The Joclin Manufacturing Co.

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ring capital expenditures and as to the applicability of the public. utility standard herein. Accordingly, the parties are therefore advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that on the facts here presented, the commerce operations of the Em- ployer are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Sections 8, 9, or 10 of the Act. The Joclin Manufacturing Company and United Rubber, Cork, Linoleum & Plastic Workers of America , AFL-CIO. Case No. 1-CA-3656. May 23, 1962 DECISION AND ORDER On March 5, 1962, Trial Examiner William R. Ringer issued his Intermediate Report in the above-entitled proceeding, 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 affirmative action, as set forth in the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the In- termediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 entire record in this case, including the Intermediate Report and the excep- tions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the modifications noted below.' 1 We find no merit in the Respondent 's contention that the evidence proffered by it in support of its position as to the eligibility of six employees ( whose challenged ballots were ruled upon by the Board in Case No. 1-RC-0500 ) was improperly excluded. The Trial Examiner's ruling was based on the ground that such evidence was "neither new nor newly discovered." This holding was in accord with well-established practice. See, e.g., Royal McBee Corporation, 133 NLRB 1450 , footnote 2; Trancoa Chemical Corporation, 133 NLRB 791 ( IR). Moreover, the record indicates that no evidence not previously considered was offered , except that the Respondent 's offer of proof , made during the hear- ing herein , contained additional information with respect to employee Ursini which was not alleged in the representation proceeding . Thus, the Respondent has now offered to prove that Ursini was the sole employee working in a separate building, whereas in the prior proceeding, it stated merely that Ursini was the only employee engaged in his par- ticular type of work. Assuming that the facts now asserted by the Respondent are true and were properly raised, and that the Board were to conclude that Ursini was within the stipulated unit and eligible to vote , his ballot could not change the results of the elec- tion, and the validity of the certification could not be affected. "We do not adopt the findings of the Trial Examiner insofar as be may have implied that challenges to a ballot must originate with the party filing exceptions to rulings 137 NLRB No. 23. THE JOCLIN MANUFACTURING COMPANY 217 ORDER The Board hereby adopts the Recommendations of the Trial Exam- iner with the modifications of provisions 2(b) and (c) in accordance with footnotes 8 and 9 of the Recommendations. thereon or that a specific request is essential for the Board to direct a hearing on excep- tions to a report on challenged ballots. On the other hand, a party is entitled to a hear- ing only where such a hearing would serve a useful purpose. See Phalo Plastics Corpora- tion, 123 NLRB 503. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard by William R. Ringer, the duly designated Trial Exam- iner, in New Haven, Connecticut, on January 3, 1962, upon a complaint alleging violation of Section 8(a) (5), and derivatively Section 8(a) (1), by refusing to bargain with the Union after a certification based on a petition and election in Case No. 1-RC-6506. The Respondent in its answer admitted the filing and service of the charge, the commerce allegations, the appropriateness of the unit, and the factual refusal to bargain, but denied the legal validity of the certification and, accordingly, the violation of the Act. The parties at the hearing stipulated to the series of events and the rulings by the Regional Director and the Board in said representation case. The only issue contested here relates to the legal validity of the certification, with respect to six votes among nine challenges made at the election, seven by the Union,' two by the Board agent,2 and none by the Respondent. At the end of the hearing, counsel for each of the parties argued orally on the record. Counsel for the General Counsel distributed to the other counsel and to me a memorandum of law, and counsel for the Respondent thereafter filed a memoran- dum of law within the time fixed by me for the filing of briefs. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Connecticut corporation, is engaged at its plant in the city of Wallingford, Connecticut, in the manufacture, sale, and distribution of plastics and related products. For the manufacture of such products it has purchased and caused to be transported to its plant, large and substantial quantities of materials from and through States other than Connecticut, and annually manufactured products of a value in excess of $100,000, of which products of a value more than $50,000 have been and are shipped from said plant directly to States other than Connecticut. The Respondent at all times material has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The appropriate unit The Respondent admits that the unit alleged, and as found by the Board in the representation case, is appropriate. This unit I accordingly find appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as follows: All production and maintenance employees of the Respondent employed at its Wallingford plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act. i Ursini, Rosania, Stupski, Cella, D'Amico, Detour, and Bianco. 2 Palukis and Rollins. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The request and factual refusal to bargain The request to bargain and the factual refusal to bargain are each admitted and are hereby found . As heretofore indicated and hereinafter discussed , the Re- spondent's defense is that the certification is invalid. C. The defense of invalid certification As heretofore indicated, Respondent's sole defense is that the certification of the Union is invalid because there was no hearing on the Company's (in this case, the Respondent's) exceptions to the report of the Regional Director on the challenged ballots, either in the representation case itself or in the unfair labor practice case as conducted by me. The facts in the post election proceedings are undisputed . The tally of ballots showed as follows: Undisputed eligible voters___ _______________________________________ 41 Undisputed valid votes cast________________________________________ 31 Undisputed valid votes for Union ___________________________________ 17 Undisputed valid votes against Union ________________________________ 14 Challenged votes cast but not counted ________________________________ 9 Since the nine challenged ballots were sufficient to decide the question of majority of the ballots cast by eligible voters, the Regional Director proceeded to conduct an investigation, seeking and obtaining information from the challenged voters and the Respondent, and on August 8, 1961, served upon the Respondent and the Union a report on challenged ballots, reporting as to each of the nine what his investigation revealed, and making recommendations as to each , as follows: Sustain challenges: Ursini, Rosania, Stupski, Cella Overrule challenges: D'Amico, Detour, Bianco, Palukis, and Rollins and further recommended that the Board direct him to open and count the ballots of D'Amico, Detour, Bianco, Palukis , and Rollins, and issue a revised tally of ballots to the parties. On August 17, 1961, the Respondent filed with the Board its exceptions to report on challenged ballots, in which it excepted to each of the recommendations of the Regional Director,3 and in effect asked the Board to direct that the ballots of Ursini, Rosania, Stupski, and Cella be counted , and the ballots of Palukis and Rollins be not counted .4 In its exceptions , the Respondent did not squarely ask for a hearing as to any of the challenges and only obliquely as to Rosania , saying as to him , "It is submitted that the challenge should be overruled or that the substantial and material factual issues be resolved in a full hearing," and saying as to Palukis and Rollins, "If further evidence is desired, it is submitted that this factual issue should be resolved in a full hearing. On the basis of the facts found by the Regional Director, the challenge to these votes [Palukis and Rollins] should be sustained." The Board on October 17, 1961 , issued a Decision and Direction (not published in NLRB volumes ), in which it adopted pro forma the recommendations as to the challenges to the ballots of D'Amico , Detour, and Bianco, overruling them as no ex- ceptions had been filed thereto ; and found that the exceptions to the recommendations as to Ursini, Rosania, Stupski , Cella, Palukis, and Rollins "do not raise material and' substantial issues," adopted the Regional Director 's recommendations as to these six, and directed that the ballots of D'Amico, Bianco , Detour, Palukis, and Rollins be counted and a supplemental tally of ballots be served upon the parties. The Regional Director accordingly opened the ballots of the five. The revised tally showed a total of 19 for the Union , 17 against .5 The Board by its Regional Director proceeded on October 30, 1961 , to issue its certificate of representation of the Union. At the hearing before me, the Respondent offered evidence as to the eligibility of Ursini, Rosania, Stupski, and Cella (to show that they were eligible) and of Paluski and Rollins (to show that they were not eligible ). I denied the offered s That the Board sustain the challenges as to Ursini , Rosania, Stupski, and Celia and overrule them as to Palukis and Rollins 4 NO exceptions were filed to the Regional Director 's recommendations to overrule the challenges to the ballots of D'Amico, Detour , and Bianco 5 Of the five challenges counted . two were for, three against THE JOCLIN MANUFACTURING COMPANY 219 evidence, holding that the Board's decision in the representation case was decisive, since the proffered evidence (as admitted by the Respondent) was neither new nor newly discovered .6 The Respondent contends that the Board, by approving the Regional Director's report in the representation case, without directing a hearing before the Regional Director, acted arbitrarily and capriciously, and deprived it of due process in the representation procedure-in other words, it was entitled to a hearing, even though it did not ask for one-and relies on N.L.R.B. v. Joseph Sidran, d/bla Sidran Sports- wear, 181 F. 2d 671 (C.A. 5), decided in 1950. I do not feel that I have the au- thority to reverse the Board on a constitutional question, especially when the Board's practice both before and since Sidran has been to require no hearing by the Regional Director after exceptions to the report of a Regional Director on objection to the conduct of an election or on challenged ballots, with no clear request for such hearing or indications in the exceptions that the result would make the hearing worthwhile? Here the Respondent made no challenges at the election, and did not ask for a hearing, merely indicating that there ought to be a hearing as to one challenge if the Board did not go along with its exception (one ballot would not change the result) and suggesting a hearing in general. It made no showing what it would prove at a hearing, nor how a hearing would change the result. Accordingly, I find that the Respondent has refused to bargain with the Union and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company set forth 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 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. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Since July 7, 1961, the Union has been and now is the exclusive representative of the employees in the following unit which is appropriate for purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent employed at its Walling- ford plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act. 4. By refusing since November 20, 1961, to bargain collectively with the Union as the exclusive representative of the foregoing employees, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By such refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their right to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, thereby violating Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, The Joclin Manu- 9 Trancoa Chemical Corporation, 133 NLRB 791 ; National Van Lines, 123 NLRB 1272 NLRB. v. O.% Van Storage, Inc , 297 F. 2d 74 (C A 5). 7 Jesse Jones Sausage Company, et at, 123 NLRB 1279 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facturing Company, Wallingford, Connecticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive rep- resentative of the employees in the following appropriate unit: All production and maintenance employees of Respondent employed at its Walling- ford plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive representative of all em- ployees in the aforesaid unit, with respect to wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed contract. (b) Post at its plant at Wallingford, Connecticut, copies of the notice attached hereto marked "Appendix." 8 Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by an authorized rep- resentative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 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 said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for the First Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, as to what steps the Respondent has taken to comply herewith.9 It is further recommended that, unless within 20 days from the date of receipt of this Intermediate Report, the Respondent notifies the said Regional Director in writ- ing that it will comply with the foregoing recommendations, the Board issue an order requiring the Respondent to take the aforesaid action. 8In the event that the Recommendations be adopted by the Board, the words "A Deci- sion and Order" shall be substituted for the words "The Recommendations of a Trial Examiner ' In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 9 In the event that these Recommendations be 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL, upon request, bargain collectively with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive representa- tive of the following appropriate unit: All production and maintenance em- ployees employed at our Wallingford plant, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL cease and desist from refusing to bargain with that Union as the representative of the employees in that unit. THE JOCLIN MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston 8, Massachusetts, Telephone Number, Layfayette 3-8100, if they have any questions concerning this notice or compliance with its provisions.