Hood Corp.

National Labor Relations Board - Board Decisions

Jun 4, 1964

147 N.L.R.B. 273 (N.L.R.B. 1964)

HOOD CORPORATION AND CESCO
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
273
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of the Company, 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 Respondent refused to bargain collectively in violation of Sec-
tion 8(b) (3) of the Act by engaging in the strike it began on June 1, 1963, and order-
ing or instructing the employees of the Company to strike, and by failing to notify
the Federal Mediation and Conciliation Service and the Kentucky Department of
Labor of the existence of a dispute within the meaning of Section 8(d)(3) of the
Act within 30 days after the service of the notice on the Company that it intended
to terminate the contract, I shall order Respondent to cease and desist from violating
Section 8(b)(3) by striking, or ordering the employees of the Company to strike,
without complying with the requirements of Section 8(d), and by failing to notify
the Federal Mediation and Conciliation Service and the Kentucky Department of
Labor as required by Section 8(d) (3).
CONCLUSIONS OF LAW
1. Cream Top Creamery, Inc., is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent Milk, Ice Cream Drivers and Dairy Employees, Local No. 783 of
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of Section 2(5) of the Act.
3. The said Company's employees employed as drivers and plant employees, ex-
cluding office clerical employees, guards, and supervisors, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. Respondent is the exclusive representative of all the employees in the aforesaid
appropriate unit for the purposes of collective bargaining, within the meaning of
Section 9(a) of the Act.
5. Respondent has refused to bargain collectively in violation of Section 8(b)(3)
of the Act by failing to comply with Section 8(d) of the Act as found in section III
above.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Hood Corporation and Contractors' Equipment Supply Com=
pany. d/b/a Cesco and International Union of Operating En-
.girieers, Local 370, AFL-CIO. Cases Nos. 19-CA-2675 and
19-CA-2688. Jwne 4, 1964
DECISION AND ORDER
On October'23, 1963, Trial Examiner Wallace E. Roysterissued his.
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision with supporting argument.
147 NLRB.No. 36.
756-236-65-vol. 147-19 '
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act,,the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman McCulloch and
Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record in these cases,
including the Trial Examiner's Decision, and the exceptions and argu-
ment in support thereof, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
additions.
Respondent attacks the validity of the certification issued by the
regional Director in Case No. 19-RC-3222. It contends that the
Regional Director improperly considered the Union's challenges to
certain ballots, and, further, that the Regional Director erred in
sustaining two of the challenges. In support of its position, Re-
spondent offered to prove, (1) that during a preelection conference, its
representatives and representatives of the Union entered into an oral
agreement that there would be no challenges to said ballots or any
of the individuals on the payroll list, and (2) that the two individuals
as to whom the Regional Director upheld challenges, included, con-
trary to the Regional Director's determination, an employee who was
no longer a supervisor at the time of the election and another employee
who was not a part-time casual employee, and that, consequently, the
Regional Director erred in sustaining the union challenges to their
ballots.
As found by the Trial Examiner, the election involved herein was
conducted pursuant to a consent-election agreement which provided
that the determination of the Regional Director would be final and
binding as to any question relating to the election. It long has been
established policy that in such consent proceedings, the Board will
not entertain appeals from the Regional Director's determinations, or
otherwise review such determinations, in the absence of evidence
clearly establishing that the Regional Director's action was arbitrary
or capricious.' Respondent's offer of proof falls far short of establish-
ing that the Regional Director acted arbitrarily or capriciously, either
in entertaining the challenges,' or in his ruling on such challenges a
'David Dankner,. d/b/a Dankner Motor Sales, 107 NLRB 1277; Sumner Sand &
Gravel Company, 128 NLRB 13G8, enfd. 293 F. 2d 754 (C.A. 9) ; Parkhurst Manufactur-
ing Company, Inc., 136 NLRB 872, enfd. 317 F. 2d 513 (C.A. 8).
2 An agreement between the parties settling questions of voter eligibility will be hon-
ored by the Board, only if the agreement is in writing. Norris-Thermador Corporation,
119 NLRB 1301. Even a written agreement will be set aside if it does not conform to
Board or statutory policy, Westlake Plastics Company and Crystal--X Corporation, 119
NLRB 1434.
a Even assuming that the Regional Director erred in his ruling on the challenged ballots,
this is an insufficient basis for going behind the consent-election agreement' which makes
his decision final and binding on the parties, Parkhurst Manufacturing Company, Inc.,
supra, footnote 1.
HOOD CORPORATION AND CESCO 275
Accordingly, we find, in agreement with the Trial Examiner, that
the Respondent violated Section 8(a) (5) in refusing to bargain with
the Union pursuant to the certificate issued in Case No. 19-RC-3222.
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, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter came on to be heard before Trial Examiner Wallace E. Royster in
Boise, Idaho, on October 11, 1963.1 The complaint issued September 17 upon
charges filed by International Union of Operating Engineers, Local 370, AFL-CIO,
herein called the Union, on July 19 and August 2. As amended at the hearing, it
alleges that Hood Corporation and Contractors' Equipment Supply Company d/b/a
Cesco, herein called the Respondent, has, by refusing to bargain with the Union,
engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, herein called the Act.
Upon the entire record in the case,'I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
As alleged in the complaint and admitted in the answer, I find that Hood Cor-
poration (a California corporation) and Contractors' Equipment Supply Company
d/b/a Cesco (an Idaho corporation) are, and at all times material herein have been,
engaged in the business of constructing gas pipelines in Idaho, Montana, and
North Dakota. During the past year, Respondent furnished services to the
United States Air Force to a value in excess of $1,000,000. These services had a
substantial impact on national defense. I find that the Respondent is, and at all
times material herein has been, an employer within the meaning of Section 2(2)
of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE UNFAIR LABOR PRACTICES
Respondent's answer admits , and I find , that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
On March 22 , the Union and the Respondent entered into a consent -election
agreement in the usual form which was approved by the Regional Director for
the Nineteenth Region on March 27 . The agreement provided in pertinent part:
.. the determination of the Regional Director shall be final and binding upon any
question , including questions as to the eligibility of voters , raised by any party
hereto relating in any manner to the election , ..." Pursuant to this agreement, an
election was conducted by agents of the National Labor Relations Board under the
direction of the Regional Director for the Nineteenth Region . Fifteen ballots were
cast and four of these were challenged by the Union . The initial count gave six
votes for the Union and five against . As the challenged ballots were sufficient in
number to be determinative of the outcome of the election , the Regional Director
caused an investigation to be made, and , on May 1, ruled that two of the challenged
ballots be opened and counted and that the challenges to the remaining two be
sustained . The revised count then gave ' seven votes to the Union and six against it.
On May 7 the Regional Director issued his certification of representative , finding
the Union to have been designated as the exclusive representative of all employees
for purposes of collective bargaining . Thereafter , on May 9 , 1963 , the Respondent
forwarded exceptions to the Regional. Director 's ruling on challenged ballots to
I All dates mentioned are In 1963.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board in Washington, D.C. On May 20, the Board,
through its Associate Executive Secretary, wrote the Respondent that in view of
the agreement to leave all matters to the determination of the Regional Director,
the Board was refusing to entertain an appeal from the Regional Director's action
and would not consider the exceptions.
Respondent's answer admits, and I find, that all journeymen mechanics, field
mechanics, welders, automatic welders, and helpers, and all other shop employees
employed by Respondent, excluding office clerical employees, guards, supervisors,
and professional employees as defined by the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(b) of the Act.
At the 'hearing, counsel for the Respondent offered to prove that prior to the
balloting an agreement was reached between the Respondent and the Union, with
the approval ,of an agent of the Regional Director,.that all 15 employees would be
permitted to vote without challenge. Respondent argues that the Board in Consoli-
dated Industries, Inc.,2 enunciated a policy of honoring such agreements and of
refusing to consider challenges inconsistent with such an understanding. It is not
clear from this record whether, in the course of the investigation made by the
Regional Director relative to the challenged ballots, this argument was advanced for
his consideration. It is true, however, that in the exceptions to the ruling on chal-
lenged ballots, counsel for the Respondent in his communication to the Board
seeking to have that ruling set aside or modified, asserted as a ground for such
action that there had been an agreement on an eligibility list and that in consequence
the ballots of all who voted should have been counted.
The Board refused to consider the exceptions. I assume that it took this action in
full awareness of the nature of Respondent's argument. Considering the breadth
of authority reposed in the Regional Director by the terms of the consent-election
agreement, together with the finality to be accorded his ruling, and cognizant of
the Board's refusal to consider Respondent's exceptions, I find that I have no au-
thority to take any action in the circumstances either to modify the ruling of the
Regional Director or in any respect to review the action of the Board.
I find that the Union is the exclusive bargaining representative of Respondent's
employees in the appropriate unit. By refusing, as it has, to recognize and to bargain
with the Union as such representative, the Respondenthas engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with its operations 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 commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Respondent has refused unlawfully to bargain with the
Union, I will recommend that, upon request, the Respondent bargain with the Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent 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, and at all times material herein has been the majority representative of Re-
spondent's employees in the appropriate unit.
3. All journeymen mechanics, field mechanics, welders, automatic welders, and
helpers, and all other shop employees employed by Respondent, excluding office
clerical employees, guards, supervisors, and professional employees as defined by
the Act, constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. By refusing, upon. request, to bargain with the Union as the exclusive repre-
sentative of Respondent's employees in the appropriate unit, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) -and (7) of the Act.
2116 NLRB 1204, 1207.
HOOD CORPORATION AND CESCO 277
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Hood Corporation
and Contractors' Equipment Supply Company d/b/a Cesco, Boise, Idaho, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain with the Union as the exclusive representa-
tive of Respondent's employees in the appropriate unit.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
the Union or any labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual paid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by the provisos of
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain with the Union as the exclusive representative of
the employees in the appropriate unit, and, if an understanding is reached, embody
it in a signed agreement.
(b) Post at its operations copies of the attached notice marked "Appendix." 3
Copies of the notice, to be furnished by the Regional Director for the Nineteenth
Region, shall, after being duly signed by an authorized representative of the Re-
spondent, be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are not altered, defaced,'or
covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date
of this Decision and Recommended Order, what steps the Respondent has taken in
compliance.4
3 In the event that this Recommended Order be 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. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, 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, we hereby notify you that:
WE WILL, upon request, bargain collectively with the International Union
of Operating Engineers, Local 370, AFL-CIO, as the exclusive representative
of the employees in the appropriate unit, and, if an understanding is reached,
embody it in a signed agreement. The appropriate unit is:
All journeymen mechanics, field mechanics, welders, automatic welders,
and helpers, and all other shop employees, excluding office clerical em-
ployees, guards, supervisors, and professional employees as defined by the
Act.
WE WILL NOT by refusing to bargain or in any like or similar manner inter-
fere with, restrain, or coerce employees in the exercise of rights guaranteed
them by Section 7 ,of the Act.
HOOD CORPORATION and CONTRACTORS' EQUIP-
MENT SUPPLY COMPANY d/b/a CESCO,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 327 Logan
Building, 500 Union Street, Seattle, Washington Telephone No. Mutual 2-3300,
Extension 553, if they have any questions concerning this notice or compliance with
its provisions.
The Coachman 's Inn and Hotel-Motel, Restaurant Employees
Union, Local 200, Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO. Case No. 26-CA-1555.
June 5, 1964
DECISION AND ORDER
On February 13, 1964, Trial Examiner Stanley N . Ohlbaum issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Decision.
He further found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter, the Respond-
ent filed exceptions to the Decision with a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
1 The Respondent's request for oral argument is hereby denied as, in our opinion, the
record including the exceptions and brief, adequately presents the issues and the position
of the parties.
2 These findings and conclusions were largely based upon credibility determinations of
the Trial Examiner, to which the Respondent excepted. As it is the Board's established
policy not to overrule the Trial Examiner's credibility findings unless the clear pre-
ponderance of all the relevant evidence convinces us that they were incorrect, we find no
basis for disturbing the Trial Examiner's credibility findings in this case. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
We find it unnecessary to pass on the Trial Examiner's second basis for finding the
8(a) (5) violation, in view of our agreement with his finding that the Respondent violated
its statutory duty to bargain in good faith by President Thompson's intrusion in a nego-
tiating meeting of May 1, 1963, and breaking it up by his threatening and intimidatory
remarks. In any event, we agree with the provision of the Trial Examiner's Recommended
Order that the Respondent bargain collectively with the Union on request, as an appro-
priate remedy in the circumstances.
147 NLRB No. 40.