Wallace Co., Inc.

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wallace Company, Inc. and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local ,Union 111. Case 23-CA-3058 February 12, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 29, 1968, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made 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 recommendations2 of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'While Trial Examiner's findings with respect to the poll of employees do not so state, we note that the record establishes that the poll substantially satisfied all of the preconditions to lawful polling laid down in Strucksnes Construction Co, Inc., 165 NLRB No. 102, including the giving of assurances to employees that their indication of preference would not prevoke any reprisals. 'In the absence of exceptions, the Board adopts pro forma the Trial Examiner's recommendation that that portion of the complaint relating to a wage increase extended to Marvin Dureseau be dismissed TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HORACE A. RUCKEL,' Trial Examiner : This case comes before me upon a complaint of unfair labor practices issued August 9, 1968, by the General Counsel of the National Labor Relations Board, through the Board's Regional Director for Region 23 (Houston, Texas), against Wallace Company, Inc , herein called the Respondent, based upon a charge filed on June 21, 1968, by International Union of Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local Union 111, herein called the Union. Pursuant to notice, I conducted a hearing on September 12, 1968, at Houston, Texas, at which the parties were represented by counsel. At the conclusion of the hearing the parties waived oral argument. Subsequently they filed timely briefs. The complaint alleges that Respondent failed to bargain in good faith with the Union as the representative of its employees in an appropriate unit in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, herein called the Act, by (1) conducting a poll of the employees in the unit on about May 7, 1968, and (2) by granting a wage increase to an employee without consultation with the Union. This is the sole issue in the case. Upon the entire record in the case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Wallace Company, Inc., is a Texas corporation having its principal office and place of business in Houston, Texas, where it is engaged in the business of wholesale distribution of refinery, industrial and pipeline supplies. During the 12 months prior to the issuance of the complaint the Respondent purchased goods valued in excess of $50,000 from points outside the State of Texas. During the same period Respondent made sales in excess of $50,000 to customers who in turn sold and shipped goods valued in excess of $50,000 to points outside Texas. The complaint alleges, and the Respondent's answer admits, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting employees of the Respondent to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Refusal to Bargain 1. The appropriate unit and the Union's certification as bargaining agent The Regional Director for Region 23, pursuant to an election conducted on October 6, 1966, on October 14 certified the Union as the collective-bargaining agent of its approximately 32 employees in the following described unit: All employees of Respondent at its Houston, Texas, plant including warehouse employees, dispatchers, order fillers, laborers, truck drivers, shipping clerks, receiving clerks, warehouse clerks, valve repairmen, pipe cutters, janitors, maintenance men, and yard leadmen, but excluding office employees, office clerical employees, guards, watchmen and supervisors as defined in the Act. 'The transcript of testimony records this erroneously as Horace S Ruckel It is corrected as indicated 174 NLRB No. 73 WALLACE CO. 2. The contract negotiations In about January 1967, some 3 months after its certification, the Union for the first time sought a meeting with Respondent for the purpose of negotiating a contract, and thereafter several bargaining meetings were held. Respondent was represented by R E. Eiser, warehouse manager, and Thomas W Moore, Jr., its attorney, and the Union by Ralph Waymire, business agent. The negotiations seem to have been somewhat desultory, and it was not until a year later, in January 1968, that a complete agreement was arrived at by the representatives of the parties. It was submitted for ratification to the members of the Union at a meeting on or about March 29. There was some dissatisfaction expressed with a proposed additional wage increase of 3 cents an hour, and Waymire suggested that he seek another meeting with Respondent on this point, leaving the matter of acceptance of the contract in abeyance= Waymire admitted while testifying that the Union, in spite of Waymire's own suggestion that he do so, never thereafter requested a meeting with the Respondent on the wage increase, or on any other provision of the proposed contract. 3. The specific allegations of failure to bargain (a) The election conducted by the Respondent In the state of affairs described above, and in light of the failure of the Union's representative to report back to the Respondent the result of the union meeting on March 29 concerning the acceptance by the Union of the contract, and reports from two or more employees to Eiser that in their opinion the Union no longer represented a majority of the employees in the unit, the Respondent hired Gordon Lowther, a certified public accountant, to conduct an election among the employees in the unit. The election took place in the plant on May 7. Each employee in the unit was handed a ballot in the following form SECRET BALLOT FOR CERTAIN EMPLOYEES WALLACE CO., INC. Houston, Texas Do you wish to be represented for purposes of collective bargaining by - INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS, AFL-CIO 'Actually, though not entirely satisfied with the suggested wage raise, those present, according to Waymire , did favor ratifying the contract Q. And what was the response of the employees? A Well, it [sic] was no secret vote taken of it, but the employees indicated to me - that they more or less favored the contract - TRIAL EXAMINER They favored the acceptance of the three cents an hour THE wITNESS . Right. But I told them to think it over - that I would go back to the Company and try to get a little more money out of them MARK AN "X" IN THE SQUARE OF YOUR CHOICE Yes No 417 When the employee finished marking his ballot he folded it and deposited it in a ballot box on a table, on one side of which the voter sat and on the other side, Lowther. While the conditions for privacy were not as antisceptic as those provided in a Board conducted election, they were not too crude an approximation. Lowther testified credibly that he did not see how any employee marked his ballot, and certainly the result of the vote argues against any intimidation. For when the ballots were counted in the presence of Eiser and Moore, and two representatives of the employees, it was found that the vote was' 17 "Yes" and 15 "No." Lowther certified the result of the voting to Respondent, as the result of which Attorney Moore, on the instructions of Respondent, on May 20 forwarded the complete contract, consisting of 24 pages, to the Union with a covering letter stating that it had been agreed to by Respondent's officials and suggesting that the Union sign it, since it was "in culmination of the collective bargaining." The Union has not done so, and has not to the date of the hearing replied to Respondent's letter, or in any other manner got in touch with Respondent.3 According to Eiser's uncontradicted, credited, testimony, the terms of the proposed contract have not been effectuated in any way. (b) The wage raise given Marvin Dureseau In December 1966, or January , 1967, about the time that Respondent and the Union began contract negotiations , employee Dureseau, who had been working in the pipe yard as a laborer at an hourly rate of $1.70, was promoted to the position of pipe yard leadman. Thereafter, and until the present time, he has performed the duties pertaining to this job. At one of the early negotiating meetings , in about January, 1967, Eiser informed Waymire that Dureseau was performing the work of leadman and asked the Union ' s permission to increase his wage rate from $1.70 to $2 an hour, which, it is not disputed, is the minimum rate paid Respondent's leadmen.° Waymire replied that he did not think the raise should be given while the parties were engaged in negotiations, and Eiser acquiesced . At a later time, Eiser repeated his request, with the same result . Accordingly, Dureseau's wages were not raised for about a year and a half, although he continued to perform the work of a leadman during this time. On May 29, 1968, after the Union had failed to respond to the Respondent's letter of 'Waymire did state that about May 5 or 6 when he heard that the election conducted by Respondent was to be held , he called Attorney Moore and protested it. He testified as follows TRIAL EXAMINER . And following [the meeting ] you went back to the Company to see about getting a better offer . . 9 THE WITNESS No - after that was when I had one of the employees - tell me they were going to have an election. The inference Waymire seeks to convey is pure rationalization By his own admission, it was not until 5 weeks after the meeting that he heard about the election Nor does it explain why he did not get in touch with the Company after the election when the result favorable to the Union, was known, or when he received Respondent 's letter of May 20 enclosing the agreed upon contract for signature 'Three other leadmen are employed in the warehouse and yard at wages of $2 22, $2.30, and $2.60, respectively 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 20 urging it to sign the complete, proposed contract agreed upon long since between the parties, Respondent finally effected the raise. Conclusions Under the above-described circumstances I find no grounds for a finding that Respondent failed to bargain collectively with the Union "without consultation with the Union," as the complaint alleges. Respondent did in fact consult with the Union on two occasions, and put the raise in effect only after an impasse had been reached. I shall recommend that the complaint be dismissed as to this allegation. Similarly with respect to the other specific allegation of a failure to bargain: the election conducted on May 7, 1968. In my opinion the Respondent under the circumstances, as to which there is no dispute, had a good-faith doubt as to the majority status of the Union. This proved to be erroneous. But when the ballots were counted and it appeared that the Union was still favored by a majority of the unit employees, though by a narrow margin, the Respondent, in an attempt to resolve a situation which through no fault of its own had dragged out for a year and a half since the Union's certification, and for 4 months after the terms of a contract had been agreed upon, attempted to cut the Gordian knot by seeking the Union's signature to the agreement. But without success. I think there is no question as to the good faith of Respondent's bargaining either in-general or in the two specific instances charged in the complaint, and I so find. It follows that the complaint should be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of the Respondent, Wallace Company, Inc., occur in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local 111, is a labor organization within the meaning of the Act. 3. Respondent has not committed any unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety.