Phaostron Instrument and Electronic Co.

National Labor Relations Board - Board Decisions

May 4, 1965

152 N.L.R.B. 352 (N.L.R.B. 1965)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phaostron Instrument and Electronic Company and Communica-
tions Workers of America, AFL-CIO. Case No. 21-CA-6199.
May 4,1965
DECISION AND ORDER
On March 3, 1965, Trial Examiner David Karasick issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Decision. Thereafter, Respond-
ent filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the Act, the Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, Phaostron Instrument and Electronic Company, its offi-
cers, agents , successors , and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.'
1 The first sentence below the signature line at the bottom of the Appendix is amended
to read: "This notice must remain posted for 60 consecutive days from the date of post-
ing . . ." instead of "from the date hereof."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner David Karasick in Los Angeles,
California, on February 9, 1965, upon a complaint alleging that Phaostron Instru-
ment and Electronic Company, herein called the Respondent , had engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended , herein called the Act .1
Upon the entire record , including consideration of briefs filed on February 23,
1965, by the Respondent and the General Counsel and a letter filed by the Union,
and upon my observation of the demeanor of the witnesses , I hereby make the
following:
'The complaint , issued on October 29, 1964, is based upon a charge filed
on September 25, 1964.
152 NLRB No. 37.
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 353
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE RESPONDENT
The Respondent, a California corporation engaged in the manufacture of electrical
measuring instruments and associated measuring equipment , maintains its manufac-
turing plant and principal office and place of business in South Pasadena, California.
During the calendar year 1963, the Respondent, in the course and conduct of its
business operations, sold and shipped from its South Pasadena, California, plant
products valued in excess of $50,000 directly to customers located outside the State of
California. During the same period, the Respondent, in the course and conduct of
its business operations, purchased goods from outside the State of California valued
in excess of $50,000. The Respondent is, and at all times material herein has been,
an employer engaged in commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The representation proceeding
Following the filing of a petition in a representation proceeding in Case No. 21-
RC-8329, the Respondent and the Union entered into an agreement for consent
election which was approved by the Regional Director for Region 21 on May 15,
1963. The parties agreed that all production and maintenance employees, including
plant clerical employees, janitors, inspectors, leadmen and leadwomen, shipping and
receiving employees, and truckdrivers, but excluding all office clerical employees,
professional employees, technical employees, watchmen, guards, and supervisors as
defined in the Act, constituted an appropriate bargaining unit. I find that the unit so
agreed upon is appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
Pursuant to the agreement for consent election an election was held on May 23,
1963, among the employees of the Respondent. The Union was the only labor
organization on the ballot. As a result of the election, 155 votes were cast for the
Union, 162 were cast against the Union, and the ballots of 10 employees were
challenged. The challenged ballots were thus sufficient to affect the results of the
election. The 10 challenged ballots were cast by employees who had been discharged
by the Respondent prior to the election.
Following the filing of charges by the Union in Cases Nos. 21-CA-5332-1 and
21-CA-5332-2, alleging that the 10 employees in question had been discriminatorily
discharged, the charges with respect to 2 of the employees in question were subse-
quently withdrawn and a complaint with respect to the remaining 8 employees was
issued by the Regional Director for Region 21.2
On April 23, 1964, the Board issued its Decision and Order in Case No. 21-CA-
5332-1 ,3 in which it found that the Respondent had discriminatorily discharged
the eight employees as to whom the complaint had been issued and provided for
their reinstatement with backpay.
On April 30, 1964 , the Regional Director issued a report on challenged ballots in
which he upheld the challenges with respect to the two discharged employees as to
whom charges had originally been filed but subsequently withdrawn and overruled the
challenges with respect to the eight remaining employees who were found by the
Board to have been discriminatorily discharged in violation of Section 8(a)(3) of
the Act.
On May 4, 1964, the Regional Director counted the eight ballots of the employees
who had been found by the Board to have been discriminatorily discharged. All 8 of
these votes were cast for the Union, and the Regional Director on the same day issued
a revised tally of ballots showing that 163 votes had been cast for the Union and 162
votes had been cast against the Union.
On May 8, 1964, in accordance with the revised tally of ballots, the Regional
Director certified the Union as the statutory representative of the Respondent's
employees.
2 All of the charges in Case No 1-CA-5332-2 and so much of the charges in 21-CA-
5332-1 as related to one of the employees named therein were withdrawn
8 146 NLRB 996.
7 89-730-66-col 152-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The refusal to bargain
On May 22, June 5, and July 16, 1964, the Union addressed letters to the Respond-
ent, which the latter received thereafter in the due course of mail, requesting that the
Respondent meet and confer with the Union for the purpose of negotiating a
collective-bargaining agreement. The Respondent neither replied to the letters in
question nor thereafter met with the Union.
On August 25, 1964, the Board filed with the United States Court of Appeals for
the Ninth Circuit a petition for enforcement of its order in Case No. 21-CA-5332-1.
Following the filing of briefs and argument on February 4, 1965, the matter was
submitted and the case is now awaiting the decision of the court.
C. Concluding findings
The Respondent contends that the Union did not represent a majority of the
employees in an appropriate bargaining unit on May 22, June 5, or July 16, 1964,
because: (1) The Board's Order in Case No. 21-CA-5332-1 is invalid and therefore
the challenges of the eight employees involved should have been upheld; and (2) the
election was held more than a year prior to the time the Union made its first demand
for recognition and bargaining.
With respect to the first ground advanced by the Respondent for its refusal to bar-
gain, it argues that the Board was in error in finding that the eight employees who
cast challenged ballots were discriminatorily discharged and that, since a determina-
tion of that issue is now pending before the Court of Appeals for the Ninth Circuit,
no further action may be taken in this proceeding until the court has rendered its
decision. The issue thus raised has been decided contrary to the Respondent's
position.4
The Respondent's second ground for contesting the majority of the Union was
admittedly raised for the first time at the hearing and therefore cannot be relied upon
as a reason which impelled it to refuse to bargain when the Union made its requests
some months earlier. But even if that were not true, it is established that the date of
certification rather than the date of election marks the beginning of the period during
which an employer must recognize and bargain with a certified Union.5
Accordingly, I find that at all times since May 8, 1964, the Union has represented
a majority of the employees of the Respondent in the unit heretofore found appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act and that at all times since on or about May 22, 1964, the Respondent has
declined to recognize and bargain with the Union as the statutory representative of
the employees in such unit and thereby has engaged in conduct violative of Section
8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material herein, an employer
engaged in commerce and in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is, and has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, janitors, inspectors, leadmen and
leadwomen, shipping and receiving employees, and truckdrivers employed at the
Respondent's South Pasadena, California, plant, but excluding all office clerical
employees, professional employees, technical employees, watchmen, guards, 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. The Union has been at all times since May 8, 1964, and now is, the exclusive
representative of the employees in the aforesaid unit within the meaning of Section
9(a) of the Act.
5. Since on or about May 22, 1964, by refusing to bargain collectively with the
Union as the representative of employees in the above unit, the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a) (5) and (1) of the Act.
4 Ken-Lee, Inc., 137 NLRB 1642, enfd . 325 F. 2d 435 (C A 5).
5 Ray Brooks v. N.L R.B., 348 U.S. 96.
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 355
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, Phaostron Instrument
and Electronic Company, South Pasadena, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive representative
of its employees in the unit described above.
(b) In any manner interfering with the effort of the Union to bargain collectively
with Respondent on behalf of the employees in the above-described unit.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all employees in the unit herein found to be appropriate with
regard to wages, hours, and other terms and conditions of employment.
(b) Post at its usual place of business, copies of the attached notice 6 marked
"Appendix." 7 Copies of said notice, to be furnished by the Regional Director for
Region 21, shall, after being signed by the Respondent, 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. Reasonable steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in writing, within 20 days from
the receipt by the Respondent of a copy of this Decision, what steps it has taken to
comply herewith.8
It is further recommended that unless on or before 20 days from the receipt of
this Decision and Recommended Order the Respondent notify the Regional Director
that he will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an order requiring the Respondent to take the action aforesaid.
6 Since notices are customarily framed in the language of the statute and because
of their technical nature are often difficult for employees to understand, I am recom-
mending that the notice in this case embody the simplified form which appears in the
Appendix.
'In the event that this Recommended Order Is adopted by the Board, the words
"Pursuant to a Decision and Order" shall be substituted for the words "As recom-
mended by a Trial Examiner" in the notice. In the additional event that the Board's
Order is 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."
8In the event that this Recommended Order be adopted by the Board, paragraph 2(c)
shall be modified to read: "Notify the Regional Director for Region 2, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL bargain collectively with Communications Workers of America,
AFL-CIO, as the law requires.
WE WILL NOT interfere with the rights of our employees guaranteed them in
the National Labor Relations Act by refusing to bargain with the above-named
Union.
All our employees are free to become members of Communications Workers of
America, AFL-CIO, or any other union, and they are also free not to become
members of any union unless in the future we shall enter into a valid union-shop
contract with a union which represents our employees.
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any ques-
tion concerning this notice or compliance with its provisions.
Tallahassee Coca-Cola Bottling Company , Inc. and Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union #991,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , Independ-
ent. Case No. 12-CA-3082. May 4,1965
DECISION AND ORDER
On February 12, 1965, Trial Examiner Morton D. Friedman issued
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 Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Fanning and Jenkins].
The Board has considered the Trial Examiner's Decision, the excep-
tions, brief, and the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the Act, the Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, Tallahassee Coca-Cola Bottling Company, Inc., its offi-
cers, agents , successors , and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order.
'We hereby correct the third line in the last complete paragraph on page 357, Trial
Examiner 's Decision, to read Section 102.24 of the Board's Rules instead of 102.25 and
lines 2 and 3, page 358 , to read Case No. 12-RC-1892 instead of Case No. 13-RC-9960.
TRIAL EXAMINER'S DECISION
Upon a charge filed on December 3, 1964, by Teamsters, Chauffeurs, Warehouse-
men & Helpers Local #991, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called
the Union, the Regional Director for Region 12 of the National Labor Relations
Board, herein called the Board, issued a complaint on December 10, 1964, on behalf
of the General Counsel of the Board alleging violation of Section 8(a)(5) and (1)
of the Act, as amended (29 U.S.C. Sec. 151, et seq.). In addition to jurisdictional
and procedural allegations, the complaint alleges, in substance, that:
152 NLRB No. 33.