Duvernoy & Sons, Inc., 538 (1969)

Duvernoy & Sons, Inc. and Bakery & Confectionery Workers International Union of America, Local No. 3 and Bakery & Confectionery Workers International Union of America, Local 350, Party in Interest Duvernoy & Sons, Inc. and Bakery & Confectionery Workers International Union of America, Local No. 3, Petitioner. Cases 2-CA-11690 and 2-RC-15034

June 30, 1969

DECISION, ORDER, AND DIRECTION OF SECOND RUNOFF ELECTION

BY MEMBERS FANNING, BROWN, AND JENKINS On April 29, 1969, Trial Examiner William W.

Kapell issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of those allegations of the complaint. In addition, the Trial Examiner found that the Respondent had engaged in objectionable conduct prior to the runoff election held in Case 2-RC-15034, and recommended that the said election be set aside, all as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and 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 these cases to a threemember 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, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations 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 Respondent, Duvernoy & Sons, Inc.,

New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations other than those found by the Trial Examiner.

IT IS HEREBY FURTHER ORDERED that the runoff election conducted on November 21, 1968, in Case 2-RC-15034, be and it hereby is, set aside.

[Direction of Second Runoff Election' omitted from publication.] 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R.B v. Wyman-Gordon Company, 394 F 2d 759 Accordingly , it is hereby directed that an election eligibility list, the containing names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 2 within 7 days after the date of issuance of the Notice of Second Runoff Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.

TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO AN ELECTION

STATEMENT OF THE CASES

WILLIAM W. KAPELL, Trial Examiner: Case 2-CA-11690, a proceeding under 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard at New York, New York, on February 17, 1969, with all parties participating pursuant to due notice upon a complaint' issued by the General Counsel on December 30, 1968.2 The complaint, in substance, alleges that Duvernoy & Sons, Inc , hereafter referred to as Respondent or Company, engaged in unfair labor practices in violation of Section 8(a)(1) and (2) of the Act by unlawful interrogation of, and promise of an economic benefit to, an employee and by a threat of economic reprisal to the employees Respondent in its duly filed answer denied the commission of any alleged unfair labor practices.

In Case 2-RC-15034, pursuant to a Stipulation for Certification Upon Consent Election of October 11, an election was held on November 13, in the unit composed essentially of Respondent's office clerical and order department employees and switchboard operator to determine whether said employees desired to select Local 3 or 350 as their exclusive bargaining representative or whether they desired no union representation. A tally of ballots cast showed that neither Union nor no union received a majority of the votes cast. A runoff election was thereafter conducted on November 21, providing for a selection between either Local. A tally of 30 ballots cast indicated 16 votes for Local 350, 14 for Local 3, and 2 ballots challenged.' On November 26, Local 3 filed timely objections to the election alleging that the Company's conduct impaired and influenced the employees' freedom 'Based upon a charge filed by Bakery & Confectionery Workers International Union of America, Local No. 3, hereafter referred to as Local 3.

'All dates hereafter refer to the year 1968 unless otherwise noted 'The challenge by Local 350 to the ballot of employee Migdaha Urquiza was overruled by the Acting Regional Director for Region 2, and at the 177 NLRB No. 83

DUVERNOY & SONS, INC. 539 of choice in the runoff election and requesting that the election be set aside and that a new election be held Thereafter, the heanng on the objections to the runoff election was consolidated for purpose of hearing with the hearing in Case 2-CA-11690 because the determination of the merits of the objections was germane to the issues raised in the complaint in the latter case.

All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from the General Counsel and Respondent and have been carefully considered. Upon the entire record in the cases, and from my observation of the witnesses, I make the following FINDINGS OF FACT

I COMMERCE

Respondent, a corporation duly organized under the laws of the State of New York, maintains an office and place of business in the city and State of New York, where at all times material herein it has been engaged in the production, sale, and distribution of bread, rolls, cakes, and related products During the past year, which period is representative of its annual operations generally,

Respondent, in the course and conduct of its business operations, produced, sold, and distributed at its place of business, products valued at in excess of $50,000, of which products valued in excess of $50,000, were shipped from said place of business in interstate commerce directly to States of the United States other than the State of New York I find, and Respondent admits, that at all times material herein it has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act.

Respondent admits, and I find, at all times material herein that Locals 3 and 350 have been labor organizations within the meaning of Section, 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES

As related above, following the indecisive election on November 13, a runoff election was held on November 21 between Locals 3 and 350 The complaint alleges that, in violation of Section 8(a)(1) and (2) of the Act,` Respondent (I) through Harold Saxe, its treasurer, interrogated an employee concerning how said employee...