Delsea Iron Works, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1963

140 N.L.R.B. 1316 (N.L.R.B. 1963)

1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for Atlas Linen and Industrial Supply,6 cited by the General Counsel to support
the argument of condonation , we have seen that in the instant case there was no
presumed condonation by failure to cite the violative acts while other defenses were
asserted to justify the refusal to reinstate . Indeed , in Atlas Linen , not only were the
employees told that they could not be taken back "solely" because they had been
replaced , but they were several times promised that they would be recalled when
work became available for them . While the Company 's position here that there was
no proper request has been found to have been erroneous and violative , such finding
does not embrace or suggest a waiver or condonation of the threats and violence.
The findings heretofore made and adopted are incorporated herein by reference
and are supplemented by the findings hereinabove made. The conclusions of law
heretofore made and adopted are also herein incorporated by reference . The parties
recognize that reinstatement has been offered to all except Simpson and Moore. It
does not appear that any of the seven has been made whole. Interest at the rate
of 6 percent per annum shall be added to the backpay due, to be computed in the
manner set forth in Isis Plumbing d Heating Co."
[Recommendations omitted from publication.]
9 130 NLRB 761, 781.
9 138 NLRB 716.
Delsea Iron Works , Inc. and Local 676, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America . Case No. 4-CA-2607. February 20, 1963
DECISION AND ORDER
Upon charges duly filed on April 19, 1962, by Local 676, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, against Delsea Iron
Works, Inc., herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Fourth Region, issued a complaint alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a) (1) and (5) and Section
2(6) and (7) of the Act. Copies of the charge, the complaint, and
notice of hearing were duly served upon the Respondent and the
Charging Party.
The complaint alleges that since April 4, 1962, Respondent has
refused to bargain with the Union, which was certified on or about
March 29, 1962, in a unit consisting of all production and maintenance
employees and all truckdrivers at Respondent's Millville, New Jersey,
plant, excluding office clerical employees, guards, and all supervisors
as defined in the Act. On May 23, 1962, Respondent filed an answer
which was duly served upon the General Counsel and the Charging
Party. In its answer Respondent admits that it has refused and is
refusing to bargain, but asserts, as an affirmative defense, that the
Union's certification is invalid.
On June 19, 1962, the parties entered into a stipulation by which
they waived a hearing before a Trial Examiner, and the issuance of an
140 NLRB No. 108.
DELSEA IRON WORKS, INC. 1317
Intermediate Report and Recommended Order by a Trial Examiner.
By this stipulation, the parties also agreed to submit the case to the
Board for findings of fact, conclusions of law, and an order based upon
the "Stipulation, including the Exhibits ... the Charge, Complaint
and Notice of Hearing, and Answer to the Complaint and ... such
offers of proof ... that are accepted by the Board...."
On June 21, the Board approved the stipulation and transferred
the case to it. Thereafter, the parties filed briefs.
Upon the basis of the stipulation and the entire record in the case,
the Board makes the following :
FINDINGS OF FACT i
1. Respondent is, and at all times material herein has been, a corpora-
tion incorporated under the laws of the State of New Jersey, having
its principal plant and place of business at Millville, New Jersey, where
it is engaged in the manufacture and sale of fabricated steel products.
During the year ending May 11, 1962, Respondent shipped from its
plant products valued in excess of $50,000 directly to points outside
the State of New Jersey.
We find that Respondent, at all material times herein, has engaged
in and is engaging in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of the Act
to assert jurisdiction in this case.
2. The Union is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. Beginning on May 15, 1961,2 the Union picketed in front of Re-
spondent's plant with a sign reading :
Delsea Iron Works, Inc.
On Strike Local 676
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
Picketing with this placard apparently continued every day there-
after except for June 8, 1961.
On May 29, 1961, the Union filed a representation petition in Case
No. 4-RC-4619. On June 9, 1961, the Union wrote a letter to the
IIn their stipulation the parties agreed to the inclusion of an offer of proof by the Re-
spondent . The stipulation sets forth the opposition of the General Counsel and the
Charging Party to the Board 's acceptance of the Respondent's offer ; however, the stipula-
tion further recites an offer of proof by the General Counsel, which offer was conditioned
upon the Board 's acceptance of Respondent's offer.
For the purpose of resolving the issues herein, we accept both Respondent 's and the
General Counsel 's offers of proof, and the factual findings herein are , in part, based upon
such acceptance.
2 Between May 9 and 12 , Respondent 's premises were picketed , apparently on behalf
of an independent union , with signs stating:
Delsea Iron Works, Inc.
Unfair Substandard Conditions
Delsea Iron Works , Inc., Independent Labor Organization
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director requesting withdrawal of the representation peti-
tion. Also on June 9, the Union filed unfair labor practice charges
against Respondent (Case No. 4-CA-2369) alleging violations of Sec-
tion 8 (a) (3) and (1) of the Act.
On June 12, 1961, the Regional Director sent the parties a letter
formally approving the request for withdrawal of the representation
petition and closing Case No. 4-RC-4619.
On June 21, 1961, Respondent filed an 8(b) (7) (C) charge against
the Union.
On June 22, the Union filed an 8 (a) (5) charge against Respondent.
On June 25, the Union requested the Regional Director to reinstate
the petition in Case No. 4-RC-4619, and to permit withdrawal of its
8(a) (5) charge, without prejudice. On July 17, the Union filed with
the Regional Director a request to proceed with a representation elec-
tion, notwithstanding the charge in Case No. 4-CA-2369.
On July 19, the Regional Director wrote the parties that he was
rescinding his approval of the Union's request for withdrawal of the
representation petition in Case No. 4-RC-4619, and was reinstating
the petition therein. On July 20, the Regional Director granted the
Union's request to withdraw the 8(a) (5) charge.
By letter of July 25, 1961, the Regional Director advised the parties
that "on the basis of the investigation made to date" in Case No.
4-RC-4619 "it appears appropriate now to conduct a secret ballot
[election] . . . . Accordingly, pursuant to Section 8(b) (7) (C) and
9 (c) of said Act, and Section 102.77 of the Board's Rules and Regula-
tions, Series 8, as amended, an election by secret ballot" would be
conducted.
On July 28, the Regional Director refused to issue a complaint
alleging a violation of Section 8(b) (7) (C) on the ground that the
petition in Case No. 4-RC-4619 was a defense.
On August 1, the Regional Director issued a complaint in Case No.
4-CA-2369.
On August 11, Respondent appealed to the General Counsel the
dismissal of its 8(b) (7) (C) charge, and in the appeal argued that an
election should not have been directed by the Regional Director as
all the conditions essential to an expedited election had not been
satisfied. The General Counsel denied Respondent's appeal.
On August 21, 1961, an expedited election was held, resulting in
no votes for the Union, 11 voters challenged by the Union, and 11 other
voters challenged by Respondent.
On March 27, 1962, in accordance with the Board's Decision and
Order in Delsea Iron Works, Inc., 136 NLRB 453,3 involving Cases
3 In that case the Board held that the Respondent herein had discharged employees for
striking to protest a no-smoking rule, in violation of Section 8(a) (3) of the Act, as
alleged in the complaint in Case No 4-CA-2369. The Board also adopted the Trial
Examiner's findings that: (1) the discharged employees , who had been challenged by Re-
DELSEA IRON WORKS, INC. 1319
Nos. 4-CA-2369 and 4-RC-4619, certain challenged ballots cast in
the election conducted on August 21, 1961, were opened and a revised
tally of ballots was served upon all parties. Respondent accepted
the revised tally of ballots "under protest, pending outcome of possible
further litigation." On March 29, 1962, the Regional Director cer-
tified the Union as the representative of Respondent's employees 4
On March 30, 1962, the Union, through its counsel, requested that
Respondent meet in order to commence negotiations for a collective-
bargaining contract. By letters dated April 4 and April 18, 1962,
Respondent, through its counsel, notified the Union that it would not
negotiate with it at that time. At all times since then Respondent has
refused to bargain with the Union.
Respondent contends that the Regional Director acted improperly
in reinstating the Union's petition in Case No. 4-RC-4619 after the
picketing herein, which admittedly was for a recognitional object,
had continued for more than 30 days. Respondent argues in this
respect that the Regional Director's action was clearly improper as a
matter of law and policy.'
We are satisfied that the Regional Director did not abuse his dis-
cretion in reinstating the petition and conducting the election held on
August 21, 1961. Within the space of 2 weeks following the approval
of the request for withdrawal of the petition, there was filed with the
Regional Director an 8(b) (7) (C) charge, an 8(a) (5) charge, and a
request to reinstate the petition. In these unusual circumstances we
believe that the Regional Director reasonably exercised his discretion
by reinstating the petition and seeking to resolve the differences be-
tween the parties by an election. The net effect of such restoration
was that a petition was on file which antedated the 8 (b) (7) (C) charge
and was filed less than 30 days after the picketing began. There was
thus the proper predicate for the conduct of an expedited election.
We find, therefore, that it was a valid election. As the election was
won by the Union, Respondent was obligated to honor the certifica-
tion of the Union. We find, that by its refusal to bargain with the
Union since April 4, 1962, Respondent has violated, and is violating,
Section 8(a) (5) and (1) of theAct°
spondent , were entitled to vote in the election in Case No . 4-RC-4619 and their replace-
ments were not eligible to vote therein ; and (2 ) the Trial Examiner had no authority to
pass on Respondent 's contention that the election underlying the challenges was invalid.
4 The certification sets forth that as the Union had obtained a majority in an election
directed by the Regional Director from a revised tally of ballots , and as no objections
were filed to such tally or to the conduct of the election , the Union was certified pursuant
to Section 9(c) of the Act.
5 The facts in Moore Laminating, Inc, 137 NLRB 729, on which Respondent relies, are
distinguishable . In that case , unlike here , the Regional Director did not direct an
expedited election
'We find no merit in other contentions raised by the Respondent . It is clear that
Respondent is attempting to relitigate matters previously decided by the Board in Delaea
Iron Works, Inc, 136 NLRB 453 Thus, in that case the Board rejected the Respondent's
further contentions that the 11 discharged employees should not be permitted to vote, and
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The activities of Respondent set forth above, occurring in con-
nection with the operations of Respondent set forth above in para-
graph 1 under "Findings of Fact," have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices violative of Section 8 (a) (1) and (5) of the Act, we shall order
it to cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
In order to remedy these unfair labor practices, we shall order
Respondent to bargain with the Union in the appropriate unit desig-
nated herein.
CONCLUSIONS OF LAW
1. Delsea Iron Works, Inc., is an employer within the meaning of
Section 2 (2) of the Act.
2. Delsea Iron Works, Inc., is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
3. Local 676, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor organization within
the meaning of Section 2 (5) of the Act.
4. All production and maintenance employees and all truckdrivers
at Respondent's plant at Millville, New Jersey, excluding office
clerical employees, guards, and all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
5. At all times since March 29, 1962, the above labor organization
has been and continues to be the exclusive bargaining representative
of all the employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
6. By refusing, on and after April 4, 1962, to bargain collectively
with the above labor organization as the exclusive representative of
its employees in the above unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
7. By refusing to bargain with the above labor organization, Re-
spondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act, thereby
engaging in an unfair labor practice within the meaning of Section
8 (a) (1) of the Act.
that if they were permitted to vote, their 11 alleged replacements should also be per-
mitted to vote . We also find that, in the circumstances , there is no merit in Respondent's
contention that a new showing of interest and a hearing were required before the Re-
gional Director could have validly directed the election herein discussed
DELSEA IRON WORKS, INC. 1321
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Delsea Iron Works,
Inc., and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain with Local 676, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the representative of all production and, maintenance em-
ployees and all truckdrivers at Respondent's Millville, New Jersey,
plant, excluding office clerical employees, guards, and all supervisors
as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed under
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion, as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 676, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of all the em-
ployees in the appropriate unit above, for the purpose of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Post at its place of business in Millville, New Jersey, copies of
the attached notice marked "Appendix."' Copies of this notice, to
be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by a representative of the Respondent, be
posted by it upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places including all such
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 the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
I 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 our employees that :
WE WILL bargain upon request with Local 676, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the exclusive representative of all our em-
ployees in the bargaining unit defined below with respect to rates
of pay, wages, hours of employment, or other terms or condi-
tions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit
is :
All production and maintenance employees and all truck-
drivers at the Millville, New Jersey, plant, of Delsea Iron
Works, Inc., excluding office clerical employees, guards, and
all supervisors as defined in the Act.
WE WILL NOT, in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of their rights guar-
anteed under Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization, as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that this right may be affected by a lawful agreement
requiring membership in a labor organization as a condition of
employment.
DELSEA IRON WORKS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate with the Board's Regional Office,
1700 Bankers Securities Building, Walnut and Juniper Streets,
Philadelphia 7, Pennsylvania, Telephone No. Pennypacker 5-2612,
if they have any question concerning this notice or compliance with
its provisions.