L. L. Glascock, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1966

160 N.L.R.B. 922 (N.L.R.B. 1966)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chosen by themselves ; to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection ; to refrain from any
such activities ( except to the extent that the right to refrain is limited by the
lawful enforcement of a lawful union -security requirement).
UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Repre,ientative ) ( 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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 1536
Federal Building, 1000 Liberty Avenue , Pittsburgh , Pennsylvania 15222, Telephone
644-2969.
L. L. Glascock , Inc. and Construction and General Laborers'
Local No. 619, affiliated with International Hod Carriers',
Building and Common Laborers ' Union of America , AFL-CIO
and Meridian Contractors' Association , Inc., Intervenor. Case
15-CA-2694. September 7,1966
DECISION AND ORDER
On June 6, 1966, Trial Examiner Frederick U. Reel issued his Deci-
sion ill the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it, cease and desist therefrom and take certain
aflirniative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and Intervenor together, and the
General Counsel separately, filed exceptions to the Trial Examiner's
Decision, together with supporting briefs.
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 Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed.' The Board has considered the Trial Examiner's
1 The Trial Examiner permitted the Respondent to introduce evidence with respect to
certain preelection conduct of the Union which it contends improperly influenced the out-
come of the election upon which the Union's certification was based The Trial Examiner
concluded that the Respondent failed to show that the Union had engaged In preelection
conduct requiring that the election should be set aside . We agree with his conclusions on
the merits of Respondent ' s "objections " However, these objections involved , in part, mat-
ters contained in the Respondent 's "Objections to Conduct Affecting the Results of the
Election" in the representation case, which objections were found by the Regional Director
to be without merit . The Respondent 's request for review of the Regional Director's report
was denied by the Board Also Involved in the preelection conduct that Respondent sought
to litigate here was certain matter not contained in Its objections In the representation
case, but such matter was not newly discovered or at least it involved alleged public con-
160 NLRB No. 74.
L. L. GLASCOCK, INC. 923.
Decision, the exceptions and briefs of the Respondent and Intervenor
and of the General Counsel, and the entire record in this case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.] 2
duct by union representatives which with due diligence the Respondent could have in-
cluded in its objections Its being raised in this proceeding was, as the Trial Examiner
described it, an "afterthought ." In any event , we believe that the General Counsel's ob-
jection to litigating these representation matters in this proceeding was well founded But,
in the circumstances , the Trial Examiner's overruling the General Counsel's objection was
at most nonprejudicial error.
2 We find merit in the General Counsel's exception with respect to the provisions of the
notice recommended by the Trial Examiner . Consequently , for that notice is substituted the
attached Appendix In conformity with this change, the first sentence of section 2(b) of
the Recommended Order of the Trial Examiner is amended to read as follows " ( b) Post at
its office at Meridian, Mississippi , copies of the attached notice to the Board 's Decision
designated 'Appendix ' "
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 :
NE WILL bargain collectively, upon request, with Construction
and General Laborers' Union, Local No. 619, affiliated with Inter-
national Hod Carriers' Building and Common Laborers' Union
of America, AFL-CIO, as the exclusive bargaining representa-
tive of all employees in the certified unit described below con-
cerning wages, rates of pay, hours of employment, and other con-
ditions of employment and, if an understanding is reached,
embody it in a signed agreement. The bargaining unit is :
All construction laborers employed by L. L. Glascock, Inc.,
in and around Meridian, Mississippi, excluding all other
employees, guards, watchmen, and supervisors as defined in
the Act.
WE WILL NOT refuse to bargain collectively with, nor in any
manner interfere with the efforts of, the Union to bargain with us
on behalf of the employees in the appropriate unit.
L. L. GLASCOCK, INC.,
E,i ployer%
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.
'924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, T6024 Federal Building (Loyola), 701 Loy-
ola Avenue, New Orleans, Louisiana, Telephone 527-6391.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Frederick U. Reel at Meridian,
Mississippi, on April. 26, 1966,1 pursuant to a charge filed the preceding August 23,
and a complaint issued October 15, concerns Respondent's admitted refusal to bar-
gain with the Charging Party, notwithstanding the latter's certification in Case
15-RC-3011 (herein called the representation case) as the collective-bargaining
representative of Respondent's construction laborers. At the hearing the Intervenor
was permitted to intervene to the extent of its interest; it was also an intervenor in
the representation case.
Upon the entire record, including my observation of the witnesses, and after due
consideration of the briefs filed by the Respondent and the General Counsel, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent, a Mississippi corporation, herein called the Company, is engaged
in and around Meridian as a general contractor in the construction industry, annu-
ally receives goods valued in excess of $50,000 directly from points outside the
State, and is admittedly an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Charging Party, herein called the Union, is
a labor organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
On June 15, the Board's Regional Director certified the Union as bargaining
representative of the Company's construction laborers and on July 9 the Board
denied a request for review in that matter. These were the culminating steps in the
representation case, and settled adversely to the Company its contention that the
election, which the Union won on April 20 by a vote of 15 to 0, should be set
aside because of alleged improprieties surrounding the conduct of the election. The
Company also contended that the election was conducted in an inappropriate unit,
a matter disposed of by the Regional Director in footnote 4 of the Direction of
Election, issued February 1, as to which the Board denied review on April 5. To
test alleged errors in unit discrimination and in the overruling of objections to
conduct affecting the election, the Company has continued to refuse to bargain
with the Union, and this refusal is the "unfair labor practice" here involved.
Insofar as the Company attacks the appropriateness of the unit, alleging that a
unit limited to its employees is inappropriate and that the unit should embrace all
the employers in the Intervenor Association, it seeks to raise an issue determined
after a full hearing in the representation case. Under settled law, this issue is not
before me for relitigation; the Company proffered no newly discovered relevant
evidence or any relevant evidence not heretofore available on this issue. It did
proffer evidence of turnover within the unit and of defections from the Union,
which I rejected as immaterial under Ray Brooks v. N.L.R.B., 348 U.S. 96. Of
course, the record in the representation case will be available to the Board if the
Company should ask the Board to reconsider the ruling on the unit, and that
record will also be before the court of appeals if this litigation should go there
for enforcement or review of a bargaining order. At this stage of the proceeding,
however, I am bound by the determination in the representation case that "all
construction laborers employed by the Respondent in and around Meridian, exclud-
ing all other employees, professional employees, guards, watchmen, and super-
visors as defined in the Act" constitute an appropriate bargaining unit.
Respondent also attacks the certification as invalid on the ground that the elec-
tion should have been set aside pursuant to the objections Respondent filed thereto.
1 All other dates herein refer to the year 1965 unless otherwise indicated.
L. L. GLASCOCK, INC. 925
Of the six objections filed, the first three dealt with alleged union misconduct,
the fifth with the inappropriateness of the unit, and the fourth and sixth were con-
clusionary allegations as to the effect of the conduct described in the other objec-
tions. The Regional Director dismissed the last three objections as insufficient on
their face (which they rather plainly were), and dismissed the other objections
either for the Company's failure to offer support therefor (allegations that the
Union promised or offered monetary or other inducements to get employees to sign
authorization cards and to vote for the Union), or because the conduct complained
of (allegedly telling employees that they had to be in the Union to retain their
jobs) occurred prior to the filing of the representation petition, the "cut-off date"
under Ideal Electric and Manufacturing Company, 134 NLRB 1275. A seventh
objection, not included in the written objections, was that a union representative
told a certain "labor-foreman and laborer" that the latter was not eligible to vote.
The Regional Director investigated this objection and dismissed it for want of
substantiation.
After issuance of the complaint, the Company resisted efforts to expedite the
proceeding by means of judgment on the pleadings, urging that it had never had
a hearing to its objections and that it had evidence to present, which was not avail-
able to or considered by the Regional Director. At the hearing on the complaint
the Company was therefore afforded full opportunity to adduce such testimony as
it desired to offer concerning the objections to the election.2 The evidence it offered
to show that the election should have been set aside fell far short of the mark, as
the following summary will show.
1. John Savell, who at the time of the election was a laborer employed by the
Company, testified that a week or 10 days before the election he asked the union
business agent, Townsend, whether he (Savell) was eligible to vote in the election,
and Townsend answered in the negative. Later, but still before the election, Savell
mentioned Townsend's statement to Young, the company superintendent, and Young
replied that he thought Savell was eligible to vote. Savell made no effort to vote
in the election, which the Union won, 15 to 0. The objection to the election based
on his testimony must fall, for even apart from the fact that his ballot would not
have affected the outcome, the record shows that he had no more reason to rely
on Townsend's statement than-on Young's, and also that the Company had knowl-
edge of the matter but failed to include it in its objections.
2. B. R. Noland testified that at the election he intended to vote "No" but that
he became "excited" when the Board agent who gave him the ballot told him to
"Hurry up and sign it," so he "went ahead and signed "Yes" by mistake. On cross-
examination, however, it developed that Noland asked the Board agent where to
sign the ballot and the agent told him not to sign his' name but to mark an X in
"Yes" or "No," depending upon which he wanted. Apart from the immateriality
of this ballot in determining the result of the election, the conduct of the Board
agent was proper, and even if it caused Noland's regrettable confusion would not
be ground for setting aside the election.
3. Respondent elicited from Noland and from two other employee witnesses
-(one of whom was not eligible to vote in the election, apparently because not in
the Company's employ on the critical date) testimony that in a preelection meet-
ing the Union "promised" them a wage increase if it won the election, and also
assured them that if the Union won the election the other employer-contractors
in the area would also recognize the Union. On cross-examination these statements
were somewhat "watered down" to establish nothing more than that the Union in
its propaganda indicated that it would bargain for a wage increase and hoped to
organize the other contractors if successful in the election. Townsend, the union
business agent, called by the Company as an adverse witness, testified to the same
effect, and I credit his testimony in this regard.
2 I denied the Company' s motion to obtain the Regional Director' s "case file reflecting the
results of [the] investigative proceeding had and conducted upon [the] objections." Cf.
Kearney & Trecker Corp v. N.L.R B., 209 F 2d 782 (C.A. 7). Insofar as the Regional Di-
rector resolved the issues of law and insofar as he resolved factual issues in favor of the
Company, no hearing is required, and a fortiori the record is adequate for review without
including the "case file" pertinent to such issues. N.L.R.B. v. Douglaa County Electric
.Membership Corp, 358 F.2d 125 (C.A. 5). Insofar as the Company seeks to raise factual
issues on the objections decided adversely to it in the representation case , both it and the
General Counsel stand or fall on the record made before me, and hence the representation
"case file" need not be part of the record except to reflect formal actions taken.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Employee Leroy Roberts testified that union officials promised him indi-
vidually that he would not have to pay an initiation fee if he voted for the Union.
Employee Breelan Coleman (not eligible to vote in the election ) testified that
Union Business Agent Townsend stated at a union meeting that if the Union won
the election the employees would not have to pay initiation fees. Coleman on cross-
examination seemed unable to recall anything that was said at the meeting, a cir-
cumstance which casts considerable doubt on his direct testimony , particularly as
no other employees who attended the same meeting and were called as witnesses
testified to any such statement . Under all the circumstances I would not invalidate
the election because of the testimony of Roberts and Coleman , and at most would
think it cast doubt on the validity of Roberts ' ballot . See Amalgamated Clothing
Workers v. N.L.R.B., 345 F.2d 264, 267-268 (C.A. 2), and note Judge Friendly's
concurrence at 268-269, distinguishing N.L.R.B. v. Gilmore Industries, Inc., 341
F.2d 240 (C.A. 6), here relied on by the Company, on the ground that in the
Clothing Workers case , as here, the union won by a heavy majority and the employ-
er's objection with respect to the initiation fees was "plainly an afterthought." In
this connection , I note that although the election was held April 20, 1965, as late
as June 24 the Company in its request for review by the Board offered to show
only that the Union had promised wage increases to the employees , not that it
had made improper offers to waive initiation fees. Cf. S. D. Warren Co. v. N.L.R.B.,
353 F.2d 494, 496, 497 (C.A. 1), cert. denied 383 U.S. 958: . . it would be
impermissible for an employer to withhold in the representation proceeding an
important objection and present it for the first time in the Section 8 ( a)(5) and
(1) proceeding to undo what had been tediously worked out in the representation
proceeding." See also N.L.R.B. v. Douglas County Electric Membership Corp., 358
F.2d 125 (C.A. 5).
5. In its objections to the election the Company contended that the Union had
told employees they had to be union members to work on a job. The testimony in
support of that allegation concerned statements allegedly made in 1963 ( to witness
Roberts ), in 1962 (to witness Coleman), and in the summer of 1964 ( to witness
Noland). The evidence thus confirms the Regional Director 's statement in his
decision overruling the objections that the alleged misconduct antedated the filing
of the representation petition and is not grounds for setting aside the election.
I find , in short , that none of the evidence adduced at the hearing provides any
basis in law for the Company's failure to honor the Union 's certification.
CONCLUSIONS OF LAW
The Company by refusing to bargain with the Union as the representative of the
construction laborers has engaged in an unfair labor practice affecting commerce
within the meaning of Sections 8(a)(5) and ( 1) and 2 ( 6) and ( 7) of the Act.
THE REMEDY
I shall recommend the customary order for cases in which an employer has refused
to bargain because he desired to challenge the validity of the certification , namely
that the Company cease and desist from so refusing, that it bargain upon request,
and that it post an appropriate notice. See N.L.R.B. v. Express Publication Company,
312 U.S. 426, 439. A notice in the simplest possible terms is required in this case.
Accordingly , upon the foregoing findings and conclusions , and upon the entire
record in the case, I recommend issuance of the following:
ORDER
L. L. Glascock, Inc., its officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Construction and General Laborers'
Local No. 619, affiliated with International Hod Carriers ', Building and Common
Laborers ' Union of America , AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All construction laborers employed by L. L. Glascock , Inc., in and around
Meridian, Mississippi , excluding all other employees , professional employees,
guards, watchmen , and supervisors as defined in the Act.
77 OPERATING COMPANY 927
(b) In any manner interfering with the efforts of the above-named Union to bar-
gain collectively with the above-named Company 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 above-described unit , and embody in a
signed agreement any understanding reached.
(b) Post at its office at Meridian, Mississippi, copies of the attached notice marked
"Appendix." 3 Copies of such notice, to be furnished by the Regional Director for
Region 15, after being signed by an authorized representative of the Respondent,
shall be posted immediately upon the 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 such notices are not altered, defaced, or covered by any
other material.
(c) Notify the said Regional Director , in writing , within 20 days from the date of
the receipt of this Decision, what steps the Respondent has taken to comply
herewith .4
s In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further 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."
4 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
John Hammonds and Roy Winegardner , Partners, d/b/a 77
Operating Company , d/b/a Holiday Inn Restaurant and
Food Store Employees Union , Local #347, Amalgamated Meat
Cutters and Butcher Workmen of North America , AFL-CIO.
Cases 9-CA-3554 and 3595. September 7,1966
DECISION AND ORDER
On January 21, 1966, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondents had not
engaged in certain other unfair labor practices, and recommended
that the allegations of the complaint pertaining thereto be dismissed.
Thereafter, the General Counsel filed limited exceptions to the Trial
Examiner's Decision and ,a supporting brief.
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 and the entire record in these cases, including
160 NLRB No. 68.