J. Brenner & Sons, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1965

154 N.L.R.B. 656 (N.L.R.B. 1965)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form, join, or
assist labor organizations , to bargain collectively through representatives of their
own choosmg , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed by Section 7 of the
Act, and to refrain from any and all such activities.
All our employees are free to become or remain , or to refrain from becoming or
remaining members of Amalgamated Clothing Workers of America, AFL-CIO,
or any other labor organization.
DUBIN-HASKELL LINING CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify Fred A. Cox if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948 , as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by an 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, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone
No. 524-3161.
J. Brenner & Sons, Inc. and International Union of District 50,
United Mine Workers of America . Case No. 5-CA-3078. Au-
gust 20,1965
DECISION AND ORDER
Upon a charge filed on March 11, 1965, by International Union
of District 50, United Mine Workers of America (herein called the
Union), against Respondent J. Brenner & Sons, Inc., and duly
served on Respondent on or about March 11, 1965, the General
Counsel for the National Labor Relations Board by the Regional
Director for Region 5, on April 13, 1965, issued and served upon the
parties herein a complaint and notice of hearing. The complaint
alleges that Respondent had engaged in and was engaging in certain
unfair labor practices affecting commerce within the meaning of
Section 8(a) (1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended.
With respect to the unfair labor practices, the complaint alleges
that on or about February 12, 1965, the Union was duly certified by
the Board i as the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropriate by the Board
and that, since on or about March 5, 1965, Respondent has refused
to recognize or bargain with the Union as such exclusive bargaining
representative, although it has been requested to do so.
'Case No. 5-RC-4917. On February 17, 1965, the Board entered an Order correcting
the title of its Decision of February 12, 1965.
154 NLRB No. 49.
J. BRENNER & SONS, INC. 657
On or about May 25, 1965, all parties to this proceeding entered
into a stipulation wherein they agreed as to the contents of the
record in this case 2 and to the submission of this case to the Board
for findings of fact, conclusions of law, and a Decision and Order.
The parties waived hearing before a Trial Examiner and the issu-
ance of a Trial Examiner's Decision. The Respondent reserved the
right to file a brief and made an offer of proof.
On June 3, 1965, the Board issued an Order approving stipulation
and transferring case to the Board and for submission of briefs?
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 Fanning, Brown, and Jenkins].
Upon the basis of the aforementioned stipulation and the entire
record in this case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the parties have stipulated, and we find,
Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We find Respondent, a Delaware corpora-
tion, has its principal place of business in Washington, District of
Columbia, where it is engaged in the purchase and sale of scrap iron.
In the course and conduct of its business operations during the 12-
month period prior to the issuance of the complaint herein, Respond-
ent shipped goods and materials valued in excess of $50,000 from
its place of business in Washington, District of Columbia, directly
to points outside said District of Columbia to States of the United
States. We, therefore, find that it will effectuate the policies of the
Act to assert jurisdiction herein.
2 The record as stipulated to by the parties consists of the stipulation and the follow-
ing: The charge, complaint, and notice of hearing herein and Respondent's answer and the
documents in Case No 5-RC-4917 ; Including the petition for certification filed Octo-
ber 30, 1964 ; stipulation for certification upon consent election ; notice of election ; tally
of ballots issued November 12, 1964 ; certification on conduct of election on November 12,
1964 , corrected tally of ballots, issued November 12, 1964 ; letter dated November 12,
1964, from the Board field examiner to the attorney for Respondent in explanation of the
corrected tally of ballots ; official secret ballot of employee, Will Watson, showing signa-
ture of "Will Watson" In the top margin and the word "On" written adjacent to the
word "No" appearing above the square in the "No" box ; report on challenges issued by
the Regional Director, Region 5, December 10, 1964; exceptions to the Regional Direc-
tor's report filed by Respondent December 18, 1964 ; Decision and Certification Issued by
Board, February 12, 1965 ; Order Correcting Decision dated February 17, 1965.
A brief has been received from Respondent.
206-446-66-vol. 151-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine Workers of
America, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about October 30, 1964, the Union filed a petition in Case
No. 5-RC-4917 seeking certification as exclusive bargaining repre-
sentative of certain employees of Respondent at its Washington,
District of Columbia, plant. Thereafter, the parties entered into a
stipulation for certification upon consent election, pursuant to which
an election by secret ballot was held on November 12, 1964, under
the direction and supervision of the Regional Director for Region 5,
among the employees in the unit described below. The tally of
ballots showed that seven ballots were cast for and six against the
Union, and that one ballot, that of employee Will Watson, was chal-
lenged by the Board agent which challenge was sufficient to affect
the results of the election.
The Regional Director, acting pursuant to the Board's Rules and
Regulations, Series 8, as amended, investigated the challenge and, on
December 10, 1964, issued his report thereon in which he recom-
mended that the challenge to the ballot of Watson be sustained, and
that the petitioning Union be certified as the representative of the
employees in the unit. The Respondent filed timely exceptions to
the report.
Thereafter, the Board, after due consideration of the entire record
in Case No. 5-RC-4917, including the Regional Director's report and
the exceptions thereto, issued its Decision on February 12, 1965, as
amended February 17, 1965, in which it adopted the recommenda-
tion of the Regional Director with respect to the ballot of Watson.
Accordingly, as the Union had received a majority of the ballots cast
by eligible employees, the Board certified the Union as the exclusive
collective-bargaining representative of Respondent's employees in
the unit set forth below.
On or about February 24, 1965, the Union requested that Respond-
ent bargain with it as the exclusive bargaining representative of the
employees in the certified unit. On or about March 5, 1965, and
until the present time, Respondent refused to bargain with the
Union, contending, as set forth in a letter of that date, that the cer-
tification was invalid in that the Board was in error in sustaining
the challenge to the ballot of Watson.
J. BRENNER & SONS, INC. 659
A. The appropriate unit
The parties stipulated, and the Board found, in Case No. 5-RC-
4917, which finding we adopt herein, that the following employees
of Respondent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act :
All production and maintenance employees employed by Respondent,
excluding all office clerical employees, guards, and supervisors as
defined in the Act.
B. Conclusion
We find that the Respondent, in violation of Section 8(a) (5) and
(1) of the Act, has refused to bargain, upon request, with the Union
which has been duly certified as the bargaining representative of its
employees in an appropriate Unit .4
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of Respondent described in section III, above, occurring
in connection with its operations, have a close, intimate, and sub-
stantial relation to trade, traffic, and commence among the several
States, and within the District of Columbia, tend to lead to labor
disputes burdening and obstructing commerce and the free flow
thereof, and thus constitute unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (5) and (1) of the Act, we
* Respondent , in defending its refusal to bargain , attacks the validity of the certifica-
tion on grounds that the Regional Director improperly excluded a ballot which would
have affected the results of the election . In this connection, the record shows that em-
ployee Watson , in attempting to register a "no" vote , affixed his signature to the ballot.
Such being the case, the Regional Director , in refusing to count this vote , acted pursuant
to the Board 's longstanding policy of invalidating ballots which reveal the identity of
the voter George K. Garrett Company, Inc., 120 NLRB 484, 485-486, Ebco Manufac-
turing Company, 88 NLRB 983, 984; N.L.R B. v. National Truck Rental Co., 239 F. 2d
422, 426 (CA. 2). Nevertheless, Respondent argues that the Board's established policy
should not be applied to the instant case , for, as set forth in its otter of proof, Watson, if
permitted to testify, would state that he deliberately signed his ballot with the intention
of waiving its secrecy . Contrary to the Respondent, we are of the opinion that to rec-
ognize a distinction in the announced rule, where a voter has waived the secrecy of his
ballot, would defeat the principles of a secret election . The secret ballot is expressly
required by the Act. The Board is under a duty to preserve it and it is a matter of
public concern , rather than a personal privilege subject to waiver by the individual voter
Moreover , to give effect to such a waiver would remove any protection of employees from
pressures, originating with either employers or unions , to prove the way in which their
ballots had been cast , and thereby detract from the laboratory conditions which the
Board strives to maintain in representation elections Accordingly, we find that Re-
spondent 's offer of proof raises no substantial issue affecting the validity of the
certification.
660 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
shall order that the Respondent cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
purposes of the Act.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, we make the following :
CONCLUSIONS of LAW
1. J. Brenner & Sons, Inc., is an Employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Union of District 50, United Mine Workers of
America, is a labor organization within the meaning of Section 2 (5)
of the Act.
3. All production and maintenance employees employed by Re-
spondent, excluding all office clerical employees, guards, and super-
visors, as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 2(5)
of the Act.
4. The Union is, and at all times since February 12, 1965, has
been, the exclusive, certified representative of all employees in the
aforesaid unit, for purposes of collective bargaining with respect to
wages and other terms and conditions of employment, within the
meaning of Section 9 (b) of the Act.
5. 'Commencing on February 24, 1965, and continuing to date, the
Union has requested and is requesting that Respondent bargain col-
lectively with it with respect to wages and other terms and condi-
tions of employment of all of the employees of Respondent in the
appropriate unit.
6. By refusing on or about March 5, 1965, and at all times there-
after, to bargain collectively with the Union as the exclusive collec-
tive-bargaining representative of all employees of Respondent in the
appropriate unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) of the
Act.
7. By the aforesaid refusal to bargain, Respondent has interfered
with, restrained, and coerced and is interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and thereby did engage in, and is en-
gaging in, unfair labor practices within the meaning of Section
8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
J. BRENNER & SONS, INC. 661
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent , J. Brenner & Sons, Inc ., Washington , District of
Columbia, its officers, agents , successors, and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith with Inter-
national Union of District 50, United Mine Workers of America, as
the exclusive and duly certified representative of all employees in the
following appropriate unit : All production and maintenance em-
ployees employed by Respondent , excluding all office clerical em-
ployees , guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with , restraining,
or coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action which it is found will
effectuate the purposes of the Act :
(a) Upon request, bargain collectively with the above -named Union
as the exclusive representative of all employees in the aforesaid appro-
priate unit with respect to rates of pay, wages , hours, and other terms
and conditions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Washington , D.C., plant, copies of the attached
notice marked "Appendix ." 5 Copies of said notice , to be furnished
by the Regional Director for Region 5, shall, after being duly signed
by the Company 's representative , be posted by the Company immedi-
ately 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. Reasonable steps shall
be taken by the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director for Region 5, in writing , within
10 days from the date of this Decision and Order , what steps have
been 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 Decision 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 purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International
Union of District 50, United Mine Workers of America, as the
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 employees 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 rates of pay, wages,
hours of employment, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such under-
standing in a signed agreement.
The bargaining unit is:
All our production and maintenance employees, excluding all
office clerical employees, guards, and supervisors as defined in the
Act.
J. BRENNER & SONS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland,
Telephone No. 752-2159, if they have any questions concerning this
notice or compliance with its provisions.
Rivers Mfg. Corp . and International Union of Mine, Mill and
Smelter Workers . Cases Nos. 26-CA-1991 and 26-CA-2022.
August 23,1965
DECISION AND ORDER
On May 17, 1965, Trial Examiner W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent and General Counsel
filed exceptions to the Trial Examiner's Decision with supporting
briefs.
154 NLRB No. 51.