Bufkor-Pelzner Division, Inc.

National Labor Relations Board - Board DecisionsFeb 20, 1968

169 N.L.R.B. 998 (N.L.R.B. 1968)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bufkor-Pelzner Division , Inc. and Industrial Car- penter 's Union, Local 2565, AFL-CIO, affiliated with United Brotherhood of Carpenters and Joiners of America . Case 20-CA-4602 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following: February 20,1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a charge filed by Industrial Carpenter's Union, Local 2565, AFL-CIO, affiliated with Upited Brotherhood of Carpenters and Joiners of America, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for Region 20, issued a com- plaint, dated September 8, 1967,1 against Bufkor- Pelzner Division, Inc., herein called Respondent or the Employer, alleging that Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before a Trial Ex- aminer were duly served upon the Respondent and the Union. The complaint alleges that on July 3 the Union was duly certified as the exclusive bargaining representative in an appropriate unit, and that, since on or about July 6, Respondent has refused and is refusing to recognize and bargain with the Union, although the Union has requested it to do so. On September 19, Respondent filed its answer to the complaint, in which it admitted in part and denied in part the allegations contained therein, and requested that the complaint be dismissed., On October 23, the General Counsel filed with the Board a Motion for Summary Judgment, and a supporting memorandum, on the ground that no issue of fact or law was in dispute since all matters raised had been determined by the Board in the representation proceeding, and requesting, in view of Respondent's answer, that the Board enter judgment against Respondent on the pleadings. On October 27, the Board, having duly considered the matter, ordered that the proceeding be transferred and continued before it, and that cause be shown why General Counsel's Motion for Summary Judgment should not be granted. On November 21, Respondent filed its Answer to the Notice to Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its ' All dates refer to 1967. 2 The Respondent, on May 5, forwarded to the Regional Office, the names, addresses, and telephone- numbers of two of its employees who RULING ON THE MOTION FOR SUMMARY JUDGMENT In its Answer to the complaint, and Answer to Notice to Show Cause, Respondent contends, inter alia, that it is entitled to a hearing to insure full litigation of the facts. For the reasons stated below, this contention is without merit. The record establishes that, on April 14, the Re- gional Director approved a Stipulation for Certifi- cation Upon Consent Election executed by the parties, and pursuant thereto, on April 24, an elec- tion was conducted among the employees in the fol- lowing stipulated unit: All regular full-time and regular part-time production and maintenance employees of the Employer at its factory, at 2445 Taraval Street, San Francisco, California, excluding office clerical employees, guards, and supervisors as defined in the Act. Upon conclusion of the balloting, the parties were furnished a tally of ballots which showed that of ap- proximately 11 eligible voters, 11 cast ballots, of which 7 were for, and 4 were against, the Union. Thereafter, on April 27, the Employer timely filed objections to conduct affecting the results of the election, alleging, inter alia, in Objection 2, that prior to the election "the union, through its representatives and agents, threatened certain of the employer's employees in that if they did not vote for the Union, they would not be able to work for the employer in the future."2 After an adminis- trative investigation, the Regional Director issued a Report on Objections, in which he found that one employee, a union adherent who solicited em- ployees to sign union cards, told others that if the Union got in: ". . . if employees did not join the Union they could not work there." The Regional Director further reported that his investigation dis- closed no evidence that the union adherent held any union office or that the Union authorized or ratified her conduct. He therefore concluded that Respond- ent's objection 2 raised no substantial or material issues with respect to the election.3 In its exceptions to the Regional Director's Re- port on Objections, the Respondent alleged in material part that the Regional Director failed to conduct a proper investigation in that he had failed to interview all employees whose names had been given to him, and asked, as an alternative to the Board directing a new election, that a hearing be were allegedly threatened. 3 The Regional Director further recommended that Respondent's other objections be overruled, and that the Union be certified. 169 NLRB No. 139 BUFKOR-PELZNER held to enable such employees to testify to the al- leged threats made to them. The Board, on July 3, issued its decision adopting the Regional Director 's findings and recommenda- tions, and certifying the Union as the exclusive representative of all the- employees in the ap- propriate unit.4 In the instant proceeding , the Respondent, in defense of its refusal to bargain, reiterated its con- tention that had the Regional Director conducted a full investigation and interrogated all employees whose names were furnished to the Regional Director, it would have been established that prior to the election the Union through its agents had threatened employees with reprisals if they did not vote for the Union. It did not document its excep- tions with any stated offer of proof or inform the Board even in general terms of the substance of the evidence allegedly available to it which had not been sought out by the Regional Director. Respond- ent, however, stated that it had such proof and of- fered to submit the affidavits of two employees, Valentina Sinkevitch and Helen Huey,5 in support of its position that union agents had threatened these employees and thereby interfered with the election. Pursuant to special leave granted by the Board, the Respondent thereafter filed the affidavits in question with the Board. Both of the named affiants allege in so many words that a fellow employee, Mary Faenzi, who represented herself to be an agent of the Union,6 threatened them with loss of employment if they did not vote for the Union. It is well established that a party seeking to have the Board overrule a Regional Director's findings and recommendations with respect to objections to an election must supply specific evidence which prima facie would warrant setting the election aside before the Board will direct a hearing7 or require the Regional Director further to pursue his investigati- on.' Respondent now seeks to establish union responsibility for the statements of Faenzi by al- legations that a fellow employee, who only sought to obtain signed authorization cards, said she was an agent of the Union. This allegation standing alone is clearly insufficient to establish such agency relationship.9 Therefore, inasmuch as the Board has previously rejected Respondent's contentions as lacking in merit, and as Respondent has not offered any further evidence which could require modifica- tion of our earlier decision, it is clear that, in the cir- cumstances of this case, an evidentiary hearing now 4 Case 20-RC-7469, not published in NLRB volumes. 5 Respondent requests that the Board receive testimony of employee Helen Huey , although it concedes that she was interviewed during the Re- gional Director 's investigation , regarding threats made to her by union representatives 6 It is now evident that employee Sinkevitch had no more evidence to offer on the alleged role played by Faenzi than did employee Huey whom the Regional Director did interview . In view of the Regional Director's finding on the evidence gathered by him that the employee who allegedly DIVISION, INC. 999 is not warranted. As all material issues have been previously decided by the Board, and as all allega- tions of the complaint are admitted by Respond- ent's Answer to the Complaint, or stand admitted by the failure of Respondent to controvert the aver- ments of the General Counsel's motion, there are no matters requiring a hearing before a Trial Ex- aminer. Accordingly, the General Counsel's Mo- tion for Summary Judgment is granted. On the basis 9f the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a California corporation, engaged in the manufacture of jewelry cases at San Fran- cisco, California. In the course of its business, Respondent annually sells and ships goods valued in excess of $50,000 directly to points outside the State of California. Respondent admits, and we find, that it is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Industrial Carpenter 's Union , Local 2565, AFL-CIO, affiliated with United Brotherhood of Carpenters and Joiners of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees at the Respondent's factory at 2445 Taraval Street, San Francisco, California, constitute a unit appropriate for collec- tive bargaining within the meaning of the Act: All regular full-time and regular part-time produc- tion and maintenance employees; excluding office clerical employees, guards, and supervisors as defined in the Act. 2. The certification On April 24, 1967, a majority of the employees of Respondent in said unit , in a secret election con- represented herself as an agent of the Union was not in ffact such agent, we find no merit in Respondent's contention that it was prejudiced by the Re- gional Director 's failure to interview Sinkevitch ' Orleans Manufacturing Company, 120 NLRB 630, 631, Mattison Machine Works, 120 NLRB 58, 60. 8 Avon Products, Inc, 116 NLRB 1729, 1730; Pacific Maritime As- sociation and Its Member Companies, 112 NLRB 1280, 1282. s Schauffler v. Highway Truck Drivers & Helpers, 230 F 2d 7, 10 (C A. 3) 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ducted under the supervision of the Regional Director for Region 20, designated the Union as their representative for the purpose of collective bargaining with Respondent , and on July 3, the Board certified the Union as the collective-bargain- ing representative of the employees in said unit and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal Commencing on or about July 6, and continuing to date, the Union has requested, and is requesting, the Respondent to bargain collectively with it with respect to wages, hours, and working conditions of the employees in the appropriate unit . The Respond- ent admittedly declined , and has continued to decline , through its president and agent , Morton D. Pelzner, to bargain with the Union as exclusive col- lective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of the Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since July 3, 1967, has been and is now the exclu- sive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since July 6, 1967, refused to bargain collec- tively with the Union as the exclusive bargaining representative of its employees in the appropriate unit, and that, by such refusal, the Respondent has engaged in , and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with its opera- tions as described in section 1, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bar- gain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Bufkor-Pelzner Division, Inc., is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Industrial Carpenter's Union, Local 2565, AFL-CIO, affiliated with United Brotherhood of Carpenters and Joiners of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time production and maintenance employees of the Em- ployer at its factory at 2445 Taraval Street, San Francisco, California; excluding office clerical em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since July 3, 1967, the above-named labor or- ganization has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 6, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor pratices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Bufkor -Pelzner Division , Inc., San Francisco, California , its officers , agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of em- ployment , with Industrial Carpenter 's Union, Local 2565, AFL-CIO, affiliated with United Brother- hood of Carpenters and Joiners of America, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All regular full-time and regular part-time produc- tion and maintenance employees of the Employer at its factory at 2445 Taraval Street , San Francisco, California; excluding office clerical employees, guards, and supervisors as defined in the Act. BUFKOR-PELZNER DIVISION, INC. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization, as the exclusive representative of all employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its San Francisco, California, place of business, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms pro- vided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 10 In 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 Decree of the United States Court of Appeals En- forcing 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 policies of the National Labor Relations Act, as amended, we hereby notify you that: 1001 WE WILL NOT refuse to bargain collectively with Industrial Carpenter's Union, Local 2565, AFL-CIO, affiliated with United Brotherhood of Carpenters and Joiners of America, as the 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 em- ployees 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 wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All regular full-time and regular part- time production and maintenance em- ployees of the Employer at its factory at 2445 Taraval Street, San Francisco, California„ excluding office clerical em- ployees, guards, and supervisors as defined in the Act. Dated By BUFKOR-PELZNER DIVISION, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any 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, 13050 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 556-0335.