Cherrin Bros. Co.

National Labor Relations Board - Board Decisions

Jun 18, 1964

147 N.L.R.B. 527 (N.L.R.B. 1964)

CHERRIN BROS. CO., CHERRIN PRODUCTS CO . 527
Cherrin Bros . Co., Cherrin Products Co. and Office Employees'
International Union , Local 10, AFL-CIO. Case No. 7-CA-.4640.
June 18, 1964
DECISION AND ORDER
Upon charges duly filed by Office Employees' International Union,
Local 10, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, by the Acting Regional Director
for the Seventh Region, issued a complaint dated March 25, 1964,
against Cherrin Bros. Co., Cherrin Products Co., herein referred to
as Brothers and-Products, respectively, and as the Respondents col-
lectively, alleging that the Respondents had engaged in and were en-
gaging in unfair labor practices within the meaning -of Sections 8 (a)
(1)•and (5) and 2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charges, complaint, and notice of hearing
before a Trial Examiner were duly served upon the Respondents and
the Union.
- With respect to the unfair labor practices, the complaint alleges, in
substance, that the Union was and is the exclusive collective-
bargaining representative of certain employees of the Respondents-in
an appropriate unit, and that on or about March 10, 1964, and at all
times thereafter, Respondents unlawfully refused to bargain with the
Union. Respondents' answer, filed April 3, 1964, admits certain juris-
dictional and factual allegations of the complaint, but denies the com-
mission of any unfair labor practices.
On April 15, 1964, all parties to this proceeding entered into a stip-
ulation of facts, and a motion -to transfer this proceeding directly to
the Board for findings of fact, conclusions of law, and decision and
order. The motion stated that the parties waived their rights'to a
hearing before a Trial. Examiner, and to the issuance of a Trial Ex-
aminer's Decision, and all other proceedings before the Trial Examiner
or Board except as enumerated hereinabove. The motion also pro-
vided that the entire record should consist of the charges, complaint,
answer in Case No. 7-CA-4640, and the following documents in Case
No. 7-RC-5999: Board's Official Exhibit No. 1(a) -1(d) ; Decision
and Direction of Election dated November 21, 1963; Supplemental
Decision and Certification of Representative dated January 27, 1964;
Respondent's request for review and stay of certification, with proof
of service thereof, dated February 13, 1964; and March 4, 1964, tele-
type from the Board denying Respondent's request for, review and_
stay of certification.
On April 22, 1964, the Board granted the parties' motion to transfer
the case to the Board. Briefs were thereafter filed by the General.
Counsel and the Respondent.
147 NLRB No. 63.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Leedom, Fanning, and Brown].
Upon the basis of the parties' stipulation of facts, the briefs, and the
entire record in this case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
The Respondents are, and have been at all times material herein,
corporations duly organized under, and existing by virtue of, the laws
of the State of Michigan. They have maintained their only office
and place of business at 6340 Miller Road, Dearborn, Michigan. Re-
spondent Brothers is and has been engaged in the wholesale distribu-
tion of candy, tobacco, and related products. Respondent Products
is and has been engaged in the manufacture, sale, and distribution of
plastic bags, sheets, liners, and related products. Respondents admit
they are affiliated businesses conducted at the same premises with
common ownership, officers, directors, and management officials, and
said directors and management officials formulate and administer a
common labor policy affecting the employees of both. Accordingly,
we find that for all purposes relevant hereto they are a single inte-
grated business enterprise. It is stipulated that in the course and
conduct of their businesses during the fiscal year ending June 30,
1963, each of the Respondents sold and distributed goods and products
valued in excess of $100,000, of which goods and products valued in
excess of $50,000 were shipped by each Respondent from Dearborn,
Michigan, directly to points located outside the State of Michigan.
Respondents admit, and we find, that they are engaged in commerce
within the meaning of Section 2(6) and (1) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Office Employees' International Union, Local 10, AFL-CIO, is a
labor organization within the meaning of the Act.
III. THE APPROPRIATE UNIT
The complaint alleges, and the Respondents admit, that all office
clerical employees employed by Respondents in thier offices at 6340
Miller Road, Dearborn, Michigan, excluding professional employees,
.guards, and supervisors as defined in the Act and all other employees,
constitute a unit appropriate for collective bargaining within the
meaning of Section 9 (b) of the Act. We so find.
CHERRIN BROS. CO., CHERRIN PRODUCTS CO.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
529
On December 17,1963, pursuant to a Decision and Direction of Elec-
tion issued on November 21, 1963, in Case No. 7-RC-5999 by the Act-
ing Regional Director for the Seventh Region of the Board, ,an elec-
tion was held in the above-appropriate unit. Upon the conclusion of
the election, there was duly served on the parties, in accordance with
the Board's Rules and Regulations, a, tally of ballots showing that of
14 ballots cast, 7 were for and 6 were against the Union, and one was
challenged by the Petitioner on the ground that the voter, Marilyn
Cherrin, is the daughter of an owner of the Respondents. As this
challenged ballot was determinative of the results of the election, it
was received and segregated to maintain its secrecy. Thereafter, the
Union filed with the Acting Regional Director timely objections to con-
duct affecting the results of the election.' However, as the challenge
to the ballot of Marilyn Cherrin, was sustain'ed,2 and as the Union had
a majority of the valid ballots cast, the Acting Director did not set
aside the election and on January 27, 1964, certified the Union as the
representative of the employees in the unit found appropriate.
The Employers filed a timely request for review of the Acting Re-
gional Director's supplemental decision and sought a stay of the
certification, alleging that the record showed that the Acting Direc-
,tors' decision was clearly erroneous on substantial factual issues and
-constituted a blatant abuse of discretion which prejudicially affected
the rights of the Employers.3 The Board on March 4 ,1964, by tele-
gram, denied the Employers' request on the ground that it raised no
substantial issues warranting review.
By letters dated February 3 and 4, 1964, the Union requested the
Respondents to meet with it for the purpose of commencing collective-
bargaining negotiations. By letter dated March 10, 1964, Respond-
ents declined to meet with the Union, in order to test the validity of
I The Employers' conduct to which the Union objected involved certain statements and
a letter distributed on or about December 13, 1963, which, in its view, contained threats
to their employees' working conditions if the Union won the election. While other objec-
tions were not passed upon, the letter was found by the Acting Regional Director to con-
tain implied threats which furnished grounds for setting the election aside.
2 Based on his investigation , the Acting Regional Director found that Marilyn Cherrin's
father, Phillip Cherrin, a corporate secretary , owns 20 percent of the stock of both Cherrin
Bros. Co. and Cherrin Products Co., and that she is the niece of all other owners and
officers of Respondents . She resides at the home of her father and has been employed as
an order clerk since 1958 . He further found that, unlike the other office clerical em-
ployees , she is not required to punch a timeclock , is salaried , and is not subject to the
limitations of the Employers ' sick leave policy or to reprimand or penalty for tardiness.
In view of the foregoing, he concluded that, because of her familial relationship to manage-
ment, she receives special treatment and consequently enjoys a special status which allies
her interests with those of management and hence she should be excluded from the unit.
3 The request for review sought Board review of the Acting Director ' s finding, sum-
marized above in footnote 1, concerning the Respondents ' conduct, as well as of the ruling
on Marilyn Cherrin's eligibility.
756-236-65-voL 147-35
530 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
the Union's certification, contending that the disqualification of
Marilyn Cherrin's vote.was not pursuant to law or in accordance
with the facts in the case. It is thus apparent that the Respondents
now seek to relitigate their position on the challenged, ballot which
.was duly considered and rejected by the Board in the representation
proceeding. In the absence of newly discovered evidence, and none
is here alleged, the Board, in the interest of finality of adjudication,
has consistently refused to reconsider, in a subsequent unfair labor
practice proceeding alleging a refusal to bargain, matters which have
been disposed of in a prior related representation case.'
Accordingly, the Respondents having on March 10, 1964, declined
the Union's request to bargain in the certified unit, we find that on
that date and at all times thereafter the Respondents have refused
to bargain collectively with the Union as the exclusive representative
of their employees in an appropriate unit in violation of Section 8 (a)
(5) of the Act and have thereby interfered with, restrained, and
coerced their employees in the exercise of their rights guaranteed in
Section 7 of the Act in violation of Section 8 (a) (1) thereof.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON. COMMERCE
The - activities of the Respondents set forth -in section IV, above
occurring in connection with their operations as described in section I,
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 the free flow of commerce.
VI. THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act.
CONCLUSION OF LAW
1. Cherrin Bros. Co., Cherrin Products Co. constitute an employer
within the meaning of Section 2(2) of the Act and are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Office Employees' International Union, Local 10, AFL-CIO, is
a labor organization as defined in Section 2(5) of the Act.
3. All office clerical employees employed by Respondents in their
offices at 6340 Miller Road, Dearborn, Michigan, excluding. profes-
sional employees, guards, and supervisors, as defined in the Act and
all other employees, constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act.
4 The Mountain States . Telephone and Telegraph Company, 136 NLRB 1612.
CHERRIN BROS. CO ., CHERRIN PRODUCTS CO. 531
4. At all times since January 27, 1964, the Union has been and con-
tinues to be the exclusive bargaining representative of all the em-
ployees in the aforementioned unit for the purpose of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively on March 10, 1964, and there-
after with Office Employees' International Union, Local 10, AFL-
CIO, as the duly certified exclusive bargaining representative of their
employees in the aforesaid unit, the Respondents have engaged in un-
fair labor practices within the meaning of Section 8(a) (5) of the Act.
.6. By refusing to bargain with the Union, the Respondents have
interfered with, restrained, and coerced their employees' in the exer-
cise of rights guaranteed in Section 7 of the Act, thereby engaging in
an unfair labor practice within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby orders that the Respondents, Cherrin
Bros. Co., Cherrin Products Co., their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Office Employees' Inter-
national Union, Local 10, AFL-CIO, as the exclusive bargaining
representative of the employees in the following appropriate bar-
gaining unit:
All office clerical employees employed by Respondents Cherrin
Bros. Co., Cherrin Products Co., in their offices at 6340 Miller Road,,
Dearborn, Michigan, excluding professional employees, guards, and
supervisors as defined in the Act, and all other employees.
(b) In any other manner interfering with the efforts of the ex-
clusive representative of the employees to bargain collectively in their
behalf.
2. Take the following affirmative action which is necessary to ef-
fectuate the policies of the Act :
(a) Upon request, bargain collectively with Office Employees' Inter-
national Union, Local 10, AFL-CIO, as the exclusive representative
of the employees in the appropriate unit described in paragraph 1 (a)
above, with respect to rates of pay, wages, hours of work, and other
terms and conditions of employment, and embody in a signed agree-
ment any understanding reached.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its- facilities in Dearborn, Michigan, copies of the at-
tached notice marked "Appendix." I Copies of said notice, to, be fur-
nished by the Regional Director for the Seventh Region, shall, after
being duly signed by the Respondents, be posted by the Respondents
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have 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
Decree 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 policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE wiLL, upon request, bargain collectively with Office Em-
ployees' International Union, Local 10, AFL-CIO, as the exclu-
sive bargaining representative of our employees in the appropriate
unit described below :
All office clerical employees employed in our offices at 6340
Miller Road, Dearborn, Michigan, excluding professional
employees, guards, and supervisors as defined in the Act, and
all other employees.
WE WILL NOT in any other manner interfere, with the efforts of
said Union to bargain collectively with us, or refuse to bargain
with said Union as the representative of our employees in the
appropriate unit.
CHERRIN BROS. Co.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
CHERRIN PRODUCTS Co.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
THE DENVER PHOTO-ENGRAVERS' UNION NO. 18, ETC . 533
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, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 963-9330, if they have any question concerning
this notice or compliance with its provisions.
The Denver Photo -Engravers' Union No. 18, International Photo-
Engravers Union of North America, AFL-CIO and The Denver
Publishing Company . Case No. 27-CD-39. June 18,1964
DECISION AND ORDER
On April 22, 1964, Trial Examiner Fannie M. Boyls issued her De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
violative of Section 8(b) (4) (ii) (D) of the Act, and recommending
that it cease and desist therefrom and take certain affirmative action,
as recommended in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
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
Brown].
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 and the entire record in this case, including the
exceptions and brief, 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, The
Denver Photo-Engravers' Union No. 18, International Photo-
Engravers Union of North America, AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
" Respondent 's exceptions relate to findings originally made in the Board's Decision and
Determination of Dispute issued on November 7, 1963 (144 NLRB 1408). We have ex-
amined these exceptions and find no warrant therein for a reconsideration of our determi-
nation in the earlier proceeding or a dismissal of this complaint as urged by Respondent.
147 NLRB No. 67.