John D. Roche, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1953

105 N.L.R.B. 445 (N.L.R.B. 1953)

JOHN D. ROCHE, INC. 445
Member Styles , dissenting:
For the reasons set forth by the Trial Examiner, I
would find, contrary to the majority, that the Respondent
failed and refused to bargain in good faith on the subject
of pensions and employee benefits from the outset of the
negotiations which began March 28 , 1949 . It follows there-
fore that the strike of May 8, 1949, was an unfair labor
practice strike, and that , to the extent found by the Trial
Examiner , the Respondent ' s refusal to reinstate the
strikers upon request was discriminatory.
Because of the occurrence of these unfair labor practices,
I would find, further, that the Respondent was not privileged
to refuse to bargain with the Union at any time following
the strike despite the pendency of the rival union's peti-
tion. For, under well-established principles, no valid
question concerning representation could exist while the
Respondent ' s unfair labor practices remained unreme-
died, L° and any loss of majority which might have occurred
could be attributed to the Respondent's unlawful conduct.
In the light of this holding as to the continuing duty of the
Respondent to bargain , I would also find , in accord with
the conclusion of the Trial Examiner , that the Respondent's
unilateral increases in rates of pay and in employee bene-
fits, constitute per se violations of Section 8 (a) (5) and
(1) of the Act.
In view of the foregoing, I need not and do not pass upon
the other unfair labor practices issues considered by my
colleagues.
20See N .L.R.B. v. Franks Bros ., 321 U.S.702; John Deere Plow Company. 82 NLRB 69;
Pacific-Gamble Robinson Co., 88 NLRB 482; Metropolitan Life Insurance Co., 91 NLRB
473.
JOHN D. ROCHE, INC. and LOS ANGELES PRINTING PRESS-
MEN & ASSISTANTS' UNION NO. 78, INTERNATIONAL
PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH
AMERICA, AFL, Petitioner. Case No. 21-RC-2913. June 8,
1953
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election ' issued by
the Board on March 17, 1953, an election by secret ballot was
conducted , under the supervision and direction of the Regional
Director for the Twenty-first Region, on April 13, 1953, among
letterpressmen and assistants employed by the Employer. The
tally of ballots shows that, of approximately 12 eligible voters,
1Not reported in printed volumes of Board decisions.
105 NLRB No 55.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 cast votes for the Petitioner , 2 against the Petitioner, and 7
ballots were challenged by the Petitioner.
Because the challenged ballots were sufficient in number to
affect the results of the election , the Regional Director caused
an investigation to be made, and , on April 24, 1953, issued his
report on challenged ballots. In his report , the Regional Director
recommended in substance that all the challenges be sustained.
The Employer timely filed exceptions to the Regional Director's
report. In addition to its exceptions to the Regional Director's
determination as to the challenged ballots, the Employer ques-
tions the eligibility of an employee who cast an unchallenged
ballot, and requests the Board to reconsider the unit finding.
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 [ Members
Houston , Styles, and Peterson].
In regard to the challenged ballots , the Regional Director
found that John D. Roche, Jr., is the son of the Employer's
president , and that the other six employees who cast challenged
ballots--Burton B. Boettiger , JosephKendall, Ivan J. Crawford,
Hubert Hutches, Joe Martinez , and Robert Clark-- only on rare
and irregular occasions work as pressmen or assistants. The
Regional Director recommended that the challenge to the ballot
of Roche, Jr., be sustained because of his relationship to
management and that the challenges to the remaining employees
in question be sustained because they do not have a substantial
interest in the terms and conditions of employment in the unit.
The Employer in its exceptions does not controvert the facts
found by the Regional Director.
As to the ballot of Roche, Jr., in accord with the Board's
customary practice of excluding such close relatives of
management , we agree with the Regional Director and shall
sustain the challenge to this ballot .' Concerning the other
challenged ballots, the Employer contends that the Regional
Director erred generally because the employees involved are
capable of running the presses and have in the past been
assigned to such work . The Employer concludes that these
employees , therefore , have a substantial interest in the terms
and conditions of employment within the pressmen's unit. We
do not agree . As the Board has previously held, inclusion in the
unit and eligibility to vote require substantial and regular
employment within the designated unit, rather than occasional
employment therein or ability to perform the work involved.'
Accordingly, we shall sustain the challenges to the ballots of
2International Metals Products Company, 104 NLRB 1076 The Employer's contention that
Roche, Jr., is being subjected to discriminatory legislation by reason of Section 2 (3) of the
Act which excludes, among others, "any individual employed by his parent or spouse" is
clearly without merit See N. L R. B. v. 0 U Hofmann 9, Sons. 147 F 2d 679 (C A. 3), en-
forcing 55 NLRB 683.
9See West Texas Utilities Company, 100 NLRB 267
PRYNE & COMPANY, INC. 447
employees Boettiger, Kendall, Crawford, Hutches, Martinez,
and Clark.
Nor do we find merit in the Employer's contention that one
employee, Kenneth Carter, who was permitted to vote an
unchallenged ballot, should have been excluded on the ground
that he also only occasionally works as a pressman . This is in
the nature of a post-election challenge and, therefore, will not
be considered by the Board. 4
Finally, we deny the Employer's request for reconsideration
of the unit finding. This request is not only untimely,' but also
presents no matters which warrant altering our prior deter-
mination herein.
As a majority of the eligible employees voting cast their
ballots for the Petitioner, we shall certify that labor organ-
ization as the exclusive bargaining representative of all the
employees in the appropriate unit.
[The Board certified Los Angeles Printing Pressmen &
Assistants ' Union No . 78, International Printing Pressmen &
Assistants ' Union of North America, AFL, as-the designated
collective - bargaining representative of all letterpressmen and
assistants at the Employer ' s Los Angeles , California , plant,
excluding all other employees , guards , and supervisors as
defined in the Act.]
Chairman Herzog and Member Murdock took no part in the
consideration of the above Supplemental Decision and Certi-
fication of Representatives.
4 Westinghouse Electric Corporation, 91 NLRB 955, 963; N.L. R. B. v. A. J. Tower Company,
329 U . S. 324.
5 William R. Whittaker Co., Ltd., 94 NLRB 1151,1152.
PRYNE & COMPANY, INC. and UNITED ELECTRICAL, RADIO
& MACHINE WORKERS OF AMERICA, (UE) LOCAL 1421.
Case No. 21 -CA-1146. June 9, 1953
DECISION AND ORDER
On May 9, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above - entitled proceeding , finding
that Respondent had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed
exceptions and a supporting brief. No exceptions were filed by
the Intervenor Union' or by the General Counsel.
1 The International Brotherhood of Electrical Workers, Local 1710, AFL, intervened at the
hearing.
105 NLRB No. 51.