Louisville Cap Co.

National Labor Relations Board - Board Decisions

May 5, 1958

120 N.L.R.B. 769 (N.L.R.B. 1958)

LOUISVILLE CAP COMPANY 769
so advised by the Regional Director, proceed to dispose of the
challenged ballots of Gallant and Brites.
[The Board directed that the Regional Director for the First Region
shall, pursuant to National Labor Relations Board Rules and Regu-
lations, within ten (10) days from the date of this Direction, open
and count the ballots of Manuel Rezendes, Lorraine Roy, David
Grew, Jacob Gajewski, George Anness, Armand Zussy, and Romeo
Le Page and serve upon the parties a revised tally of ballots and
issue certification.]
E. J. Lipschutz , Sam Rosenberg, Nathan Lipschutz , Sidney Lip-
schutz, and Frank Lipschutz , d/b/a Louisville Cap Company,
Petitioner and United Hatters, Cap & Millinery Workers Inter-
national Union , AFL-CIO. Case No. 9-RM-159. May 5, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election 1 of the Board,
dated December 9, 1957, an election by secret ballot was conducted on
December 20,1957, under the direction and supervision of the Regional
Director for the Ninth Region among the employees in the appro-
priate unit. Following the election the Regional Director furnished
the parties a tally of ballots which showed that of approximately 190
eligible voters, 4 cast valid ballots for the Union, 150 cast ballots
against any labor organization, and 4 cast void ballots.
On December 30, 1957, the Union filed timely objections to conduct.
affecting the results of the election. In accordance with the Rules
and Regulations of the Board the Regional Director conducted an
investigation of the objections and on February 19, 1958, issued and
served on the parties his report on election, objections to election and
recommendations to the Board in which he found that the Union's
objections raised no substantial or material issues with respect to the
election and recommended that the objections be overruled. On
March 5, 1958, the Union filed timely exceptions to the Regional
Director's report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Leedom and Members Rodgers and Jenkins].
Upon the entire record in this case, the Board finds :
1. In its first two objections, the Union alleged that unfair labor
practices filed by it against the Employer were pending on appeal to
i Not published.
120 NLRB No. 103.
483142-59-vol. 120-5 0
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel at the time of the election and that additional
charges filed by it were summarily dismissed by the Regional Director
prior to the election without any investigation.
The Regional Director found no merit in the first objection because
the Board does not delay elections in representation cases pending the
appeal to the General Counsel of Regional Directors' dismissals of
charges. As for the second, the Regional Director found that the
additional charges were submitted in support of statements previ-
ously given to the General Counsel which had been investigated prior
to the submission of the additional charges. He found that the addi-
tional charges had been properly dismissed and were under appeal to
the General Counsel at the time of the election. Accordingly, he
concluded that both objections were lacking in merit.
The Union in its exceptions reiterates its original objections. We
find them without merit. The Regional Director properly stated the
Board's policy with respect to the conduct of elections pending the
appeal to the General Counsel of dismissals of charges 2 As for the
investigation of the additional charges, under the Act the General
Counsel has final authority with respect to both the investigation.of
charges, and the issuance of complaints .3 The Regional Director
having dismissed the charges and having been. sustained by the Gen-
eral Counsel on appeal,4 the Board will not, consider further these
objections and overrules them.
2. In its third objection, the Union contends that the choice of date
for the election, over its objections, interfered with the election be-
cause it fell on Friday, December 20, 1957, which was the alleged
customary date of the Employer's annual Christmas party B and which
was the last day of the week during which the employees were per-
mitted unusual liberties and were expecting to receive bonds as
Christmas bonuses from the Employer. The Regional Director found
that the date of the Employer's annual Christmas party was usually
the last working day before Christmas rather than the last Friday
before Christmas, as the Union contended, and that the election was
therefore not scheduled on the traditional party date. He also found
that the Employer did not otherwise depart from any of its usual
pre-Christmas practices during the week of the election and concluded
that the Union was not prejudiced by the choice of date.
In its fifth objection, the Union alleged that police came to the
place of the election at the Employer's request to investigate a dis-
2 American Thermos Products Company, 119 NLRB 557.
3 Section 3 (d) ^ % -
4 The Board's administrative records indicate that the Union's appeal to the General
Counsel was denied on'Fe6ruary 26, 1958 - -
5 No contention is made that the 1957 party was in fact held on the day-of-the-elect=
tion and it appears that the party was held on December 24, 1957.
LOUISVILLE CAP COMPANY 771
turbance and remained present for the duration of the voting, standing
next to company officials in two lines through which the employees
had to pass in order to vote. The Regional Director found that the
police were called by the Employer, that there was some evidence that
pickets at the plant had been creating a disturbance, and that the
police did not inject themselves into election issues nor speak to any
employees or voters during the election.
In its exception to both these objections the Union merely reiterates
the allegations of its objections 6 without indicating any supporting
evidentiary basis therefor. We find under the circumstances that the
Union's objections 3 and 5 are lacking in merit and overrule them?
3. In its fourth objection the Union contends that by delivering an
antiunion speech to employees on the same day that beneficiary forms
for the Employer's Christmas bonus bonds were filled out by the
employees, the Employer associated the benefits received with its anti-
union position and interfered with the election. The Regional Di-
rector found that the speech contained no objectionable matter and
that the bonds were given to the employees in accord with the Em-
ployer's customary practice. He recommended that the objection be
overruled. In its exceptions the Union contends that taken in con-
junction with other conduct of the Employer adverted to elsewhere
in its objections the antiunion speech was objectionable becau'se' the
Employer, did not inform the employees that they would continue to
receive Christmas bonds if the Union won the election. The Union
further contends that for many months the employees were informed
by the Employer that they would forfeit whatever amenities of em-
ployment they, enjoyed, including the Savings Bond, if the Union
succeeded in winning the election. The first contention is clearly
without merit, and the second contention, not made as part of the
Union's original objections, is lacking in specificity and unsupported
by any proffer of supporting evidence. Accordingly, we find this
objection without merit and overrule it.
5. The Union in its sixth objection alleged that employees were
released to vote by officers of the company and escorted to the polls
by them. The Regional Director found no merit to this objection,
and the Union filed no exception thereto. Accordingly, we overrule
the Union's sixth objection.
E With respect to the timing of the election , the Union also alleges in its exceptions that
the Regional Director erroneously found that the 1956 Christmas party was held on the last
working day before Christmas and alleges affirmatively that in 1956 the party was held
on Friday, December 21, and the employees thereafter worked on Monday , December 24.
We find it unnecessary to resolve this factual conflict as the Christmas party in 1957 was
not actually held until after the election, and we are satisfied that regardless of past
practice, ,the timing of the election with resp6ct to the party does not constitute valid
cause for setting aside the election herein '
7 See J. Spevak & Co., Inc., 110 NLRB 954, with respect to the fifth' objection. See
Vita Food Products, Inc. of Maryland, 116 -NLRB 1215,-1219. '
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have overruled the Union's objections, and the Union failed
to receive a majority of the valid votes cast, we shall certify the results
of the election.
[The Board certified that a majority of the valid votes was not
cast for United Hatters, Cap & Millinery Workers International
Union, AFL-CIO, and that said organization is not the exclusive
representative of the Employer's employees in the unit heretofore
found appropriate.]
R. K. Baking Corp. and Max Winzelberg
Bakery & Pastry Drivers and Helpers Union , Local No. 802, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America 1 and Max Winzelberg and R. K.
Baking Corp., Party to the Contract . Cases Nos. 2-CA-2067 and
2-CB-578. May 6,1958
SUPPLEMENTAL DECISION AND ORDER
On March 3, 1953, the National Labor Relations Board issued a
Decision and Order in the above-entitled cases,' finding, inter alia,
that R. K. Baking Corp., hereinafter referred to as R. K., had dis-
criminatorily denied employment to Max Winzelberg, and that Bakery
& Pastry Drivers and Helpers Union, Local 802, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, hereinafter referred to as the Union, had unlawfully
caused such discrimination. The Board's order, inter alia, required
R. K. to offer Winzelberg employment as a route salesman, and re-
quired R. K. and the Union jointly and severally to make Winzelberg
whole for any loss of pay he may have suffered as a result of the
discrimination against him, in the manner set forth in the Inter-
mediate Report, dated November 13, 1952, in the section entitled "The
Remedy." R. K. and the Union having failed to comply with the
order of the Board, on May 17, 1954, the Court of Appeals for the
Second Circuit entered a decree approving the Board's finding that
the Union had unlawfully caused R. K. to discriminate against
Winzelberg, and remanding the proceeding to the Board for the
purpose of "hearing and determining the matter of the respondents'
specific obligations under the `reinstatement' and back pay provisions,
of its order." Such a hearing was subsequently held before Trial
Examiner Lloyd Buchanan, and on April 11, 1955, he issued a Supple-
1 The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi-
cate of affiliation revoked by convention action, the identification of the Respondent Union,
is hereby amended.
2 Gottfried Baking Company, et at., 103 NLRB 227.
120 NLRB No. 101.