Vari-Tronics Co.

National Labor Relations Board - Board Decisions

Jul 25, 1977

230 N.L.R.B. 1139 (N.L.R.B. 1977)

VARI-TRONICS COMPANY
Vari-Tronics Company, Inc. and Warehousemen,
Garage and Service Station Employees Local No.
334, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent. Case 19-CA-
7208
July 25, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 10, 1975, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, except
as modified herein,' and to adopt his recommended
Order.
Chairman Fanning and Member Penello agree
with the Administrative Law Judge that the Respon-
dent has violated Section 8(a)(5) and (1) of the Act
by refusing to bargain collectively with the Union
herein, but for different reasons. They stated in their
dissenting opinion in Bekins,2 a representation
proceeding, that they would leave questions relating
to the "willingness or capacity fairly to represent all
employees in the bargaining unit, to be resolved in
other proceedings under the Act." 3 (Emphasis
supplied.) In the instant case, they do not believe that
the Respondent's allegations establish a prima facie
case with regard to the willingness or ability of the
Union herein to fairly represent the employees in the
unit for which it has been certified as the exclusive
representative.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Vari-Tronics,
Inc., Spokane, Washington, its officers, agents,
'Member Jenkins would adopt the Decision of the Administrative Law
Judge in toro.
2 Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974).
3 Supra at 148.
230 NLRB No. 171
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Administrative Law Judge: The com-
plaint, issued August 26, 1974, alleges that Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Sections 8(a)(Xl1) and (5) and 2(6) and
(7) of the Act.
Specifically, the complaint alleges that, since about June
11, 1974, Respondent has refused to bargain collectively
with the Union as the exclusive representative of employ-
ees in an appropriate unit, and, since July 16, 1974, has
refused to furnish the Union with information relevant to
collective bargaining, thereby violating Section 8(a)(1) and
(5) of the Act.
Respondent's answer, filed on September 5, 1974, admits
generally the procedural and jurisdictional allegations of
the complaint but denies the Union's status as the certified
bargaining representative of its employees within the
meaning of the allegations of the complaint.
By way of its first, separate and affirmative defense,
Respondent challenges the Union's majority status, the
validity and conduct of the election, the Regional Direc-
tor's Report on Objections and Certification of Represen-
tative, and the Board's refusal to consider Respondent's
exceptions to the Regional Director's Report on Objections
and Certification. As a second, separate and affirmative
defense, Respondent protests the Regional Director's
failure to hold a hearing on Respondent's Objections to the
Conduct of the Election. Finally, as a third, separate and
affirmative defense, Respondent alleges that the Union has
engaged in invidious discrimination, and has breached its
duty to represent persons fairly on the basis of sex, race,
alienage, and national origin, and that the certification
should, therefore, be revoked and the complaint dis-
missed.'
On September 13, 1974, the General Counsel filed a
motion for a bill of particulars with regard to Respondent's
third affirmative defense, alleging invidious discrimination
and breach of duty of fair representation. On about
September 24, Respondent filed its opposition to the
motion for bill of particulars on the ground that the
evidence sought to be adduced could only be procured by
the service of a subpena and subpoena duces tecum on an
officer of the Union, requiring the production of (a)
membership lists indicating the race and sex of all members
and officers; (b) present and preceding union constitutions
and bylaws; (c) pension plan agreements; (d) health and
welfare agreements; (e) lists of individuals who had applied
for membership; (f) certain collective-bargaining agree-
'Designations herein are as follows: The General Counsel, unless
otherwise stated or required by the context, his representative at the
heanng; Vari-Tronics Company, Inc., Respondent, the Company or the
Employer; Warehousemen, Garage and Service Station Employees Local
No. 334, affiliated with the International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America, Independent, the
Charging Party or the Union; the National Labor Relations Act, as
amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151, et seq.), herein called
the Act; the National Labor Relations Board. The original charge was filed
on July 12, 1974, and duly served.
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments of the union; and (g) certain other documents
containing evidence bearing on the issue. On September
30, 1974, Administrative Law Judge Allen Sinsheimer, Jr.,
issued an order denying General Counsel's motion for a
bill of particulars, with leave to renew the same before the
Administrative Law Judge designated to conduct the
hearing.
On October 11, 1974, the General Counsel filed a motion
to transfer and continue the matter before the Board, and
for summary judgment against Respondent, based on the
pleadings and related documents submitted therewith. In
the alternative, the General Counsel requested leave to
appeal the Administrative Law Judge's order denying the
motion for a bill of particulars. On October 25, Respondent
filed its opposition to the General Counsel's motion.
On March 13, 1975, the Board issued its Order, denying
the General Counsel's motion for summary judgment, but
ordering Respondent "to particularize its affirmative
defense to the extent necessary to indicate whether it is
relying upon: (I) discriminatory membership policies
based upon race, alienage, or national origin, and/or (2)
the failure to fairly represent employees in the unit
described in the complaint on the basis of race, alienage,
national origin or sex, and to state the particular character
of the discrimination, its appropriate dates and locations,
objects of the discrimination, sections of union constitu-
tions, by-laws or collective-bargaining agreements relied
on."
On April 21, 1975, the General Counsel moved to strike
the third, separate and affirmative defense in Respondent's
answer on the ground that Respondent had failed to
comply with the Board's order of March 13, 1975.
On April 22, 1975, in support of its third, separate and
affirmative defense and, pursuant to the Board order,
Respondent submitted the following particulars:
I. Labor Organization Annual Report (LM-2) filed
on February 15, 1974 by Local 334 and Amended
Report filed June 21, 1974 show no females, no
minorities as officers or trustees or in positions of
leadership or responsibilities.
2. Labor Organization Annual Report (LM-2) filed
March 29, 1974 by the International Brotherhood of
Teamsters reveals similar data.
3. Collective bargaining contracts between Local
334 and various companies, including the following:
1) Pacific Trail Sportswear
2) Comet Corporation
3) Calkins Manufacturing Company
4) The Bon Marche
5) Tom E. Day, Inc.
contain no provisions prohibiting discrimination be-
cause of race, alienage, origin or sex.
4. Collective bargaining proposals submitted by
Local 334 to Vari-Tronics Company, Inc., fail to
include any proposals prohibiting discrimination be-
cause of race, alienage, national origin or sex.
5. Further evidence regarding said defense is in the
possession of the Charging Party from whom Respon-
dent proposes to elicit such information through the
subpoena process.
On April 23, 1975, the General Counsel filed a supple-
mental motion to strike on the ground that the particulars
did not comply with the Board's order, and that it is
evident from the concluding paragraph of the particulars
that Respondent is engaging in a "fishing expedition." On
April 25, 1975, Respondent filed its opposition to the
motion and supplemental motion to strike, asserting that it
was relying on "discriminatory membership policies as well
as the Union's failure to fairly represent employees in the
unit described in the Complaint," that the particulars
complied with the Board's order, and reiterating Respon-
dent's position, stated in the opposition to motion for a bill
of particulars, that certain evidence can be adduced only
through subpena of union records and oral testimony.
By telegraphic order of West Coast Presiding Judge
James T. Barker, transmitted May 14, 1975, General
Counsel's motion and supplemental motion to strike were
denied, without prejudice to renewal of the motion before
the Administrative Law Judge presiding at the hearing.
Pursuant to due notice, a hearing was held before me on
May 20, 1975, at Spokane, Washington. The General
Counsel, Respondent, and the Union, were all represented
by counsel. At the outset of the hearing, the General
Counsel moved to strike the last paragraph of Respon-
dent's particulars on the ground that it did not comply with
the Board's order of March 13, 1975, to "particularize its
affirmative defense" in the manner described therein. The
motion to strike was denied. Thereafter, the General
Counsel moved to strike the particulars in their entirety.
The General Counsel's motion to strike the third, separate
affirmative defense in Respondent's answer, as well as
Respondent's particulars, was denied on the ground that, if
proven, the facts alleged could constitute a defense to the
complaint. Relying on the admissions in Respondent's
answer to the allegations of the complaint, the General
Counsel rested without offering any testimony or further
evidence.
Prior to the hearing, Respondent served on the Union
and one of its officers subpoenas ad testificandum and duces
tecum, calling upon the Union to produce some 19
enumerated items, including the Union's charter, minutes
of union meetings, copies of collective-bargaining agree-
ments, and other matters relating to the internal operation
of the Union. The Union declined to comply with the
subpenas, and Respondent made no effort to obtain
enforcement of the subpenas. Nor did the General Counsel
or the Union move to quash the subpenas.
After extensive oral argument on the record, and an
opportunity to make an offer of proof, which it declined,
Respondent rested without offering any evidence. All
parties, however, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce oral and documentary evidence relevant and material
to the issues, to argue orally, and to file briefs and proposed
findings of fact and conclusions of law. As has been
indicated, all parties argued their respective positions
orally on the record. The parties were granted until June
16, 1975, to file briefs and proposed findings of fact and
conclusions of law.
1140
VARI-TRONICS COMPANY
No briefs or proposed findings of fact or conclusions of
law have been filed by any of the parties. Upon the record
thus made, and, based on the oral arguments of the parties,
which have been carefully considered, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein, Vari-
Tronics Company, Inc., a California corporation, has been
engaged in the manufacture of electronic equipment and
refurbishing of materials for telephone copies, at its
location in Spokane, Washington. During the year preced-
ing issuance of the complaint, a representative period, in
the conduct of its business operations, Respondent derived
gross revenues amounting to in excess of $500,000, and
purchased and caused to be transported and delivered to
its Spokane, Washington, place of business, directly from
points outside the State, goods and services valued in
excess of $50,000.
The complaint further alleges, Respondent's answer
admits, and it is hereby found that, at all times material
herein, Respondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Warehousemen, Garage and Service Station Employees
Local No. 334, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, the Union herein, is,
and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Bargain
i. The appropriate unit and majority
representation therein
As Respondent's answer admits, the Union was certified
by the Regional Director on April 24, 1974, in Case 19-
RC-6977, as the exclusive representative for the purposes
of collective-bargaining of Respondent's employees in the
following appropriate unit:
All production and maintenance employees, including
truck drivers, service repairmen, material handlers, and
lead employees who are employed by the Employer at
his business address of Spokane Industrial Park,
Building 5, Space E., Spokane, Washington, who were
employed during the payroll period ending March 1,
1974, excluding all office and clerical employees,
salesmen, watchmen, guards, professional employees,
and supervisors as defined in the Act, as amended.
While admitting the appropriateness of the unit, within
the meaning of Section 9(b) of the Act, Respondent denies
that the Union has since been, or is now, the duly certified
bargaining representative of all the employees in said
appropriate unit, within the meaning of Section 9(a) and
(cX1) of the Act.
Respondent's denial of the Union's status as exclusive
bargaining representative is based on its Objections to the
Conduct of the Election, the Regional Director's Report on
Objections and Certification of Representative, and the
action of the Board in denying the Employer's exceptions
to the Regional Director's Report and Certification.
The Employer's Objections to the Conduct of the
Election, filed on March 26, 1974, as supplemented by
telegram on March 29, 1974, set forth as grounds therefor
that, prior to the election, the Union had unlawfully
influenced employees by offering to waive initiation fees
and similar conduct; made false representations concern-
ing the amount, eligibility for, and availability of strike
benefits; falsely represented that the Union had never gone
on strike against an employer; promised and represented
that there would never be a strike, and that their wages
would be substantially increased if they voted for the
Union; and had disseminated false and untrue information
about the Company and management representatives.
After investigation, and for reasons fully stated in his
report, the Regional Director overruled all the Employer's
objections, and certified the Union as exclusive representa-
tive of all employees in the appropriate unit. Thereafter,
the Employer filed with the Board exceptions to the
Regional Director's Report and Certification. On May 7,
1974, the Board declined to consider the Employer's
exceptions, since the election had been held pursuant to an
Agreement for Consent Election, providing in part:
. . . the determination of the Regional Director shall
be final and binding upon any question ... raised by
any party hereto relating in any manner to the election
The method of investigation of objections and chal-
lenges, including the question whether a hearing should
be held in connection therewith, shall be determined by
the Regional Director, whose decision shall be final and
binding.
2. The demand and refusal to bargain
The complaint alleges, Respondent's answer admits, and
it is hereby found that, on about June 11, 1974, the Union
requested Respondent to meet and bargain with it
regarding wages, hours, and working conditions of employ-
ees in the appropriate unit, above described, and that, on
July 16, 1974, the Union requested certain information
from Respondent relevant to collective bargaining. The
complaint further alleges, Respondent's answer admits,
and it is hereby found that, at all times since June 11, 1974,
Respondent has refused, and continues to refuse, to
recognize or bargain with the Union as the exclusive
collective-bargaining representative of its employees in the
appropriate unit, above described. Respondent places its
refusal to bargain with the Union on the separate
affirmative defenses set forth in its answer to the com-
plaint.
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to its first and second affirmative defenses,
Respondent contends that, notwithstanding the terms of
the agreement for consent election, providing that the
method of investigation of objections and challenges,
including the question of whether a hearing should be held,
shall be determined by the Regional Director, whose
decision shall be final and binding, it was nevertheless
entitled to an evidentiary hearing on its objections. It has
long been the policy of the Board that it will not set aside a
Regional Director's rulings under an agreement for consent
election unless they are arbitrary or capricious, a conten-
tion not specifically raised here.
Although there appears to be no unanimity in the courts
as to whether an employer is entitled to a postelection
hearing on objections, it has been held that:
In order to obtain a post-election hearing on objec-
tions, the objecting party must supply prima facie
evidence and present substantial and material factual
issues which would warrant setting aside the election.
[Citations omitted] Whether or not the objecting party
has presented such issues is a matter of law and
ultimately a question for the courts. [Citations omitted]
Basically, the test is whether false .or misleading
statements had the effect of interfering with a free
choice of bargaining representatives. [Citations omit-
ted] The burden of proving such interference is of
course on the objecting party. [Citation omitted] The
Company should, therefore, be allowed to present such
proof at a hearing inasmuch as the evidence submitted by
it, primafacie, shows not only deliberate misrepresenta-
tion but misrepresentation which by its nature would
have the effect of changing the election results.2
(Emphasis supplied.)
Elsewhere, it has been said:
The Board has a wide degree of discretion in the
conduct of certification elections and a hearing is
required to determine whether these criteria have been
satisfied only where the opposing party has raised
"substantial and material factual issues." We have said:
To raise such issues, . . . [i]t is incumbent upon
the party seeking a hearing to clearly demonstrate
that factual issues exist which can only be
resolved by an evidentiary hearing. The excep-
tions must state the specific findings that are
controverted and must show what evidence will
be presented to support a contrary finding or
conclusion.... Mere disagreement with the
Regional Director's reasoning and conclusions
does not raise "substantial and material factual
issues".... The Board is entitled to rely on the
report of the Regional Director in the absence of
2 N.L.R. B. v. Mr. Fine, Inc., 516 F.2d 60, 63 (C.A. 5, 1975).
:1 N.L. RB. v. Modine Manufacturing Co., 500 F.2d 914, 916 (C.A. 8,
1974). enfg. 203 NLRB 527 (1973). Although in this case, involving a contest
between two unions, employer raised no objection to the prevailing union's
conduct until after the Regional Director's report was submitted, the court's
holding did not depend on this factor.
Savair Manufacturing Co., 414 U.S. 270 (1973).
' See N.L.R.B. v. Bancroft Manufacturing Company, Inc., 516 F.2d 436
(C.A. 5. 1975).
specific assertions of error, substantiated by offers
of proof. [Cases cited]
In each of the cases cited by respondent in which we
held that a hearing was required, the objecting party
offered evidence which established factual questions
which were ripe for exploration and examination in an
adversary hearing and on which the outcome turned. 3
In the instant case, as to Objection I, involving waiver of
initiation fees, the Regional Director held that the action of
the Union did not contravene the principles of the Savair
case,4 and that the Employer had presented no evidence,
nor had the investigation disclosed that the "discounted
initiation fee was in any way contingent upon whether or
not an employee signed an authorization card prior to the
election." 5 Thus, the Regional Director found, in effect,
that the Employer had failed to supply prima facie
evidence, or submit substantial and material factual issues
which would warrant setting aside the election. As to
Objection 2, the Regional Director found that the state-
ments to employees by the Union representative did not
constitute conduct prejudicial to a fair election, and that
the Employer had failed to come forward with any
evidence during the course of the investigation in support
of that objection. The Regional Director overruled Objec-
tions 3 and 4, alleging promises by the Union to employees
to influence their vote, and the dissemination of false and
untrue information about the Company and management
representatives, on the ground that his investigation
disclosed no evidence in support of said objections, and
that the Employer had submitted employees, such evi-
dence. As has been held:
To be entitled to a hearing the objector must supply
the Board with specific evidence which, prima facie,
would warrant setting aside the election. [Citations
omitted] As to how specific the evidence must be the
Court in United States Rubber Company v. N.L.R.B.
[373 F.2d 602 (C.A. 5)], said the objections must not be
"nebulous and declamatory assertions, wholly unspeci-
fied, nor equivocal hearsay." [Id. at 606.]6
As the Board has recently held, "mere allegations of
wrong-doing do not constitute evidence adequate to
support an objection, whether in this or in any other
context. Evidence must consist of facts, not mere
accusations which yet remain to be proven." 7
There has been no showing that the Employer produced
evidence or offered to prove, by affidavits or otherwise, the
allegations contained in its Objections to the Election. It is,
therefore, found that, under the circumstances disclosed by
6 Luminator Division of Gulon Industries, Inc. v. N. LRB., 469 F.2d 1371.
1374 (C.A. 5, 1972), where the court held that this standard of specificity
had been met in the objections and affidavits submitted to the Regional
Director.
G7 rants Furniture Plaza, Inc. of West Palm Beach, Fla., 213 NLRB 410
(1974).
1142
VARI-TRONICS COMPANY
this record, the Employer was not improperly denied a
postelection hearing on its objections.
Turning to Respondent's third affirmative defense, the
so-called Mansion Houses defense, the Board has recog-
nized that it must consider allegations that a labor
organization excluded persons from membership on the
basis of race, alienage, or national origin. The issue here,
however, is whether Respondent has made a prima facie
showing that the Union is guilty of invidious discrimina-
tion. In support of its third, separate and affirmative
defense, and in response to a motion for a bill of
particulars, Respondent has alleged that the labor organi-
zational annual reports, for both the local and the
International unions disclose no females, or members of
minorities serving as officers, trustees, or in positions of
leadership or responsibilities; that collective-bargaining
agreements between the Union and five named employers,
as well as proposals submitted by the Union to Respon-
dent, contain no provisions prohibiting discrimination
because of race, alienage, origin or sex.
As to the first of these allegations, the fact that the
Annual Reports may contain the names of no females or
members of minority groups as officers or trustees, does
not, standing alone, establish that such persons have been
excluded from serving in any official capacity for the
reasons stated or that the Union has engaged in a pattern
or practice of discriminating against them or others on
those grounds. There was a complete absence of any
showing that any of such individuals ever sought to hold
office and were prevented from doing so because of
discrimination on account of race, alienage, origin or sex.
Moreover, there are too many perfectly legitimate reasons
which would explain the absence from the Union's roster
of officers of females or members of minorities, as, for
example, valid eligibility requirements for candidates for
office under the Union's constitution and bylaws.
With regard to the absence from any contracts between
the Union and employers or a proposed contract with
Respondent, of a provision prohibiting discrimination on
the grounds asserted, the law imposes no requirement that
parties to a collective-bargaining agreement or, for that
matter, any other contract shall explicitly agree that they
will comply with all requirements of the law.9
The mere absence from collective-bargaining agreements
between this Union and other employers or the failure to
include in proposals submitted to Respondent prohibitory
language is insufficient to establish a pattern or practice of
discrimination based on race, alienage, national origin, or
sex.
This leaves for consideration Respondent's contention
that it is entitled to investigate by means of subpenas the
I N.L.R.B. v. Mansion House Center Management Corporation, 473 F.2d
471 (C.A. 8, 1973); see also Bekins Moving & Storage Co. of Florida, Inc.. 211
NLRB 138 (1974).
9 Cf., e.g., N. L. R. B. v. Mountain Pacific Chapter of The Associated General
Contractors, Inc., et al., 270 F.2d 425. 431 (C.A. 9, 1959), ("A contract which
is fair on its face is not unlawful in and of itself simply because it does not
contain clauses prohibitory of illegal action."); see also Local 357,
International Brotherhood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America [Los Angeles-Seattle Motor Express] v. N.LR.B.. 365
U.S. 667 (1961).
0' Nor is there any allegation of contention that the Union has been in
violation of the Civil Rights Act, Title VII.
conduct of the Union's business to determine whether, in
fact, the Union has engaged in a pattern and practice of
discrimination based on race, alienage, national origin, or
sex. Respondent has made no primafacie showing, nor has
it offered to prove, by affidavits, testimony, statistical data
reflecting an imbalance of minority groups and females as
compared to other union members or in light of the
demographic nature of the area involved, that the Union
had engaged in a pattern and practice of discrimination
based on the factors enumerated.10 Respondent has done
no more than to allege that the Union has engaged in such
invidious practices, and demanded an opportunity to
examine internal records of the Union in the expectation
that it might discover evidence in support of its allegations.
The Board's holding in Grants," though a representation
case, is instructive. "[MJere allegations of wrongdoing do
not constitute evidence adequate to support an objection,
whether in this or in any other context. Evidence must
consist of facts, not mere accusations which yet remain to
be proven. To withhold a certification we must be
persuaded by affirmative evidence of a factual nature, and
even to direct a hearing on the basis of an objection there
must be prima facie factual proof submitted to our
Regional Director of a kind which would be admissible
into evidence at a hearing and subjected to evaluation as to
its weight and probative force. The unproven allegations of
a complaint, 2 whether filed by an individual or by a
governmental agency, do not constitute proof, or even
competent evidence, under well-established rules of evi-
dence."
The Court, in Mansion House, 13 envisaged the possibility
that an employer might resort to a union's alleged racial
discrimination as a pretext for refusing to bargain. It
observed, "The law in this area needs to be more fully
developed by the Board. Prophylactic procedures may be
needed by the Board to deter pretextual refusal to bargain
with an authorized unit on the alleged grounds that the
union is practicing discrimination in its membership. We
leave this for the Board to work out." (Id. 474.) The criteria
enunciated in the Board's Decision in Grants14 should
serve as a start in this direction.
To permit an employer to challenge a Board certification
on the mere allegation, without, at least, a prima facie
showing, that a union has engaged in a pattern or practice
of discrimination based on race, alienage, national origin,
or sex, would open the door to attack by any recalcitrant
employer who may seek to avoid or delay collective
bargaining after the union has been certified, thereby
depriving employees of their right to representation for an
unreasonably prolonged period, without legal justification.
1i Grants Furniture Plaza, Inc. of West Palm Beach Fla., 213 NLRB 410
(1974).
12 The reference is to a Department of Justice complaint against the
International, with which the Union is affiliated, also adverted to by
Respondent's counsel in this proceeding. In this connection, and on the
issue of the subpena, see N. L R. B. v. Bancroft Manufacturing Company, Inc.,
516 F.2d 436 (C.A. 5, 1975).
13 N.LR.B. v. Mansion House Center Management Corporation, 473 F.2d
471, 474-475 (C.A. 8. 1973).
1i Grants Furniture Plaza, Inc. of West Palm Beach, Fla.. 213 NLRB 410
(1974).
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This course could ultimately lead to the very industrial
strife the Act was designed to prevent.
Upon the basis of the foregoing and the entire record, it
is found that Respondent has not made a prima facie
showing requiring the Union to produce its books and
records so that Respondent may endeavor to establish the
allegations of its third, separate and affirmative defense,
and that Respondent has not proved or offered to prove by
competent and admissible evidence that the Union has
engaged in a pattern and practice of discrimination
disqualifying the Union from retaining the Board's certifi-
cation.
It is, therefore, found that, at all times material herein,
the Union has been, and now is, the duly certified and
exclusive representative of all the employees in the unit
found appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
It is further found that, on about June 11, 1974, the
Union requested Respondent to meet and bargain with it
regarding wages, hours, and working conditions of employ-
ees in the unit described above, and, on July 16, 1974,
requested certain information from Respondent relevant to
collective bargaining, and that on or about June 11, 1974,
and at all times thereafter, Respondent has refused, and
continues to refuse, to recognize or bargain with the Union
as the exclusive bargaining representative of its employees
in the appropriate unit described above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, 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 Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has refused to
bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit
despite the Board's certification of the Union as such
representative. It will, therefore, be recommended that
Respondent bargain collectively with said Union upon
request.
It has also been found that Respondent has refused to
furnish the Union with requested information essential to
collective bargaining with Respondent. It will, therefore, be
recommended that Respondent furnish the Union with
such information upon request.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Vari-Tronics Company, Inc., Respondent herein, is,
and at all times material herein has been, an employer
engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Warehousemen, Garage and Service Station Em-
ployees Local No. 334, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, the Union herein,
is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, includ-
ing truckdrivers, service repairmen, material handlers, and
lead employees who are employed by the Employer at his
business address: Spokane Industrial Park, building 5,
space E., Spokane, Washington, who were employed
during the payroll period ending March 1, 1974, excluding
all office and clerical employees, salesmen, watchmen,
guards, professional employees, and supervisors as defined
in the Act, as amended, constitute, and at all times material
herein have constituted, a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
4. Warehousemen, Garage and Service Station Em-
ployees Local No. 334, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, was, on April 24, 1974, and at all
times since has been, the duly certified exclusive bargaining
representative of all the employees in said appropriate unit
within the meaning of Section 9(a) and (cX)() of the Act.
5. By refusing, on or about June 11, 1974, and at all
times thereafter, to bargain collectively with Warehouse-
men, Garage and Service Station Employees Local No.
334, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, the Union herein, as the exclusive
representative of Respondent's employees in the aforesaid
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
1144
VARI-TRONICS COMPANY
ORDER 15
The Respondent, Vari-Tronics Company, Inc., Respon-
dent herein, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with
Warehousemen, Garage and Service Station Employees
Local No. 334, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, as the exclusive bargain-
ing representative of all its employees in the appropriate
unit described herein with regard to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
(b) Failing and refusing to furnish the Union requested
information relevant to collective bargaining.
(c) In any like or similar manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist Warehousemen, Garage and Service Station
Employees Local No. 334, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing and to engage in other
protected concerted activities for the purposes of collective
bargaining or other mutual aid or protection, as guaranteed
in Section 7, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act, as amended.
2. Take the following affirmative action, which it is
found, will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Warehouse-
men, Garage and Service Station Employees Local No.
334, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, as the exclusive representative of all
its employees in the appropriate unit described herein, with
respect to rates of pay, hours of employment, and other
terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Upon request, furnish the Union with information
requested relevant to collective bargaining.
(c) Post at its place of business in Spokane, Washington,
copies of the attached notice marked "Appendix." 16
Copies of this notice, on forms provided by the Regional
Director for Region 19, shall, after being signed by
Respondent's duly authorized representative, be posted by
t5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided, in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
is In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Respondent 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain collectively
with Warehousemen, Garage and Service Station
Employees Local No. 334, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, as the
exclusive representative of our employees in the
appropriate unit described below.
WE WILL NOT refuse to furnish the Union the
information requested relevant to collective bargaining.
WE WILL NOT in any like or similar manner interfere
with, restrain, or coerce our employees in the right to
self-organization, to form labor organizations, to join or
assist Warehousemen, Garage and Service Station
Employees Local No. 334, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, or
any other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of mutual
aid or protection or to refrain from any and all such
activities except to the extent that said right may be
affected by an agreement requiring membership in a
labor organization as provided in the proviso of Section
8(aX3) of the Act, as amended.
WE WILL, upon request, bargain collectively with
Warehousemen, Garage and Service Station Employees
Local No. 334, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, as the exclusive
representative of all our employees in the bargaining
unit described below with respect to rates of pay, hours
of employment, and other conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement. The appropriate
bargaining unit is:
All production and maintenance employees,
including truck drivers, service repairmen, materi-
al handlers and lead employees who are em-
ployed by the Employer at his business address of
Spokane Industrial Park, Building 5, Space E.,
Spokane, Washington, who were employed dur-
ing the payroll period ending March 1, 1974,
excluding all office and clerical employees,
salesmen, watchmen, guards, professional em-
1145
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and supervisors as defined in the Act, as above-named labor organizations or any other labor
amended. organization.
All our employees are free to become and remain, or VARI-TRONICS COMPANY,
refrain from becoming and remaining, members of the INC.