent argues that the Board's established policy should not be applied to the instant case , for, as set forth in its otter of proof, Watson, if permitted to testify, would state that he deliberately signed his ballot with the intention of waiving its secrecy . Contrary to the Respondent, we are of the opinion that to rec- ognize a distinction in the announced rule, where a voter has waived the secrecy of his ballot, would defeat the principles of a secret election . The secret ballot is expressly required by the Act. The Board is under a duty to preserve it and it is a matter of public concern , rather than a personal privilege subject to waiver by the individual voter Moreover, to give effect to such a waiver would remove any protection of employees from pressures, originating with either employers or unions , to prove the way in which their ballots had been cast , and thereby detract from the laboratory conditions which the Board strives to maintain in representation elections Accordingly, we find that Re- spondent's offer of proof raises no substantial issue affecting the validity of the certification. 660 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD shall order that the Respondent cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, we make the following : CONCLUSIONS of LAW 1. J. Brenner & Sons, Inc., is an Employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees employed by Re- spondent, excluding all office clerical employees, guards, and super- visors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 2(5) of the Act. 4. The Union is, and at all times since February 12, 1965, has been, the exclusive, certified representative of all employees in the aforesaid unit, for purposes of collective bargaining with respect to wages and other terms and conditions of employment, within the meaning of Section 9 (b) of the Act. 5. 'Commencing on February 24, 1965, and continuing to date, the Union has requested and is requesting that Respondent bargain col- lectively with it with respect to wages and other terms and condi- tions of employment of all of the employees of Respondent in the appropriate unit. 6. By refusing on or about March 5, 1965, and at all times there- after, to bargain collectively with the Union as the exclusive collec- tive-bargaining representative of all employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 7. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby did engage in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. J. BRENNER & SONS, INC. 661 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, J. Brenner & Sons, Inc ., Washington , District of Columbia, its officers, agents , successors, and assigns , shall: 1. Cease and desist from : (a) Refusing to bargain collectively in good faith with Inter- national Union of District 50, United Mine Workers of America, as the exclusive and duly certified representative of all employees in the following appropriate unit : All production and maintenance em- ployees employed by Respondent, excluding all office clerical em- ployees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with , restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act : (a) Upon request, bargain collectively with the above -named Union as the exclusive representative of all employees in the aforesaid appro- priate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Washington , D.C., plant, copies of the attached notice marked "Appendix ." 5 Copies of said notice , to be furnished by the Regional Director for Region 5, shall, after being duly signed by the Company's representative, be posted by the Company immedi- ately upon receipt thereof, and be maintained 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 the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 5, in writing , within 10 days from the date of this Decision and Order , what steps have been taken to comply herewith. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decision of the United States Court of Appeals, Enforcing an Order". APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Union of District 50, United Mine Workers of America, as the 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representative of all employees in the bargain- ing 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 under- standing in a signed agreement. The bargaining unit is: All our production and maintenance employees, excluding all office clerical employees, guards, and supervisors as defined in the Act. J. BRENNER & SONS, 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-2159, if they have any questions concerning this notice or compliance with its provisions. Rivers Mfg. Corp. and International Union of Mine, Mill and Smelter Workers. Cases Nos. 26-CA-1991 and 26-CA-2022. August 23,1965 DECISION AND ORDER On May 17, 1965, Trial Examiner W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent and General Counsel filed exceptions to the Trial Examiner's Decision with supporting briefs. 154 NLRB No. 51.