Bufkor-Pelzner Division, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1968

169 N.L.R.B. 998 (N.L.R.B. 1968)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bufkor-Pelzner Division , Inc. and Industrial Car-
penter 's Union, Local 2565, AFL-CIO, affiliated
with United Brotherhood of Carpenters and
Joiners of America . Case 20-CA-4602
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
February 20,1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a charge filed by Industrial Carpenter's
Union, Local 2565, AFL-CIO, affiliated with
Upited Brotherhood of Carpenters and Joiners of
America, herein called the Union, the General
Counsel of the National Labor Relations Board by
the Regional Director for Region 20, issued a com-
plaint, dated September 8, 1967,1 against Bufkor-
Pelzner Division, Inc., herein called Respondent or
the Employer, alleging that Respondent had en-
gaged in and was engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before a Trial Ex-
aminer were duly served upon the Respondent and
the Union.
The complaint alleges that on July 3 the Union
was duly certified as the exclusive bargaining
representative in an appropriate unit, and that, since
on or about July 6, Respondent has refused and is
refusing to recognize and bargain with the Union,
although the Union has requested it to do so. On
September 19, Respondent filed its answer to the
complaint, in which it admitted in part and denied
in part the allegations contained therein, and
requested that the complaint be dismissed.,
On October 23, the General Counsel filed with
the Board a Motion for Summary Judgment, and a
supporting memorandum, on the ground that no
issue of fact or law was in dispute since all matters
raised had been determined by the Board in the
representation proceeding, and requesting, in view
of Respondent's answer, that the Board enter
judgment against Respondent on the pleadings. On
October 27, the Board, having duly considered the
matter, ordered that the proceeding be transferred
and continued before it, and that cause be shown
why General Counsel's Motion for Summary
Judgment should not be granted. On November 21,
Respondent filed its Answer to the Notice to Show
Cause.
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
' All dates refer to 1967.
2 The Respondent, on May 5, forwarded to the Regional Office, the
names, addresses, and telephone- numbers of two of its employees who
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its Answer to the complaint, and Answer to
Notice to Show Cause, Respondent contends, inter
alia, that it is entitled to a hearing to insure full
litigation of the facts. For the reasons stated below,
this contention is without merit.
The record establishes that, on April 14, the Re-
gional Director approved a Stipulation for Certifi-
cation Upon Consent Election executed by the
parties, and pursuant thereto, on April 24, an elec-
tion was conducted among the employees in the fol-
lowing stipulated unit:
All regular full-time and regular part-time
production and maintenance employees of the
Employer at its factory, at 2445 Taraval Street,
San Francisco, California, excluding office
clerical employees, guards, and supervisors as
defined in the Act.
Upon conclusion of the balloting, the parties were
furnished a tally of ballots which showed that of ap-
proximately 11 eligible voters, 11 cast ballots, of
which 7 were for, and 4 were against, the Union.
Thereafter, on April 27, the Employer timely filed
objections to conduct affecting the results of the
election, alleging, inter alia, in Objection 2, that
prior to the election "the union, through its
representatives and agents, threatened certain of
the employer's employees in that if they did not
vote for the Union, they would not be able to work
for the employer in the future."2 After an adminis-
trative investigation, the Regional Director issued
a Report on Objections, in which he found that one
employee, a union adherent who solicited em-
ployees to sign union cards, told others that if the
Union got in: ". . . if employees did not join the
Union they could not work there." The Regional
Director further reported that his investigation dis-
closed no evidence that the union adherent held any
union office or that the Union authorized or ratified
her conduct. He therefore concluded that Respond-
ent's objection 2 raised no substantial or material
issues with respect to the election.3
In its exceptions to the Regional Director's Re-
port on Objections, the Respondent alleged in
material part that the Regional Director failed to
conduct a proper investigation in that he had failed
to interview all employees whose names had been
given to him, and asked, as an alternative to the
Board directing a new election, that a hearing be
were allegedly threatened.
3 The Regional Director further recommended that Respondent's other
objections be overruled, and that the Union be certified.
169 NLRB No. 139
BUFKOR-PELZNER
held to enable such employees to testify to the al-
leged threats made to them.
The Board, on July 3, issued its decision adopting
the Regional Director 's findings and recommenda-
tions, and certifying the Union as the exclusive
representative of all the- employees in the ap-
propriate unit.4
In the instant proceeding , the Respondent, in
defense of its refusal to bargain, reiterated its con-
tention that had the Regional Director conducted a
full investigation and interrogated all employees
whose names were furnished to the Regional
Director, it would have been established that prior
to the election the Union through its agents had
threatened employees with reprisals if they did not
vote for the Union. It did not document its excep-
tions with any stated offer of proof or inform the
Board even in general terms of the substance of the
evidence allegedly available to it which had not
been sought out by the Regional Director. Respond-
ent, however, stated that it had such proof and of-
fered to submit the affidavits of two employees,
Valentina Sinkevitch and Helen Huey,5 in support
of its position that union agents had threatened
these employees and thereby interfered with the
election.
Pursuant to special leave granted by the Board,
the Respondent thereafter filed the affidavits in
question with the Board. Both of the named affiants
allege in so many words that a fellow employee,
Mary Faenzi, who represented herself to be an
agent of the Union,6 threatened them with loss of
employment if they did not vote for the Union.
It is well established that a party seeking to have
the Board overrule a Regional Director's findings
and recommendations with respect to objections to
an election must supply specific evidence which
prima facie would warrant setting the election aside
before the Board will direct a hearing7 or require the
Regional Director further to pursue his investigati-
on.' Respondent now seeks to establish union
responsibility for the statements of Faenzi by al-
legations that a fellow employee, who only sought
to obtain signed authorization cards, said she was
an agent of the Union. This allegation standing
alone is clearly insufficient to establish such agency
relationship.9 Therefore, inasmuch as the Board has
previously rejected Respondent's contentions as
lacking in merit, and as Respondent has not offered
any further evidence which could require modifica-
tion of our earlier decision, it is clear that, in the cir-
cumstances of this case, an evidentiary hearing now
4 Case 20-RC-7469, not published in NLRB volumes.
5 Respondent requests that the Board receive testimony of employee
Helen Huey , although it concedes that she was interviewed during the Re-
gional Director 's investigation , regarding threats made to her by union
representatives
6 It is now evident that employee Sinkevitch had no more evidence to
offer on the alleged role played by Faenzi than did employee Huey whom
the Regional Director did interview . In view of the Regional Director's
finding on the evidence gathered by him that the employee who allegedly
DIVISION, INC. 999
is not warranted. As all material issues have been
previously decided by the Board, and as all allega-
tions of the complaint are admitted by Respond-
ent's Answer to the Complaint, or stand admitted
by the failure of Respondent to controvert the aver-
ments of the General Counsel's motion, there are
no matters requiring a hearing before a Trial Ex-
aminer. Accordingly, the General Counsel's Mo-
tion for Summary Judgment is granted.
On the basis 9f the record before it, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation, engaged
in the manufacture of jewelry cases at San Fran-
cisco, California. In the course of its business,
Respondent annually sells and ships goods valued
in excess of $50,000 directly to points outside the
State of California. Respondent admits, and we
find, that it is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Industrial Carpenter 's Union , Local 2565,
AFL-CIO, affiliated with United Brotherhood of
Carpenters and Joiners of America, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees at the Respondent's
factory at 2445 Taraval Street, San Francisco,
California, constitute a unit appropriate for collec-
tive bargaining within the meaning of the Act:
All regular full-time and regular part-time produc-
tion and maintenance employees; excluding office
clerical employees, guards, and supervisors as
defined in the Act.
2. The certification
On April 24, 1967, a majority of the employees
of Respondent in said unit , in a secret election con-
represented herself as an agent of the Union was not in ffact such agent, we
find no merit in Respondent's contention that it was prejudiced by the Re-
gional Director 's failure to interview Sinkevitch
' Orleans Manufacturing Company, 120 NLRB 630, 631, Mattison
Machine Works, 120 NLRB 58, 60.
8 Avon Products, Inc, 116 NLRB 1729, 1730; Pacific Maritime As-
sociation and Its Member Companies, 112 NLRB 1280, 1282.
s Schauffler v. Highway Truck Drivers & Helpers, 230 F 2d 7, 10 (C A.
3)
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted under the supervision of the Regional
Director for Region 20, designated the Union as
their representative for the purpose of collective
bargaining with Respondent , and on July 3, the
Board certified the Union as the collective-bargain-
ing representative of the employees in said unit and
the Union continues to be such representative.
B. The Request to Bargain and the Respondent's
Refusal
Commencing on or about July 6, and continuing
to date, the Union has requested, and is requesting,
the Respondent to bargain collectively with it with
respect to wages, hours, and working conditions of
the employees in the appropriate unit . The Respond-
ent admittedly declined , and has continued to
decline , through its president and agent , Morton D.
Pelzner, to bargain with the Union as exclusive col-
lective-bargaining representative of all employees
in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective-bargaining
representative of the employees of the Respondent
in the appropriate unit described above in the
Board's certification, and that the Union at all times
since July 3, 1967, has been and is now the exclu-
sive bargaining representative of all the employees
in the aforesaid unit, within the meaning of Section
9(a) of the Act. We further find that Respondent
has, since July 6, 1967, refused to bargain collec-
tively with the Union as the exclusive bargaining
representative of its employees in the appropriate
unit, and that, by such refusal, the Respondent has
engaged in , and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of the Respondent set forth in section
III, above, occurring in connection with its opera-
tions as described in section 1, above, have a close,
intimate , and substantial relation to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and, upon request, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Bufkor-Pelzner Division, Inc., is an Employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Industrial Carpenter's Union, Local 2565,
AFL-CIO, affiliated with United Brotherhood of
Carpenters and Joiners of America, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All regular full-time and regular part-time
production and maintenance employees of the Em-
ployer at its factory at 2445 Taraval Street, San
Francisco, California; excluding office clerical em-
ployees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since July 3, 1967, the above-named labor or-
ganization has been the exclusive representative of
all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about July 6, 1967, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and thereby engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor pratices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Bufkor -Pelzner Division , Inc., San Francisco,
California , its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of em-
ployment , with Industrial Carpenter 's Union, Local
2565, AFL-CIO, affiliated with United Brother-
hood of Carpenters and Joiners of America, as the
exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All regular full-time and regular part-time produc-
tion and maintenance employees of the Employer
at its factory at 2445 Taraval Street , San Francisco,
California; excluding office clerical employees,
guards, and supervisors as defined in the Act.
BUFKOR-PELZNER DIVISION, INC.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization, as the exclusive representative
of all employees in the aforesaid appropriate unit,
with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its San Francisco, California, place of
business, copies of the attached notice marked
"Appendix."10 Copies of said notice, on forms pro-
vided by the Regional Director for Region 20, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
10 In 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 Decree of the United States Court of Appeals En-
forcing 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 policies of the National Labor Relations Act, as
amended, we hereby notify you that:
1001
WE WILL NOT refuse to bargain collectively
with Industrial Carpenter's Union, Local 2565,
AFL-CIO, affiliated with United Brotherhood
of Carpenters and Joiners of America, as the
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 em-
ployees 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
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All regular full-time and regular part-
time production and maintenance em-
ployees of the Employer at its factory at
2445 Taraval Street, San Francisco,
California„ excluding office clerical em-
ployees, guards, and supervisors as
defined in the Act.
Dated By
BUFKOR-PELZNER
DIVISION, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any 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, 13050 Federal Building, 450 Golden Gate
Avenue, San Francisco, California 94102,
Telephone 556-0335.