Eugene Simpson & Brother, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1965

153 N.L.R.B. 1438 (N.L.R.B. 1965)

1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing factual findings and conclusions , I come to the following:
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
3. Neither Respondent Employer nor Respondent Union has engaged in or is
engaging in any unfair labor practices as alleged in the consolidated complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the consolidated complaint be dismissed in its entirety.
Eugene Simpson & Brother, Inc. and Laborers' District Council
of Washington , D.C., and Vicinity , affiliated with the Interna-
tional Hod Carriers ', Building and Common Laborers' Union
of America , AFL-CIO. Case No. 5-CA-3025. July 14, 1965
DECISION AND ORDER
On May 10, 1965, Trial Examiner William J. Brown issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Brown and Zagoria].
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, the brief, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations 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 Order recommended by the Trial Examiner, and orders that
the Respondent, Eugene Simpson & Brother, Inc., its officers, agents,
successors , and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
1 See 0 K Van and Storage, Inc., 127 NLRB 1537 , 1539, enfd . 297 F 2d 74 ( C.A. 5).
153 NLRB No. 127.
EUGENE SIMPSON & BROTHER, INC. 1439
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter sometimes referred to as the Act, originated with a charge
filed January 13, 1965, by the above-indicated Charging Party, hereinafter some-
times referred to as the Union, with timely service thereof on the above-indicated
Respondent, Eugene Simpson & Brother Inc., hereinafter sometime referred to as the
Company. Thereafter on January 20, 1965, the General Counsel of the National
Labor Relations Board, hereinafter sometimes referred to as the Board, on behalf
of the Board and by the Regional Director for Region 5, issued the complaint herein.
It alleged, in addition to jurisdictional matter, that the Company engaged in unfair
labor practices defined in Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act by refusing from and after December 7, 1964, to bargain collectively with
the Union as the exclusive representative of company employees in an appropriate
unit. Respondent's duly filed answer concedes the jurisdictional allegations of the
complaint and the Union's demand for bargaining and Respondent's refusal thereof.
Respondent's answer affirmatively alleges that its refusal of bargaining was based,
in part, upon errors and irregularities in Board proceedings upon the representation
petition including the denial of a hearing on Respondent's objections to the election
and the conduct thereof.
On the complaint and answer, hearing was held at Washington, D.C., on March 1,
1965, before Trial Examiner William J. Brown. All parties appeared and were
represented by counsel as indicated above. The General Counsel's evidence, entirely
documentary, consisted of the formal documents in the complaint case, those in the
precedent representation case, and an exchange of letters establishing the Company's
refusal to bargain on the basis of alleged error in the Board's representation pro-
ceedings. Subsequent to the hearing the Company filed a brief which I have fully
considered On the basis of the documentary evidence herein, and upon considera-
tion with the oral and written arguments of counsel and the entire record in this
case,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT-EMPLOYER
The Company is a corporation organized and existing under the laws of the
Commonwealth of Virginia and having its principal place of business at Alexandria,
Virginia. It is engaged in the general construction of commercial and industrial
buildings in the Commonwealth of Virginia. During the 12-month period preceding
issuance of the complaint, admittedly a representative period, the Company received
goods, materials, and products having a value in excess of $50,000 at its Alexandria,
Virginia, location from suppliers who received said goods, materials, and products
from points located outside the Commonwealth of Virginia. Respondent concedes
that it is and has been at all material times engaged in commerce within the meaning
of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It appears from the complaint and answer and the entire record herein, and I find,
that the Union is a labor organization within the purview of Section 2(5) of
the Act.
In. THE UNFAIR LABOR PRACTICES
A. The representation case
On May 26, 1964, the Union filed with the Board's Regional Office its petition in
Case No. 5-RC-4707 seeking certification pursuant to Section 9 of the Act as
collective-bargaining representative of Respondent's employees in a unit described
as "building and construction laborers' employed by the Employer in the State of
Virginia" exclusive of "supervisors as defined in the Act." On June 5, 1964, the
Regional Director issued and served on parties a notice of a representation hearing
to be held in Washington, D.C., on June 12, 1964. Following the hearing, at which
the Company sought a larger unit than that set forth in the Union's petition, so as
to include all its laborer employees not represented by other labor organizations,
including certain truckdrivers, watchmen, equipment operators, stake-out men, watch-
The General Counsel has filed a motion to correct transcript and Respondent has filed
a consent to the General Counsel's motion and a motion for further corrections. These
two motions are granted and the transcript is ordered corrected accordingly.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, and related laborer classifications, the Regional Director directed an election
in the larger unit. His Decision and Direction of Election states that the unit decided
upon as appropriate for the election was that stipulated by the parties.2
On July 7, 1964, Local 77, International Union of Operating Engineers, filed with
the Regional Director a petition for an election in a unit comprising the five heavy
equipment operators included in the broader unit already established by the Regional
Director's Direction of Election of June 22. The Regional Director notified the
Employer of this filing but dismissed the Operating Engineers petition on July 20.
On July 20, the election herein involved was held at 14 different jobsites where
company employees were performing work. James G. Sanders, a timekeeper
employed by the Company, who acted as its observer at each of the polling places,
signed 14 certifications respecting the conduct of the election at each of the 14
polling places. Such certifications included his attestation that the balloting was
fairly conducted, that all eligible voters were given an opportunity to vote their
ballots in secret, and that the ballot box was protected in the interest of a fair and
secret vote. The results of the election showed that out of approximately 138
eligible voters 101 employees cast their ballots of whom 73 voted for the Union, 21
voted against the Union, and 7 votes were challenged.
Thereafter, within the applicable time prescribed by the Board's Rules and Regula-
tions, Series 8, as amended, the Company filed its objections to the election and the
conduct thereof under 10 different headings as follows
1. The Regional Director erroneously dismissed the Operating Engineers petition
without hearing.
II. Two of the Union's challenges to voters are of such a nature as to reveal that
the Union's inclusion of these categories in its petition establishes that the Union
included them merely to obtain an election.
III. The election was held without adequate notice of the polling periods and
without opportunity for some employees to vote.
IV. Supervisory employees urged employees to vote for the Union.
V. The Union planted workers among employees to encourage a prounion vote.
VI. One Raymond Mooney was removed from the eligibility list on the Union's
objection to him as a supervisor. Since the Union solicited him to join on July 15,
it appears that the Union misrepresented his supervisory status.
VII. A union organizer was permitted to remain in the voting area while the polls
were open whereas company superintendents were instructed by Board agents to
stay away while the polls were open.
VIII. Union representatives threatened and coerced many employees.
IX. Union representatives promised employees increases in wages if they would
vote for the Union.
X. Members of other labor organizations interfered with the election by destroy-
ing Employer signs relating thereto.
On September 15, 1964, the Acting Regional Director for Region 5 issued his
Supplemental Decision detailing the results of his investigation of the employer's
10 objections. Each of the Employer's objections is therein considered in detail and
rejected for reasons set forth in the Supplemental Decision. Objection No. 5 was
overruled on the basis of the Employer's failure to offer evidence in support thereof.
All objections to the conduct of the election having been overruled, the Supplemental
Decision contains the certification of the Union as the representative in the unit
involved under date of September 15, 1965.
On September 25, 1964, the Company filed with the Board in Washington a
request for review of the Regional Director's Supplemental Decision and Certifica-
tion of Representatives coupled with a request for hearing. The Company's request
for review and for hearing reasserts, with additional argument, the position set forth
in the objections previously filed with the Regional Director.
By telegram dated November 13, 1964, the Board denied the Company's request
for review on the basis that it presented no substantial issue warranting review.
B. The refusal to bargain
Respondent's answer admits the allegations of the complaint to the effect that the
Union requested and the Employer refused bargaining at all material times. In addi-
tion, the evidence in the complaint case includes an exchange of letters commencing
with a union bargaining request of November 18, 1964, and culminating with a
company refusal on December 7, 1964. At the hearing in the instant case the Com-
' Respondent 's brief in the instant case confirms that the unit involved in the election
was that stipulated by the parties
EUGENE SIMPSON & BROTHER, INC. 1441
pany, admitting its refusal to bargain, asserted that its refusal was justified on the
basis of error in the course of the representation proceeding. The Company set forth
offers to prove by the testimony of various witnesses that the certification of the
Union was improperly issued.
There is no contention made by Respondent that the matters contained in the sev-
eral offers of proof were newly discovered or otherwise could not have been presented
in the representation proceeding. In fact they all were fully considered and rejected
therein.
Respondent in its brief contends that it has a legal right to litigate before me the
validity of the proceedings leading to the certification of the Union. This position
does not appear to be valid. Davis Cafeteria, Inc., et al., 145 NLRB 82.
Accordingly, I find that the Company engaged in an unfair labor practice within
the scope of Section 8(a)(5) and (1) of the Act by refusing to bargain with the
Union on request following the Board's denial of the Company's request for review
of the Acting Regional Director's Supplemental Decision, Order, and Certification
of Representatives.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, and there found
to constitute unfair labor practices defined in the Act, occurring in connection with
the Respondent's 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.
V. THE REMEDY
In view of my finding that Respondent has engaged in the unfair labor practices
alleged in the complaint, I shall recommend that it be required to cease and desist
therefrom and take such affirmative action as appears necessary and appropriate to
effectuate the policies of the Act. Specifically the Respondent will be ordered to
bargain collectively with the Union as the exclusive representative of the employees
in the appropriate unit as determined in the representation proceedings and embody
any understanding reached as a result of such collective bargaining in a signed
memorandum of agreement.
On the basis of the foregoing findings of fact, and upon the entire record in this
case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company 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. All building and construction laborers employed by the Company in the
Commonwealth of Virginia, including laborers who operate equipment part time,
drive trucks, service equipment, including material yardmen, stake-out men, watch-
men, field timekeepers, scaffold builders, and mixer operators, but excluding all other
employees, office clerical employees, guards, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.3
4. The Union has been at all times on and after September 15, 1964, the exclusive
representative of Respondent's employees in the above-indicated unit.
5. By refusing on or about December 7, 1964, and at all times thereafter to bargain
collectively in good faith with the Union as the exclusive representative of all
employees in the above-described unit, Respondent has engaged in and is engaging
in unfair labor practices within the scope of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of 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
8 This is the unit found appropriate in the election proceedings on the basis of the
parties' stipulation.
796-027-66-vol. 153-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, I recommend that Respondent, Eugene Simpson &
Brother, Inc., Alexandria, Virginia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive representative of its
employees in the unit herein found appropriate concerning rates of pay, wages, hours
of employment, and other terms and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find necessary and appropriate to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit described above, with respect to
pay, wages, hours of employment, and other terms and conditions of employment,
and, if understanding is reached, embody such understanding in a written signed
agreement.
(b) Post at its place of business in Alexandria, Virginia, and at all jobsites where
employees in the classifications embraced within the Union's certification are
employed, copies of the attached notice marked "Appendix." 4 Copies of said
notice, to be furnished by the Regional Director for Region 5, shall after being signed
by Respondent's representative, be posted by Respondent immediately 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. Rea-
sonable steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by 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.5
4If 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 shall 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".
5 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 12, in writing, within 10 days from
the date of this Order, what steps the Respondent 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, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Laborers' District Council
of Washington, D.C., and Vicinity, affiliated with the International Hod Car-
riers', Building and Common Laborers' Union of America, AFL-CIO, as the
exclusive representative of 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 their rights to self-organization, to form, join,
or assist labor organizations, and to bargain collectively through representatives
of their own choosing, or to refrain from such activities.
WE WILL, upon request, bargain collectively with the aforesaid Union as
exclusive representative of employees in the bargaining unit described below with
respect to rates of pay, wages, hours and other terms and conditions of employ-
ment, and will embody any understanding reached in a signed agreement.
The bargaining unit is:
All building and construction laborers employed by Eugene Simpson &
Brother, Inc., in the Commonwealth of Virginia, including laborers who
operate equipment part time, drive trucks, service equipment, including
material yardmen, stake-out men, watchmen, field timekeepers, scaffold
builders, and mixer operators, but excluding all other employees, office
clerical employees, guards, professional employees, and supervisors as
defined in the Act, as amended.
EUGENE SIMPSON & BROTHER, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
N. HAVEN, MERIDEN & B'PORT ELECTROTYPERS, ETC. 1443
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 707 North
Calvert Street, Sixth Floor, Baltimore , Maryland, Telephone No. 752-8460.
New Haven , Meriden & Bridgeport Electrotypers Union No. 83,
International Stereotypers and Electrotypers Union , AFL-CIO
and Meredith Printing Company (West Haven Plant ) and New
Haven Typographical Union No . 47, International Typographi-
cal Union , AFL-CIO. Case No. 1-CD-95. July 14,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following the filing of a charge by Mere-
dith Printing Company (West Haven Plant), herein called the
Employer, alleging that New Haven, Meriden & Bridgeport Electro-
typers Union No. 83, International Stereotypers and Electrotypers
Union, AFL-CIO, herein called the Electrotypers, had violated Sec-
tion 8 (b) (4) (D) of the Act. The charge alleges, in substance, that the
Electrotypers threatened a work stoppage against the Employer in
order to force the Employer to assign certain work to the Electrotypers
rather than to members of the New Haven Typographical Union No.
47, International Typographical Union, AFL-CIO, herein called the
Typographers. Thereafter, a duly scheduled hearing was held before
Hearing Officers S. Anthony di Ciero and Henry M. Kelleher on Feb-
ruary 4 and March 16, 1965. All parties appeared at the hearing and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues. The
rulings of the Hearing Officers made at the hearings are free from
prejudicial error and are hereby affirmed. All parties submitted
briefs.
Pursuant to the provisions of Section 3 (b) or the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Members Fanning, Brown and Jenkins].
Upon the record in this case, the Board makes the following findings :
I. THE BUSINESS OF THE EMPLOYER
The Employer is a printing company which maintains its principal
office in Des Moines, Iowa, and operates a composing room facility at
West Haven, Connecticut. The Employer ships from its West Haven
plant directly to points located outside the State of Connecticut prod-
ucts valued in excess of $420,000 per annum. The parties stipulated,
153 NLRB No. 126.