Lee Office Equipment

National Labor Relations Board - Board Decisions

Nov 8, 1976

226 N.L.R.B. 826 (N.L.R.B. 1976)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lee Office Equipment and General Sales Drivers, De-
livery Drivers and Helpers Local Union No. 14, In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 31-
CA-5684
November 8, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On May 27, 1976, Administrative Law Judge Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief. Respondent filed cross-
exceptions, a supporting brief,' and a brief in opposi-
tion to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order except as modified
herein.
Although the Administrative Law Judge found
that Respondent unlawfully refused to bargain with-
in the certification year and recommended that Re-
spondent be ordered to bargain, he stated that a de-
certification petition filed by the employees is to be
considered timely even if it is filed before Respon-
dent's unlawful labor practice is remedied. We agree
with his finding that in all the circumstances herein
the certification year need not be extended for a spe-
cific period of time, but we reject his recommenda-
tion that a decertification petition is to be considered
timely even if filed before Respondent has complied
with the Order to bargain issued herein. Respondent
unlawfully discontinued bargaining with the Union.
That unfair labor practice must be remedied if the
employees' right to engage in Section 7 activities is to
be guaranteed. If a filing of a petition were permitted
before Respondent remedied its refusal to bargain,
our remedy would be wholly ineffective. Accord-
ingly, we shall order Respondent to take the affirma-
tive action of bargaining in good faith upon request
of the Union and that the Board's usual rules and
policies shall apply to such petitions as may be filed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Lee
Office Equipment, Las Vegas, Nevada, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Delete-the second sentence from paragraph 2(a)
of the recommended Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 Respondent ' s request for oral argument is hereby denied as, in our
opinion, the record, including the exceptions and briefs, adequately presents
the issues and positions of the parties
2 We adopt the Administrative Law Judge' s conclusion that Respondent
has failed to establish that the certified representative engages in discrimina-
tory practices against women , blacks , or other minorities whom it represents
without passing on whether the existence of such practices could constitute
a defense to the refusal -to-bargain allegation involved in this proceeding
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to meet, negotiate, and
bargain in good faith with General Sales Driv-
ers, Delivery Drivers and Helpers Local Union
No. 14, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representa-
tive of our employees in the following bargain-
ing unit:
All driver-warehousemen employed by us at
our facilities located at 330 East Charleston
Boulevard and 950 East Sahara Avenue, Las
Vegas, Nevada, excluding all other employ-
ees, including office clerical employees, sales
employees, guards, watchmen and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed by Section
7 of the Act.
WE WILL, upon request, meet , negotiate, and
bargain in good faith with said Union, as the
exclusive bargaining representative of our em-
ployees in that unit.
LEE OFFICE EQUIPMENT
226 NLRB No. 129
LEE OFFICE EQUIPMENT
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Las Vegas, Nevada, on February 12, 13,
and 18, 1976. The charge was filed on October 28, 1975, by
General Sales Drivers, Delivery Drivers and Helpers Local
Union No. 14, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union. The complaint issued on Novem-
ber 24, 1975, alleging that Lee Office Equipment, herein
called Respondent, violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to meet and negotiate with the
Union which had within the previous year been certified
by the Board as the collective-bargaining representative of
certain of Respondent's employees, and, if so:
(a) Whether Respondent was justified in its refusal to
bargain on the ground that the Union discriminated
against blacks, women, and Spanish-surnamed individuals,
or
(b) Whether Respondent was justified in its refusal to
bargain by reason of the Union's suggestion to employees
that they engage in violence, the Union's threat of violence
directed to an employee, or the Union's loss of employee
support
2. Whether Respondent refused to bargain with the
Union by conditioning negotiations on the Union's giving
an equal voice at the bargaining table to employees who
were not designated as the exclusive collective-bargaining
representative.
3. Whether Respondent undermined the Union and by-
passed it as the exclusive bargaining representative by soli-
citing employee sentiment concerning their support of the
Union.
4. Whether a bargaining order is appropriate.
All parties were given full opportunity to participate, to
produce relevant evidence , to examine and cross -examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
On the entire record I of the case and from my observa-
i The transcript of the first 2 days of hearing is of extremely poor quality
The General Counsel has filed a motion to correct the transcript which
requests that 185 separate changes be made The motion has been marked
G C. Exh 8 and has been added to the original General Counsel exhibit file
The accuracy of the changes is not questioned and the motion is granted In
its brief, Respondent argues that the inaccuracies and misquotations are so
great as to preclude any type of motion for correction of transcript The
brief states " Respondent asserts that the state of the transcript is a denial of
its right to a fair record and that it is a further reason for a dismissal of the
charge of [sic ] a new hearing " While I agree with Respondent that the
transcript of the first 2 days of the hearing leaves much to be desired. I do
not believe that a dismissal of the complaint or a hearing de novo is warrant-
ed The reporter's primary difficulty was with accurately recording counsel's
arguments and my rulings with regard to matters of law Those arguments
827
tlon of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Nevada corporation with its office and
principal place of business in Las Vegas, Nevada, is in the
business of selling office supplies and furniture directly to
retail customers. Respondent annually purchases and re-
ceives goods valued in excess of $50,000 directly from sup-
pliers located outside of Nevada and annually derives gross
revenues in excess of $500,000. The complaint alleges, the
answer admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
[I. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. Background
Respondent employes a number of drivers and ware-
housemen 2 On February 18, 1975, the Union filed a peti-
tion for an election among Respondent's employees in that
unit. The election was conducted by Board agents on April
11, 1975. The tally of ballots showed that of approximately
10 eligible voters 6 votes were cast for the Union, I vote
was cast against the Union, and there was I challenged
ballot. On April 21, 1975, the Union was certified as the
exclusive representative of Respondent's employees in the
unit in question. Respondent and the Union met to negoti-
ate on May 30, 1975. They met again on three occasions in
July and two in August 1975. The last meeting was on
September 30, 1975 By that time Respondent and the
Union had reached agreement on some issues, but no final
agreement had been achieved There have been no meet-
ings since that date.
have to a large degree been repeated in the briefs and they, as well as my
legal conclusions , can be fully evaluated on review The exhibits contain
documentary materials that are not affected by the poor transcript With
regard to the testimony of witnesses . the transcript was either accurate or
sufficiently intelligible that it was susceptible to correction through a motion
to amend The General Counsel's extensive motion to correct the transcript
has been granted and Respondent has not seen fit to file such a motion in its
own behalf In sum, I find that the testimony and therefore the underlying
facts relating to the case were reported with sufficient accuracy to allow full
and reasoned findings for a decision
2 The complaint alleges , the answer admits , and I find that the following
bargaining unit (which is the unit involved in this proceeding) is appropriate
for the purpose of collective bargaining within the meaning of Sec 9(b) of
the Act
All driver-warehousemen employed by Respondent at its facilities lo-
cated at 330 East Charleston Boulevard and 950 East Sahara Avenue
Las Vegas, Nevada, excluding all other employees, including office
clerical employees, sales employees, guards, watchmen and supervisors
as defined in the Act
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Dambro's meeting with employees
Robert Dambro is the president and a business agent of
the Union. He was involved in the Union's organizational
campaign with Respondent's employees and was primarily
responsible for dealing with the employees. In June or July
1974 he conducted a meeting at the union hall that was
attended by seven of Respondent's employees. Dambro
told the employees that there was an impasse between the
Union and Respondent, that Respondent was stalling, and
that there was nothing the Union could do. Dambro also
told them that: "It had been known in his last 20 years of
experience in representation-representing the Union in
different parts of the country that sometimes to make peo-
ple come around we can fix their cars up, slash some tires,
pull wires, break windows and the like." 3
conversation with Woolf. Dambro said that the letter
would not do Woolf any good and he asked Woolf to write
another letter rescinding it. Woolf replied that it was not
his decision to make and that he would confer with the
other employees. Dambro told Woolf that if they did not
change their minds and management found out what was
going on they would be walking the streets. Dambro also
told Woolf, "Make up your mind. Get these guys going.
Let's get this thing on the road or I'll have your ass."
A negotiation session had been scheduled for September
30, 1975. On September 29, 1975, Dambro called Woolf on
the telephone. Dambro told Woolf that he wanted the em-
ployees to forget the letter and get back with the Union so
that the Union could represent them. Dambro also asked
Woolf to get the other employees to change their minds.
Dambro said that if Woolf or the other employees did not
change their minds Dambro would have his "ass." 5
3. The letters of resignation and Dambro's response
On some undisclosed date Woolf wrote the Union say-
ing that he and other employees did not want the Union to
represent then t.' On August 15, 1975, Thomas W. Collier,
one of the employees in the bargaining unit, wrote to the
Union as follows:
This is to inform Teamsters Local No. 14 that I do not
desire to be represented in anyway by this union. I will
represent myself. I do not believe that the union can
accomplish anything for me through an outside union
representative that I do not already have in my right
to deal directly with the company where I am em-
ployed.
Collier told Respondent's president, Jerry Lee, about that
letter.
On September 16, 1975, Leslie Lentz, Daniel Cash, and
Gordon Woolf, all of whom were employees in the bar-
gaining unit, signed and sent to the Union a letter which
read as follows:
Effective this date, we subject employees, wish to
resign membership in Teamsters Local 14.
Also, please forward our certification/registration
papers we filled out in early February, 1975, to this
store.
We wish to no longer be represented by your local!
A copy of that letter was given to Respondent. Within a
week after the September 16, 1975, letter, Dambro had a
3 These findings are based on the credited testimony of Gordon Woolf,
one of Respondent 's employees who was present at that meeting Dambro,
in his testimony, denied making any such statements Neither the General
Counsel nor Respondent called any other witnesses to testify concerning
this incident As between Woolf and Dambro I unhesitatingly credit Woolf
Woolf, while he was on the stand , impressed me as a candid conscientious
witness with a good memory Dambro, on the other hand, in his testimony,
was often evasive His demeanor on the stand was such as to inspire a
complete lack of confidence in his veracity
Woolf also creditably testified that he was surprised by Dambro's state-
ments and in his opinion the other employees were equally surprised
This finding is based on the credited testimony of Woolf The letter was
not offered in evidence
4. The September 30, 1975, meeting
Sometime before the negotiating meeting that was sched-
uled for September 30, 1975, Woolf told Respondent's
president, Jerry Lee, that the employees did not want the
Union to represent them. Lee replied that if Woolf and the
other employees wanted to watch a meeting he would
make arrangements for them to do so. He told Woolf that
the employees could take time off without pay to watch the
negotiations.
About 10 minutes before the September 30, 1975, meet-
ing was scheduled to begin, Woolf together with employees
Cash, Lentz, and Clifton Gee 6 were near the conference
room where the meeting was to take place. They spoke to
Raymond Bohart, the managing director of the Federated
Employers of Nevada, Inc. Bohart represented Respondent
at negotiations. Woolf, speaking for the three employees,
said that he did not want the meeting to go on or the
Union to represent them. Bohart told Woolf that he had no
alternative but to go into the meeting but that he would
attempt to let the employees express their views at the
meeting. They all went into the conference room.
At the September 30, 1975, meeting the Union was rep-
resented by Dambro and by Union Secretary-Treasurer
Delmar Seleska. Bohart and Respondent President Lee
were present for Respondent. Woolf, Cash, Lentz, and Gee
were also there. Seleska was the chief spokesman for the
Union and Bohart was chief spokesman for Respondent.
Bohart called the meeting to order and said that the em-
ployees who worked for Respondent were there to observe
the negotiations and that the employees had asked for an
opportunity to speak. Bohart then gave a brief outline of
what had transpired so far in the negotiations and asked to
hear from the employees. Seleska said that the employees
were there to see what was going on but that if they had
5 These findings are based on the credited testimony of Woolf Dambro,
in his testimony, denied saying that he would have Woolf 's "ass" Dambro
admitted some aspects of the conversations , denied other parts, and claimed
that other remarks were also made I credit Woolfs version of the conversa-
tions and I do not credit Dambro's testimony concerning conversations with
Woolf that are inconsistent with Woolfs testimony
6 Woolf, Cash, and Lentz were employees in the bargaining unit Gee had
worked for Respondent but at that time he was not on Respondent's payroll
because of a medical problem
LEE OFFICE EQUIPMENT 829
anything to say there should be a break or a caucus. Bohart
repeated that he would like to hear from the employees and
Seleska answered that the employees were not there to
speak or to take part in the negotiations. Seleska then
brought up some contract items that had not been re-
solved. Bohart again said he would like to hear what the
employees had to say and Seleska repeated that they were
not there to speak. Woolf made a comment to Seleska with
regard to being allowed to speak and Seleska told him to
speak when he was spoken to and that Seleska would tell
him when to speak. Seleska told Bohart that they should
get on with the items that needed to be resolved and Bo-
hart repeated that he wanted to hear from the employees.
Seleska said that he was there to speak on their behalf.
Bohart stated that he was not refusing to negotiate but he
just wanted to hear from the employees. Bohart also said
that he would not continue unless the employees could be
heard from. Seleska replied that there was no sense in stay-
ing there if Respondent was not going to negotiate and he
started to leave the table. Woolf looked at Dambro and
said, "Now, you son-of-a-bitch, don't you call me at home
anymore." Seleska, who was standing at the time, told
Woolf not to talk to Dambro that way. Woolf stood up and
said that he would talk any way he felt like. The two men
were about 2 feet apart and both had raised their voices.
Dambro stepped between them and Bohart asked Woolf to
be seated. Seleska and Dambro left the room.7
The complaint alleges that Respondent refused to bar-
gain with the Union commencing on or about September
30, 1975. On September 30, 1975, Respondent employed
four employees in the bargaining unit. They were Woolf,
Cash, Lentz, and Collier. All four had sent letters to the
Union asking that the Union not represent them. At the
time of the hearing all four of those employees were still
working for Respondent but one had been placed in a dif-
ferent bargaining unit. In addition a fifth employee had
been hired.
sented by Teamsters Local 14 for the purposes of col-
lective bargaining. This position was brought to my
attention vividly during our meeting of September 30
in my office at which time concerned employees at-
tended a regularly scheduled negotiation session and
were denied by the Local Union an opportunity at the
bargaining table to speak. Prior to this September 30
meeting, I was approached by a spokesman for these
employees who indicated to me on behalf of the em-
ployees that they did not desire the negotiations to
continue since they had withdrawn their support and
authorization to the Local Union. Although such a
request did not alter the obligation under the Certifi-
cation dated April 21, 1975, in N.L.R.B. Case No. 31-
RC-3112, I did attempt, as you are aware, to at least
hear the employees out during the course of the meet-
ing. However, during the meeting when you and Mr.
Dambro of the Local Union refused to proceed with
the negotiations upon my insistence that we hear from
the employees and did, in fact, walk out of the negoti-
ation meeting leaving Management representatives
and concerned employees at the bargaining table, it
became clear at that point that the Local Union no
longer had the authority in this matter to act as the
bargaining representative. Therefore, in view of the
posture taken by the Union in walking out of this
meeting, I must respectfully decline your request to
resume negotiations in this matter.
Seleska, once again, wrote to Bohart on October 20,
1975, requesting the immediate commencement of negotia-
tions. Bohart replied by letter dated October 24, 1975, in
which he stated that Respondent's position was fully stated
in the October 13, 1975, letter and had remained un-
changed.
On October 28, 1975, the Union filed the charge in the
instant case.
5. The subsequent correspondence
On October 6, 1975, Seleska, on behalf of the Union,
wrote to Respondent's representative, Bohart, requesting
the immediate commencement of negotiations. Bohart re-
sponded by letter dated October 13, 1975, as follows:
In response to your October 6, 1975, letter in which
you requested immediate commencement of negotia-
tions with Lee Office Equipment, we have reviewed
this matter very carefully with respect to determining
an appropriate course of action.
As you are aware, those employees employed by Lee
Office Equipment have orally and in writing indicated
to the Local Union their desire to no longer be repre-
7 These findings are based on the credited testimony of Lee who had a
detailed recollection of what occurred His testimony was corroborated in
substantial part by the testimony of Woolf and Bohart The substance of
that testimony was also corroborated in large measure by the testimony of
Seleska and Dambro . I believe that Seleska was somewhat evasive and less
than candid in his version of what occurred at that meeting To the extent
that the testimony of Seleska and Dambro differs from that of Lee, I credit
Lee
B. The Union's Membership and Officers-Data Related to
Blacks, Women, and Spanish-Surnamed Individuals
The Union's office is in Las Vegas, Clark County, Ne-
vada. Data compiled by the comprehensive health plan-
ning agency of Clark County, Nevada, which agency is
located in Las Vegas, Nevada, establishes that the total
population of Clark County, Nevada, was 350,520 of
whom 37,856 (10.8 percent of the total population) were
black and 19,279 (5.5 percent of the total) were Spanish-
Americans.8 Other data compiled by the same agency es-
tablishes that approximately 50 percent of the total popula-
tion were female.
The Union's current membership consists of between
1,050 and 1,100 members The Union maintains between
6,000 and 7,000 ledger cards. The ledger cards indicate the
current members and also people who were members at
one time but became inactive for such reasons as leaving
the area or going onto a withdrawal card. In addition, the
s The chart from which these figures were taken is dated 1974 and states,
"Data was gathered and projected from the Economic Opportunity Board
of Clark County, the Nevada State Employment Dept, Clark County
School District, The Indian Center, the Nevada Association of Latin Ameri-
cans and the 1970 census "
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union records contain about 8,000 applications for mem-
bership. Some individuals apply for membership when they
are sent out to work by the Union. Others who have a job
come to the Union and fill out an application card. Seles-
ka, who has been the Union's secretary-treasurer since
1968, testified that he knows of no situation where
anyone's application for membership has been rejected.
There is no evidence in the record to dispute that assertion
and I credit his testimony in that regard. There are more
application cards than ledger cards because some individ-
uals after they sign an application do not get the job they
sought or they leave town. In such situations , ledger cards
are not opened for those individuals but their application
cards are retained. The application and ledger cards do not
indicate an individual's race nor do they show the
individual's sex or national origin except to the extent that
the name itself might indicate such matters.
There are about 65 females and about 40 blacks who are
members of the Union.' There were between 1,050 and
1,100 active members in the Union. Using the figure of
1,075 members of the Union, it appears that about 6 per-
cent of the Union's membership were female and about 3.7
percent were blacks. That compares with statistics in Clark
County, Nevada, generally, which show that of the total
population about 50 percent are female and 10.8 percent
are black.10 The only evidence in the record concerning the
number of union members who have Spanish surnames is
the testimony of Dambro that at least 20 Spanish-sur-
named members of the Union i' are under his jurisdiction
as business agent. There are three business agents in all. If
it is assumed that the other two business agents had equal
numbers under their jurisdiction, there would be in all
about 60 Spanish-surnamed individuals who were union
members. That would be 5.6 percent of the total union
membership. Five and one-half percent of the total popula-
tion of Clark County were Spanish-surnamed individuals.
If that assumption of 60 Spanish-surnamed individuals is
used, then it would appear that Spanish-surnamed individ-
uals are not underrepresented in terms of union member-
ship with relation to the total population. If the assumption
is not used, then there is a failure of proof in the record to
establish whether or not Spanish-surnamed individuals are
underrepresented. In either case, there is no statistical base
for mounting an argument that the Union discriminates in
its membership policies against Spanish-surnamed individ-
uals. In the absence of any other evidence of such discrimi-
nation, the question of discrimination in membership
against Spanish-surnamed individuals need not be consid-
ered further.
The Union does not have an apprenticeship program.
9 Dambro testified without contradiction that there were about 65 or
more women and at least 40 blacks Though Dambro did qualify the num-
bers he gave by using such terms as "at least" and "or more." he also
averred that his figures were "close to it" and he couldn't give an exact
figure I find that the above numbers do indicate the order of magnitude of
individuals in those categories
10 It is noted that it has not been established that the Union's membership
is drawn from the Clark County area or that the Clark County area coin-
cides with the fob market in which the Union represents employees
"Initially Dambro testified that the number was at least 15 or 20 He
then averred that the number was at least 20
Seleska creditably testified that he does not know of any
action of the executive board or the officers to recruit
blacks for membership.
The Union has seven officers. They are secretary-trea-
surer, president, vice president, recording secretary, and
three trustees. The Union's executive board is comprised of
those seven officers. All but the three trustees are full-time
paid union officials. The trustees are union members who
are employed by employers having collective-bargaining
relations with the Union. Six of the seven officers were
nominated and elected by the union membership at special
meetings. The seventh, a trustee, was appointed by the ex-
ecutive board to fill a vacancy. Seleska creditably testified
that since he became secretary-treasurer in 1968 there has
only been one woman and one black on the executive
board. From 1968 to 1972 Darlene Sharp was recording
secretary and as such she was on the executive board. A
black, Levi Byrd, is presently on the executive board. Seles-
ka creditably testified that he did not know of any individ-
ual with a Spanish surname who had been on the executive
board.
The Union employs three business agents. They are ap-
pointed by the secretary-treasurer. Seleska creditably testi-
fied that since he assumed office in 1968 there have been
no blacks, women, or Mexican-Americans as business
agents. Seleska also creditably testified that he selects busi-
ness agents on the basis of ability. Seleska also creditably
averred that the Union has 35 to 40job stewards of whom
4 or 5 are black and about 5 are women. He averred that he
was not sure with regard to Spanish surnames.
C. Violence Against Other Employers
About 3 years before the date of the instant hearing, the
Union was organizing another employer named Telly
Meats. During that organizational drive, vehicle tires were
flattened, sugar was put in gas tanks, and damage was
done to vehicles.
In March 1973, the Union engaged in a 6-week strike
against employers in the alcoholic beverage industry. Dur-
ing the strike, one of the employers, DeLucca Importing
Company, suffered major vandalism. Windows were bro-
ken, display racks were destroyed, wallpaper was torn from
the walls, desk tops were ripped off, calculators were de-
stroyed, and the premises were completely gutted. Jerry
Lee, president of Respondent, was aware of the destruction
that took place because he was called in to replace the
furniture. Another struck employer, Costello Beverage, suf-
fered the destruction of its front windows and an attempt-
ed fire bombing. A bullet was fired through the front door
of the office building occupied by Bohart, the representa-
tive of the struck employers. At another struck employer,
Costello, there were some fire bombings and the brakes of
a rail car were released so that the car rolled away. The
front door of another struck employer, McKesson Liquor,
was destroyed. At still another struck employer, Las Vegas
Distributing, vehicles were followed and harassed and
there was blocking of access to the company plant. Struck
employer Bonanza Beverage and all the other struck com-
panies suffered flattened tires and general harassment of
individuals who were trying to make deliveries.
LEE OFFICE EQUIPMENT 831
In August 1973, the Union engaged in a 2-month strike
against another employer, Preferred Sales. During the
strike, company vehicles were damaged, the tires on the car
of an employee who came to work were slashed, and three
company cars had their engines destroyed after "coke" syr-
up had been poured into the gasoline tanks Subsequently
two striking employees were convicted of damaging a vehi-
cle. Those employees were not shop stewards, business
agents, or officers of the Umon.
While denying all responsibility for any violence, Dam-
bro acknowledged that during the alcoholic beverage in-
dustry strike he drove by DeLucca Importing and saw bro-
ken windows. He also acknowledged that while driving by
Bonanza Beverage he saw a few flat tires. While driving by
on a third occasion, he saw some fire trucks at a struck
plant.
D. Analysis and Conclusions
1. The legal framework
Respondent refused to negotiate or bargain with the
Union at the meeting of September 30, 1975, and thereafter
has refused to meet with the Union. That refusal to bargain
cannot be justified by Respondent's insistence that the em-
ployees be heard from before bargaining commenced. Re-
spondent had no legal right to insist, as a condition to
future bargaining, that the employees have such an oppor-
tunity. If there were any doubt as to Respondent's inten-
tion with regard to bargaining, it was removed by the letter
of October 13, 1975, from Respondent's representative, Bo-
hart, to the Union which stated, "I must respectfully de-
cline your request to resume negotiations in this matter "
The Union was certified as the exclusive representative
of Respondent's employees in the unit in question on April
21, 1975. Respondent's refusal to bargain began on Sep-
tember 30, 1975, which was 5 months and 9 days after the
certification. On September 30, 1975, there were four em-
ployees in the bargaining unit, all of whom had notified the
Union in writing that they did not want the Union to rep-
resent them. However, an employer may notjustify a refus-
al to bargain within the certification year (1 year from the
date of certification) on the ground that its employees no
longer desire representation. In Ray Brooks v N L R B,
348 U.S. 96 (1954), the Supreme Court approved the
Board's policy that a certification must be honored for a
reasonable period, usually 1 year, in the absence of "un-
usual circumstances." 12 In that case, the Union was certi-
fied after it won by an eight-to-five vote A week after the
election, and a day before the certification, 9 of the 13
employees signed a letter to the Employer stating that they
did not want representation by the Union. The Employer
refused to bargain with the Union, and the Supreme Court
held that the refusal violated the Act. In Holly Farms Poul-
try Industries, Inc., 189 NLRB 663 (1971), enfd. 460 F.2d
312 (C.A. 4, 1972), the Board cited Ray Brooks v. N. L.R.B,
12 Unusual circumstances were found in at least three situations, such as
dissolution or defunctness of the union , schism , with substantially all the
members and officers of the certified union transferring their affiliation to a
new local or international , and radical fluctuation to unit size within a short
time
supra, and held: "It is thus well settled that absent `special
circumstances,' which clearly are not present here, a
union's continued majority status is conclusively presumed
to exist for 1 year following certification." In Cocker Saw
Company, Inc, 186 NLRB 893 (1970), enfd. 446 F.2d 870
(C.A. 2, 1971), the Board adopted the Decision of a Trial
Examiner which held in part:
Many cases, Ray Brooks among them, present the situ-
ation in which employees quickly repented of their
choice of bargaining representative. The Board's long-
standing position, sustained by the Supreme Court in
Ray Brooks, is that such defections cannot unseat a
bargaining representative within a year of its certifica-
tion, because the need for stability in industrial rela-
tions outweighs for that period the countervailing
principle of self-determination.
Thus, I find that the Union's loss of support among the
employees it represented was not such an "unusual circum-
stance" as to justify Respondent's refusal to bargain within
the certification year.
There remains to be considered, however, whether "un-
usual circumstances" justifying a refusal to bargain within
the certification year exist because of racial or other dis-
crimination practiced by the Union; violent activity by the
Union; or misconduct by the Union directed against Re-
spondent or Respondent's employees. Consideration must
also be given to whether any of such matters justify the
withholding of a bargaining order.
2. The issue of racial and other discrimination
Respondent asserts as an affirmative defense that the
Union discriminates against blacks, women, and Spanish-
surnamed individuals, and argues that a bargaining order
would be inappropriate. Respondent has the burden of es-
tablishing its affirmative defense. No evidence was intro-
duced on the subject other than statistics relating to the
numbers in those categories in Clark County and the num-
bers in those categones-in the Union. As is set forth above
there is no statistical base established by the record to
mount an argument that the Union discriminates against
Spanish-surnamed individuals with regard to its member-
ship. Respondent did establish that 10.8 percent of the
population of Clark County was black as compared to
about 3.7 percent of the union membership which was
black; that about 50 percent of the total population was
female as compared to about 6 percent of the Union's
membership which was female; that of the 7 officers of the
Union (which 7 officers comprise the executive board), at
least since 1968, there was only I black executive board
member (which person is presently on the executive board)
and only I female (which person was on the executive
board from 1968 to 1972); that there are 3 union business
agents and that at least since 1968 there have been no
blacks, women, or Mexican-Amencans as business agents;
and that of the 35 to 40 job stewards there are about 4 or 5
who are black and about 5 who are female.
In Mansion House Center Management Corporation, 190
NLRB 437 (1971), enfd. in part and remanded in part 473
F.2d 471 (C.A. 8, 1973), the Board ordered an employer to
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain after rejecting an offer of proof which turned on
the asserted fact of racial imbalance in the union's mem-
bership. The Board noted that the offer of proof did not
allege that the union had denied membership to any appli-
cant on the grounds of race. The Eighth Circuit Court of
Appeals denied enforcement of the Board's Order and re-
manded the case to the Board to allow the company to give
further proof. The court held that "constitutional limita-
tions on the Board's process require recognition of a charge
of racial discrimination as an appropriate ground of in-
quiry where a union's representative capacity is ques-
tioned." The court also held that the Board erred in testing
the discrimination charge solely on the question whether
any nonwhites had been refused membership, and found
that admission policies of the union and all other relevant
considerations deserved full scrutiny. The court also stated
at 474:
On the other hand, it should be clear that a refusal to
bargain based on a union's alleged racial discrimina-
tion must not rest on pretextual grounds. The law in
this area needs to be more fully developed by the
Board. Prophylactic procedures may be needed by the
Board to deter pretextual refusal to bargain with an
authorized unit on the alleged grounds the union is
practicing discrimination in its membership. We leave
this for the Board to work out.
In United States v. Ironworkers Local 86, 443 F.2d 544, 551
(1971), the Ninth Circuit Court of Appeals gave guidance
in the use of statistical evidence for proving violations of
the Civil Rights Act of 1964. That court held that by show-
ing a small black union membership in a demographic area
containing a substantial number of black workers a plain-
tiff raised an inference that the racial imbalance was a re-
sult of discrimination and the burden of going forward
with the evidence shifted to the accused. The court went on
to point out: "as in the case with all statistics, their use is
conditioned by the existence of proper supportive facts and
the absence of variables which would undermine the rea-
sonableness of the inference of discrimination which is
drawn." In that case there were specific instances of dis-
crimination proved in addition to the statistical evidence.
In Bekins Moving and Storage Co. of Florida, Inc, 211
NLRB 138 (1974), a majority of the Board held:
[I]t seems clear to us that this Board cannot constitu-
tionally certify a labor organization which is shown
... to be engaging in practices such as excluding per-
sons from membership on the basis of race, alienage,
or national origin, which, if encouraged by a certifica-
tion, would put us in the constitutionally indefensible
position of knowingly furthering those practices which
are prohibited by both constitutional and statutory
provision.
The Board has heard oral argument and is in the process
of considering a number of cases involving Mansion House
and Bekins issues.13 Careful consideration must be given
13 Trumbull Asphalt Co, Inc, Case 25-RC-5719, Bell & Howell Company,
220 NLRB 881 (1975), Handy Andy, Inc, 228 No 59 (1977), and Murcel
Manufacturing Corp, Cases 10-CA-10122, 10-CA-10152, 10-RC-9502
where it is alleged that the public policies set forth in one
statute nullify statutory rights granted by another law.
More definite guidelines will no doubt be forthcoming in
the future. However, even if the Board does ultimately hold
that statistical proof of an imbalance in the racial makeup
of a union's membership is sufficient per se to establish a
prima facie case of discrimination and that such proof
shifts the burden of going forward to the anion, I do not
believe that the facts in this case warrant a finding that the
Union discriminates against blacks or other groups.14
No inference can be drawn from the statistics with re-
gard to blacks, women, and Spanish-surnamed individuals
who are or who are not officers, business agents, or shop
stewards of the Union. The numbers are simply too small
to make accurate inferences based on statistics. In addi-
tion, one of the seven members of the executive board is a
black, and from 1968 to 1972 there was one woman on the
executive board. With only three business agents, there is
no basis for making a statistical analysis. ,With regard to
the shop stewards, there were a number of blacks and
women.
A major statistical imbalance is shown with regard to
blacks and women in the Union's membership and the
numbers are large enough to be meaningful."
The Union represents employees working in industries in
the jurisdiction of the Union and these employees are hired
by the employers and not the Union. The Union does not
have an apprenticeship program so it does not feed em-
ployees into the industry through that means. Some indi-
viduals apply for membership in the Union when they are
referred to work by the Union, but others apply for mem-
bership when they find a job on their own. There is no
evidence that the Union runs an exclusive hiring hall under
which all employees enter the industry through referral
from the hall. Thus, the Union does not control all the
hiring. Indeed, the employees of Respondent were all em-
ployed before the Union began its organizational drive at
Respondent's premises. 16
In Grants Furniture Plaza, Inc. of West Palm Beach, Fla.,
213 NLRB 410 (1974), the Board considered the impact of
proffered evidence in a situation much like the instant case,
holding:
Nor do we find sufficient to warrant a hearing the
evidence offered in the form of statistics purporting to
show that the labor organization seeking certification
here has a membership in which certain minority
groups appear in numbers less than the population ra-
tio of such minorities to the total population in the
area in which this labor organization operates. No evi-
dence was proffered here to show that the Petitioner,
through a hiring hall or other means, exercises any
control whatsoever over the racial, sexual or ethnic
14Cf Hawkins Construction Company, 210 NLRB 965 (1974)
15 It is noted that the statistics on the population of Clark County are
keyed to the general population rather than to the numbers of blacks, wom-
en, and Spanish-speaking individuals in the work force
16 Respondent , who is claiming that the Union discriminates based on a
statistical showing , employed only four employees in the bargaining unit at
the date it refused to bargain and all of those employees had names indicat-
ing that they were male See Bell & Howell Company, 213 NLRB 407 (1974)
LEE OFFICE EQUIPMENT 833
composition of those who enter the work force and,
thus, those who are or may become its members. In
the absence of such evidence we must assume that the
employers in the area exercise the true control over the
selection of the work forces, and that only after the
employer selection process has been effective do em-
ployees normally either voluntarily seek membership
in the union or, in some instances , do so as required
under the terms of a valid union-security agreement.
Without passing, therefore, in this case, upon the
appropriate weight to be given statistical data as to the
racial or ethnic composition of the Union's member-
ship in a setting wherein evidence is offered to show
either that the Union controls or substantially influ-
ences access to employment, or deliberately restricts
access to its own membership rolls, we conclude that it
would be improper to draw any inferences of union
propensity for discrimination on the sole basis of such
statistical evidence in the instant setting . We therefore
conclude in agreement with the Regional Director that
this statistical evidence standing alone is insufficient
to warrant the holding of a hearing.
Accordingly, as we find the evidence insufficient to
disqualify the Petitioner from receiving a Board certi-
fication, and as the Petitioner has received a majority
of the valid votes cast, we shall certify the Petitioner as
the collective-bargaining representative of the employ-
ees in the unit found appropriate herein.
I believe that the principles set forth in the Grants Furni-
ture Plaza, Inc., case are controlling in the instant case. In
addition , in the case in issue , there is credible evidence by
Seleska, who was secretary-treasurer of the Union since
1968, that he knows of no situation where anyone's appli-
cation for membership had been rejected. There is nothing
in the record to suggest that the Union is selective in hand-
ing out union "books" or that such "books" are the key to
obtaining employment. The Union does not maintain an
apprenticeship program and therefore does not funnel indi-
viduals into the job market through that means. In short,
the evidence in the record does not establish that the
Union discriminates against blacks or others.
3. The violence against other employers
As is set forth in detail above, a number of incidents of
violence occurred while strikes or an organizational drive
by the Union were taking place. The bulk of that violence
occurred in 1973 and there is no indication of any violence
occurring within the last 2 years. Any complaint alleging
such violence would have been long barred by the 6-month
statute of limitation contained in Section 10(b) of the Act.
The last such incident took place more than 6 months be-
fore the charge in the instant case.
There is no evidence in the record to establish that
agents of the Union engaged in the violence or that the
Union was responsible for such violence. In June or July
1975, Union President and Business Agent Dambro did
talk to employees of Respondent about the efficacy of van-
dalism in bringing an employer around, but that remark
was made years after the violent incidents described above
and there is no evidence in the record that Respondent's
employees or the Union engaged in any vandalism directed
against Respondent. I do not believe that Dambro's re-
marks can be taken as an admission that the Union was
responsible for the past violence. While there is much to
raise suspicion, there is an absence of proof to establish
that the Union engaged in acts of violence against other
employers."
4. Dambro's remarks to employees and to Woolf
In June or July 1974, after telling seven of Respondent's
employees that there was an impasse between the Union
and Respondent, that Respondent was stalling, and that
there was nothing the Union could do, Dambro told the
employees that: "It had been known in his last 20 years of
experience in representation-representing the Union in
different parts of the country that sometimes to make peo-
ple come around we can fix their cars up, slash some tires,
pull wires, break windows and the like." Dambro's remark
constituted a direct unequivocal inducement of the em-
ployees to engage in acts of vandalism against Respondent.
On September 16, 1975, Woolf and two other employees
wrote to the Union saying that they no longer wanted the
Union to represent them. Within a week after that date,
Union President and Business Agent Dambro told Woolf
to get the employees to change their mind and said that if
Woolf did not do so, he (Dambro) would have Woolf's
"ass." On September 29, 1975, Dambro again said that if
Woolf did not get the employees to change their minds he
(Dambro) would have Woolf' s "ass." Viewed in the light of
" Even if such responsibility had been established , there would be a seri-
ous question whether Respondent could rely on the Union's pre-10 (b) con-
duct as a defense to a refusal to bargain Cf North Bros Ford, Inc, 220
NLRB 1021 (1975), in which the Board held
Section 10(b) of the Act confines the issuance of unfair labor practice
complaints to events occurring during the 6 months immediately pre-
ceding the filing of a charge and has been interpreted by the Supreme
Court to bar finding any unfair labor practice , even though committed
within that period , which turns on whether or not events outside that
period violated the Act Bryan Manufacturing Co 3 The Court, holding
that maintenance and enforcement of a contract more than 6 months
after recognition of a minority union did not violate the Act, relied in
part on the legislative history indicating that Congress specifically in-
tended Section l0(b) to apply to agreements with minority unions in
order to stabilize bargaining relations Noting that labor legislation tra-
ditionally entails compromise, the Court observed
that the interest in employee freedom of choice is one of those given
large recognition by the Act as amended But neither can one disre-
gard the interest in "industrial peace which it is the overall purpose
of the Act to secure " 4
The Board, in light of Bryan, has since held that Section I0(b) is appli-
cable to a refusal - to-bargain defense that the bargaining relation was
unlawfully established 5
3 Local Lodge No 1424, IAM, AFL-CID [Bryan Manufacturing Co I
v NLRB , 362 U S 411 (1960)
4 Id at 428, citations omitted
5 Barrington Plaza and Tragnrew , inc, 185 NLRB 962 (1970), en-
forcement denied on other grounds sub nom Tragnrew , Inc, and Con-
solidated Hotels of California v N L R B, 470 F 2d 669 (C.A 9, 1972),
Roman Stone Construction Company, and Kindred Concrete Products.
Inc, 153 NLRB 659, fn 3 (1965)
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dambro's prior statements concerning vandalism, I find
that Dambro's remark about having Woolf' s "ass" consti-
tuted a threat of violence directed against Woolf.
The Board has long held that it will not order bargaining
with a union that disregards the peaceful legal processes
provided in the Act and instead resorts to violent tactics.
However, all union misconduct is not of such a nature as to
require the withholding of a bargaining order. The Board
has refused to require bargaining where a union was re-
sponsible for a campaign of violence directed against an
employer. Union Nacional de Trabajadores (The Carborun-
dum Company of Puerto Rico), 219 NLRB 862 (1975);18 Jo-
seph H. Bliss, d/b/a Artcraft Mantel and Fireplace Co., 174
NLRB 737 (1969); Laura Modes Company, 144 NLRB 1592
(1963). However, in cases where the union's misconduct
was less widespread or pervasive, the Board has granted
the usual bargaining remedy Thus, in United Mineral &
Chemical Corporation, 155 NLRB 1390 (1965), enforcement
denied in pertinent part 391 F.2d 829 (C.A. 2, 1968), the
Board granted a bargaining order even after the union had
engaged in four or five instances of serious misconduct on
a picket line during a 65-day strike. The Board held that
the violence occurred in the heat of picket line tensions and
did not appear to be part of a plan of intimidation. In
World Carpets of New York, Inc, 188 NLRB 122 (1971),
enforcement denied in pertinent part 463 F.2d 57 (C.A. 2,
1972), the Board also granted a bargaining order in the
face of union violence, holding that the misconduct was
not of such an extreme nature as to require the withholding
of such an order. 19
In the instant case there is no proof that the Union en-
gaged in violence of any kind. The Union's inducement of
the employees to engage in acts of vandalism and the
Union's threat of violence to Woolf was not followed by
any acts of vandalism or violence.20 When Respondent re-
fused to bargain with the Union, it did not cite the Union's
misconduct as a reason for its refusal to bargain. Indeed,
there is no evidence in the record to indicate that Respon-
dent even knew, at the time it refused to bargain, about the
Union's remarks to employees or the threat to Woolf. The
Union's misconduct should not be condoned and the
Union is put on notice that it has drawn near that line at
which its bargaining rights can be vacated. However, I do
not believe that the Union's misconduct in the instant case
is so far-reaching or egregious that Respondent's refusal to
bargain should be permitted. I therefore find that on and
after September 30, 1975, Respondent violated Section
8(a)(5) of the Act by refusing to bargain with the Union.
As is set forth below, however, I shall consider all of the
above factors in tailoring a remedy that is appropriate to
the particular facts of this case
5. The other allegations of 8(a)(5) conduct keyed to the
September 30, 1975, meeting
Paragraph 10(b) of the complaint alleges that Respon-
dent violated Section 8(a)(5) of the Act at the September
30, 1975, meeting by conditioning its negotiation of a col-
lective-bargaining agreement on the Union' s giving an
equal voice at the bargaining table to the employees. Re-
spondent did insist at the September 30, 1975, meeting that
the employees be heard from. At that time Respondent
knew that they had renounced the Union and it is reason-
able to believe that Respondent thought the employees
would speak against the Union. However, those facts do
not establish that Respondent was requiring that the em-
ployees have an equal voice at the bargaining table.
Paragraph 10(c) of the complaint alleges that Respon-
dent violated Section 8(a)(5) of the Act at the September
30, 1975, meeting by soliciting employee sentiment con-
cerning their support of the Union, thereby undermining
the Union. Respondent did insist that the employees be
given an opportunity to speak and in that sense it did soli-
cit employee sentiment in a situation where Respondent
had knowledge that the employees were against the Union.
However, I do not believe that a separate violation should
be found based on either paragraph 10(b) or (c) of the
complaint. Respondent did refuse to bargain with the
Union at the September 30, 1975, meeting. It is likely that
Respondent sought to have the employees speak in an at-
tempt tojustify its anticipated refusal to negotiate with the
Union. As found above, such an attempt at justification
was unsupportable and I have found that Respondent did
unlawfully refuse to bargain with the Union. However,
nothing is to be added by a separate finding of violation
based on Respondent's request that the employees state
their views, particularly where, as here, the Union had pre-
viously engaged in the misconduct set forth above and all
the employees in the bargaining unit had, before the meet-
ing and before any unfair labor practice on the part of the
Employer, withdrawn their support from the Union. I shall
therefore recommend that paragraphs 10(b) and (c) of the
complaint be dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I. above, have a close, inti-
mate, and substantial relationship 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.
18 In that case there were massive acts of violence, and the Board vacated
an outstanding certification
19 See also Ramona 's Mexican Food Products, Inc, 203 NLRB 663, 685
(1973)
20 In United Mineral & Chemical Corporation, supra, and World Carpets of
New York, Inc, supra, the Second Circuit Court of Appeals disagreed with
the Board with regard to the degree of union violence that would warrant
the withholding of a bargaining order However, in both of those cases.
violent conduct did occur
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act, on and after
LEE OFFICE EQUIPMENT
September 30, 1975, by failing and refusing to meet and
negotiate with the Union as the exclusive representative of
its employees in the aforesaid appropriate unit, I recom-
mend that Respondent be ordered to meet, negotiate, and
bargain in good faith with the Union as the exclusive repre-
sentative of its employees in that unit.
In the usual case in which an employer refuses to bar-
gain within a certification year, the Board orders that the
initial period of certification be construed as beginning on
the date the company commences to bargain in good faith.
That extension of the certification year is required to insure
that the employees in the appropriate unit will be accorded
the services of their selected bargaining agent for the pe-
riod provided by law. Bell & Howell Company, 220 NLRB
881 (1975), and cases cited therein, Central Missouri Elec-
tric Cooperative, Inc, 222 NLRB 1037 (1976). However,
this is not the usual case and I do not recommend an ex-
tension of the certification year. A union should be given
ample time for carrying out its mandate on behalf of its
members. Ray Brooks v. NL.R.B., supra On the other
hand, employees have the right at appropriate times to se-
lect or reject a bargaining agent. Under the statute, em-
ployees may not have a second election within 1 year, and
under Board law they may not have an election when an
outstanding collective-bargaining contract bars such an
election There is no contract bar in the present case. The
initial election took place on April 11, 1975, and more than
a year has now passed. In the circumstances of this case,
the interest of the Union in having a full year of bargaining
is in conflict with the interest of the employees in selecting
or rejecting their bargaining representative. If the employ-
ees, under the circumstances of this case, do not want to be
represented by the Union, it would be inappropriate to
force such representation on them by extending the certifi-
cation year and thus foreclosing an employee petition for
an election. In balancing the interest of the Union and the
interest of the employees, the following factors must be
considered: the Union engaged in serious misconduct di-
rected toward those employees by inducing them to engage
in acts of vandalism against Respondent and by threaten-
ing one of those employees; after that improper conduct,
all of the employees in the bargaining unit notified the
Union that they no longer wanted the Union to represent
them; and the employees' renunciation of the Union was
not attributable to any misconduct on the part of Respon-
dent and it occurred well before Respondent refused to
bargain with the Union The employees' renunciation of
the Union did not justify Respondent in subsequently re-
fusing to bargain, because the renunciation occurred with-
in the certification year. However, the employees engaged
in no misconduct and the certification year is now over.
Under all those circumstances, I believe that the employees
should be permitted, if they choose to do so, to file a decer-
tification petition with the Board. As is set forth above, I
have recommended that Respondent be ordered to bargain
with the Union. I further recommend that the employees
be permitted, if they see fit to do so, to file a timely decerti-
fication petition.21 It is still further recommended that if
It Such a petition is to be subject to the usual contract - bar rules of the
Board As the Respondent and the Union have both engaged in misconduct.
835
such a petition is filed, accompanied by a sufficient show-
ing of interest, Respondent's duty to bargain be suspended
until such time as the Union is recertified by the Board as
the exclusive bargaining agent of the employees in the ap-
propriate bargaining unit.
CONCLUSIONS OF LAW
1. Respondent is an employer 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 driver-warehousemen employed by Respondent at
its facilities located at 330 East Charleston Boulevard and
950 East Sahara Avenue, Las Vegas, Nevada, excluding all
other employees, including office clerical employees, sales
employees, guards, watchmen, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4 At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5 By failing and refusing on and after September 30,
1975, to meet and negotiate with the Union as the exclusive
bargaining representative of the employees of Respondent
in the aforesaid unit, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
6 By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, there-
by 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.
8. Except as set forth above, the General Counsel has
not established by a preponderance of the credible evi-
dence that Respondent violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 22
Respondent, Lee Office Equipment, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Refusing to meet, negotiate, and bargain in good
faith with General Sales Drivers, Delivery Drivers and
Helpers Local Union No. 14, International Brotherhood of
as the employees have not engaged in any misconduct, and as all of the
employees in the bargaining unit at the time of the refusal to bargain had
renounced the Union such a petition is to be considered timely even if it is
filed before Respondent's unfair labor practice is remedied
22 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative of its
employees in the following bargaining unit:
All driver-warehousemen employed by Respondent at
its facilities located at 330 East Charleston Boulevard
and 950 East Sahara Avenue, Las Vegas, Nevada, ex-
cluding all other employees, including office clerical
employees, sales employees, guards, watchmen and
supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, meet, negotiate, and bargain in good
faith with said Union, as the exclusive bargaining represen-
tative of its employees in the unit described above. How-
ever, nothing contained in this Order is to be construed as
requiring Respondent to bargain with said Union after a
timely decertification petition is filed with the Board with a
sufficient showing of interest unless said Union is recerti-
fied by the Board.
(b) Post at its Las Vegas, Nevada, facilities copies of the
attached notice marked "Appendix." 23 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 31, after being duly signed by its authorized represen-
tative, shall be posted by it 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 it to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations in the com-
plaint as to which no violations have been found are
hereby dismissed.
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "