Wallace Co., Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1969

174 N.L.R.B. 416 (N.L.R.B. 1969)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wallace Company, Inc. and International Union of
United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, Local
,Union 111. Case 23-CA-3058
February 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 29, 1968, Trial Examiner Horace A.
Ruckel issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the alleged unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed an answering brief to the General Counsel's
exceptions.
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.
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, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations2 of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
'While Trial Examiner's findings with respect to the poll of
employees do not so state, we note that the record establishes that the poll
substantially satisfied all of the preconditions to lawful polling laid down in
Strucksnes Construction Co, Inc., 165 NLRB No. 102, including the
giving of assurances to employees that their indication of preference would
not prevoke any reprisals.
'In the absence of exceptions, the Board adopts pro forma the Trial
Examiner's recommendation that that portion of the complaint relating to
a wage increase extended to Marvin Dureseau be dismissed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HORACE A. RUCKEL,' Trial Examiner : This case comes
before me upon a complaint of unfair labor practices
issued August 9, 1968, by the General Counsel of the
National Labor Relations Board , through the Board's
Regional Director for Region 23 (Houston, Texas),
against Wallace Company, Inc , herein called the
Respondent, based upon a charge filed on June 21, 1968,
by International Union of Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, AFL-CIO,
Local Union 111, herein called the Union.
Pursuant to notice, I conducted a hearing on September
12, 1968, at Houston, Texas, at which the parties were
represented by counsel. At the conclusion of the hearing
the parties waived oral argument. Subsequently they filed
timely briefs.
The complaint alleges that Respondent failed to bargain
in good faith with the Union as the representative of its
employees in an appropriate unit in violation of Section
8(a)(5) and (1) of the National Labor Relations Act,
herein called the Act, by (1) conducting a poll of the
employees in the unit on about May 7, 1968, and (2) by
granting a wage increase to an employee without
consultation with the Union. This is the sole issue in the
case.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Wallace Company, Inc., is a Texas corporation having
its principal office and place of business in Houston,
Texas, where it is engaged in the business of wholesale
distribution of refinery, industrial and pipeline supplies.
During the 12 months prior to the issuance of the
complaint the Respondent purchased goods valued in
excess of $50,000 from points outside the State of Texas.
During the same period Respondent made sales in excess
of $50,000 to customers who in turn sold and shipped
goods valued in excess of $50,000 to points outside Texas.
The complaint alleges, and the Respondent's answer
admits, that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting employees
of the Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain
1. The appropriate unit and the Union's certification
as bargaining agent
The Regional Director for Region 23, pursuant to an
election conducted on October 6, 1966, on October 14
certified the Union as the collective-bargaining agent of its
approximately 32 employees in the following described
unit:
All employees of Respondent at its Houston, Texas,
plant including warehouse employees, dispatchers, order
fillers, laborers, truck drivers, shipping clerks, receiving
clerks, warehouse clerks, valve repairmen, pipe cutters,
janitors, maintenance men, and yard leadmen, but
excluding office employees, office clerical employees,
guards, watchmen and supervisors as defined in the Act.
'The transcript of testimony records this erroneously as Horace S
Ruckel It is corrected as indicated
174 NLRB No. 73
WALLACE CO.
2. The contract negotiations
In about January 1967, some 3 months after its
certification, the Union for the first time sought a meeting
with Respondent for the purpose of negotiating a contract,
and thereafter several bargaining meetings were held.
Respondent was represented by R E. Eiser, warehouse
manager, and Thomas W Moore, Jr., its attorney, and
the Union by Ralph Waymire, business agent. The
negotiations seem to have been somewhat desultory, and it
was not until a year later, in January 1968, that a
complete agreement was arrived at by the representatives
of the parties. It was submitted for ratification to the
members of the Union at a meeting on or about March
29. There was some dissatisfaction expressed with a
proposed additional wage increase of 3 cents an hour, and
Waymire suggested that he seek another meeting with
Respondent on this point, leaving the matter of
acceptance of the contract in abeyance= Waymire
admitted while testifying that the Union, in spite of
Waymire's own suggestion that he do so, never thereafter
requested a meeting with the Respondent on the wage
increase, or on any other provision of the proposed
contract.
3. The specific allegations of failure to bargain
(a) The election conducted by the Respondent
In the state of affairs described above, and in light of
the failure of the Union's representative to report back to
the Respondent the result of the union meeting on March
29 concerning the acceptance by the Union of the
contract, and reports from two or more employees to
Eiser that in their opinion the Union no longer
represented a majority of the employees in the unit, the
Respondent hired Gordon Lowther, a certified public
accountant, to conduct an election among the employees
in the unit. The election took place in the plant on May 7.
Each employee in the unit was handed a ballot in the
following form
SECRET BALLOT
FOR CERTAIN EMPLOYEES
WALLACE CO., INC.
Houston, Texas
Do you wish to be represented for purposes of
collective bargaining by -
INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT DRINK
AND DISTILLERY WORKERS, AFL-CIO
'Actually, though not entirely satisfied with the suggested wage raise,
those present , according to Waymire , did favor ratifying the contract
Q. And what was the response of the employees?
A Well, it [sic] was no secret vote taken of it, but the employees
indicated to me - that they more or less favored the contract -
TRIAL EXAMINER They favored the acceptance of the three cents an
hour
THE wITNESS . Right. But I told them to think it over - that I would
go back to the Company and try to get a little more money out of them
MARK AN "X" IN THE SQUARE OF YOUR
CHOICE
Yes No
417
When the employee finished marking his ballot he
folded it and deposited it in a ballot box on a table, on
one side of which the voter sat and on the other side,
Lowther. While the conditions for privacy were not as
antisceptic as those provided in a Board conducted
election, they were not too crude an approximation.
Lowther testified credibly that he did not see how any
employee marked his ballot, and certainly the result of the
vote argues against any intimidation. For when the ballots
were counted in the presence of Eiser and Moore, and two
representatives of the employees, it was found that the
vote was' 17 "Yes" and 15 "No."
Lowther certified the result of the voting to
Respondent, as the result of which Attorney Moore, on
the instructions of Respondent, on May 20 forwarded the
complete contract, consisting of 24 pages, to the Union
with a covering letter stating that it had been agreed to by
Respondent's officials and suggesting that the Union sign
it, since it was "in culmination of the collective
bargaining." The Union has not done so, and has not to
the date of the hearing replied to Respondent's letter, or
in any other manner got in touch with Respondent.3
According to Eiser's uncontradicted, credited, testimony,
the terms of the proposed contract have not been
effectuated in any way.
(b) The wage raise given Marvin Dureseau
In December 1966, or January , 1967, about the time
that Respondent and the Union began contract
negotiations , employee Dureseau, who had been working
in the pipe yard as a laborer at an hourly rate of $1.70,
was promoted to the position of pipe yard leadman.
Thereafter , and until the present time, he has performed
the duties pertaining to this j ob. At one of the early
negotiating meetings , in about January, 1967, Eiser
informed Waymire that Dureseau was performing the
work of leadman and asked the Union ' s permission to
increase his wage rate from $1.70 to $2 an hour, which, it
is not disputed , is the minimum rate paid Respondent's
leadmen.° Waymire replied that he did not think the raise
should be given while the parties were engaged in
negotiations , and Eiser acquiesced . At a later time, Eiser
repeated his request, with the same result . Accordingly,
Dureseau's wages were not raised for about a year and a
half, although he continued to perform the work of a
leadman during this time. On May 29, 1968, after the
Union had failed to respond to the Respondent's letter of
'Waymire did state that about May 5 or 6 when he heard that the
election conducted by Respondent was to be held , he called Attorney
Moore and protested it. He testified as follows
TRIAL EXAMINER . And following [the meeting ] you went back to the
Company to see about getting a better offer . . 9
THE WITNESS No - after that was when I had one of the employees
- tell me they were going to have an election.
The inference Waymire seeks to convey is pure rationalization By his own
admission , it was not until 5 weeks after the meeting that he heard about
the election Nor does it explain why he did not get in touch with the
Company after the election when the result favorable to the Union, was
known, or when he received Respondent 's letter of May 20 enclosing the
agreed upon contract for signature
'Three other leadmen are employed in the warehouse and yard at wages
of $2 22, $2.30, and $2.60, respectively
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 20 urging it to sign the complete, proposed contract
agreed upon long since between the parties, Respondent
finally effected the raise.
Conclusions
Under the above-described circumstances I find no
grounds for a finding that Respondent failed to bargain
collectively with the Union "without consultation with the
Union," as the complaint alleges. Respondent did in fact
consult with the Union on two occasions, and put the
raise in effect only after an impasse had been reached. I
shall recommend that the complaint be dismissed as to
this allegation.
Similarly with respect to the other specific allegation of
a failure to bargain: the election conducted on May 7,
1968. In my opinion the Respondent under the
circumstances, as to which there is no dispute, had a
good-faith doubt as to the majority status of the Union.
This proved to be erroneous. But when the ballots were
counted and it appeared that the Union was still favored
by a majority of the unit employees, though by a narrow
margin, the Respondent, in an attempt to resolve a
situation which through no fault of its own had dragged
out for a year and a half since the Union's certification,
and for 4 months after the terms of a contract had been
agreed upon, attempted to cut the Gordian knot by
seeking the Union's signature to the agreement. But
without success. I think there is no question as to the
good faith of Respondent's bargaining either in-general or
in the two specific instances charged in the complaint, and
I so find.
It follows that the complaint should be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. The operations of the Respondent, Wallace
Company, Inc., occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of America,
AFL-CIO, Local 111, is a labor organization within the
meaning of the Act.
3. Respondent has not committed any unfair labor
practice within the meaning of Section 8(a)(5) and (1) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the complaint
be dismissed in its entirety.