Ortronix, Inc.

ORTRONIX, INC. 3 no showing that Piscopo either possesses or exercises any control over the hiring or firing or any other conditions of employment of em- ployees.' And it is undisputed that each motel operation has its own manager, accountant, and attorney; that each manager purchases supplies and solicits business for the motel he manages; and that there is no reciprocity between the motels or any other indicia of interrela- tionship in the conduct of their day-to-day operations. Indeed, Palmer's manager testified he does not know any of the other motel managers. As noted by the Regional Director, the Board often treats separate companies as one employer for jurisdictional purposes where it can be found that the firms, despite their separate legal structure, are highly integrated with respect to ownership and operations. Though no one factor is controlling, those factors which the Board deems relevant to such determination include not only common ownership or financial control, but also such other indicia of identity as inter- relationship of operations, common management, and centralized con- trol of labor relations.e In the instant case, it does not appear that Piscopo's financial interest in the motel or hotel operations described above is of such a character as to permit his control of all such opera- tions. And it is clear that each of them is, in fact, managed independ- ently of the other. In these circumstances, we are unable to conclude that the relationship of Justru, Della, and Sky-Top to Palmer is such as to justify treating all of them together as a single employer for juris- dictional purposes. As jurisdiction over Palmer cannot be asserted on any other basis consistent with our established standards, we shall dis- miss the petition.7 [The Board dismissed the petition.] 5 Piscopo hired Palmer's present manager and instructed him as to his responsibilities. He also provided a replacement when that manager went on vacation. 9 See Chicago Theatrical Protective Union Local No. 2, I.A.T.S.E. (Midwest News Reel Theaters, Inc.), 151 NLRB 857; Sakrete of Northern California, Inc., 137 NLRB 1220, 1222, enfd. 332 F. 2d 902 (C.A. 9). Twenty-first Anwual Report of the National Labor Relations Board, pp. 14-15. 7In view of our findings herein , we deem it unnecessary to resolve other issues raised by the Employer's request for review. Ortronix, Inc. and Sheet Metal Workers' International Associ- ation, AFL-CIO. Case No. 12-CA-3949. December 13, 1965 DECISION AND ORDER On September 14, 1965, Trial Examiner Thomas N. Vessel issued his Decision in the above-entitled proceeding, finding that the Re- 156 NLRB No. 1. 217-919-66-vol. 156-2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent 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 attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed 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 [Members Fanning, Brown, and Jenkins]. The Board has considered the Trial Examiner's Decision, the excep- tions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.'] i The address and telephone number for Region 12 , appearing at the bottom of the Appendix attached to the Trial Examiner's Decision, is amended to read: 706 Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711, Extension 257. TRIAL EXAMINER'S DECISION ON MOTION FOR JUDGMENT ON THE PLEADINGS Upon a charge filed June 2, 1965, by Sheet Metal Workers' International Associa- tion, AFL-CIO, herein called the Union, against Ortronix, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 12, issued a complaint dated June 9, 1965, alleging that the Respondent had engaged in conduct violative of Sec- tion 8(a)fl) and (5) of the Act. The complaint alleges that on May 17, 1965, the Union was certified by the Regional Director as the exclusive collective-bargaining representative of the Re- spondent's employees in the appropriate unit described below and that the Respondent refused in violation of the Act to recognize and bargain collectively with the Union despite the latter's demand therefor. The Respondent's answer admits these allega- tions but defends its refusal to honor the Union's certificate because of claimed errors by the Regional Director in his several decisions in the course of the representation proceeding (Case No. 12-RC-1802) which culminated with the Union's certifica- tion. In effect, the Respondent attacks the validity of the Union's certificate in justification of its admitted refusal to recognize and bargain with the Union. Upon the filing of the Respondent's answer the General Counsel moved for judg- ment on the pleadings, contending that the Respondent's attack upon the Union's certificate raised no issue litigable in the instant proceeding. The General Counsel maintains that the Regional Director's errors complained of by the Respondent and referred to in the answer involved matters which were fully litigated and passed upon by the Regional Director and the Board in Case No. 12-RC-1802 and that these matters may not be relitigated in the instant case. On June 30, 1965, Trial Examiner Thomas N. Kessel issued and caused to be served on the Respondent an order to shown cause why the General Counsel's motion should not be granted. On June 28 the Respondent had filed with the Regional Director a response to the General Counsel's motion for judgment. That motion was subsequently referred to me and received on July 6, 1965. In its response the Re- spondent attacked the summary judgment procedure invoked by the General Counsel's motion and insisted that it was entitled to a hearing before a Trial Examiner. On July 9, 1965, I issued another order finding the Respondent's procedural challenge to the General Counsel's motion for judgment on the pleadings to be without merit. In that order the Respondent was advised that before finally ruling on the General Counsel's motion it would be given the opportunity to bring to my attention the ORTRONIX, INC. J evidence, if any, newly discovered or not available at the time of the representation proceeding referred to in the complaint, which the Respondent would offer in its defense at any hearing held under the complaint. The Respondent was directed to submit a summary of such evidence to me in writing within 10 days from the receipt of the order. No response has been received from the Respondent to that July 9, 1965, order. I, accordingly, assume that the Respondent does not have such evidence which it would offer at a hearing in this proceeding were such hearing to be held. On July 9, 1965, the Respondent, responding to my June 30 order to show cause, moved to quash that order and for dismissal of the General Counsel's motion for summary judgment. The contentions and arguments contained in this document are essentially the same as those in the Respondent's June 28 response to the General Counsel's motion for judgment on the pleadings. These motions are hereby denied for the same reasons set forth in my July 9, 1965, order. Upon the basis of the Respondent's admissions in its answer to the complaint and the failure by the Respondent to submit, as ordered, a summary of any evidence, newly discovered or not previously available, which it would offer in its defense at a hearing, I find, for reasons elaborated below, that the statutory violation alleged in the complaint is established by the pleadings and that no litigable issue remains requir- ing a hearing for the purpose of taking evidence. Accordingly, the General Counsel's motion for judgment on the pleadings is hereby granted. Upon the basis of the record before me, I make the following: FINDINGS OF FACT I. COMMERCE FACTS The Respondent is a Florida corporation engaged at Orlando, Florida, in the manu- facture of electronic and sheet metal products. In the year preceding issuance of the complaint the Respondent purchased goods valued in excess of $50,000 which were shipped to its plant, from points outside the State. During the same period the Re- spondent had a dollar volume of sales and/or services which it shipped and/or per- formed outside the State which were valued in excess of $50,000. I find from the foregoing facts that the Respondent is engaged in interstate commerce within the Act's meaning and that the purposes of the Act will be effectuated by the Board's assertion of jurisdiction in this case over its operations. The Union is employees. H. THE LABOR ORGANIZATION INVOLVED a labor organization admitting to membership the Respondent's III. THE UNFAIR LABOR PRACTICES In attacking the validity of the Union's certificate as exclusive collective-bargaining representative, the Respondent .in its answer asserts that the Regional Director com- mitted procedural errors and made erroneous factual findings in his March 2, 1964, Decision and Direction of Election in Case No. 12-RC-1802. The answer further asserts that the Regional Director made erroneous findings of fact and committed errors of law in his Supplemental Decision, Order and Direction of Second Election, dated June 3, 1964, and in his Second Supplemental Decision, dated August 17, 1964. Because of these claimed errors of fact and law, the Respondent asserts that the January 21, 1965, second election, won by the Union, was illegally held and is there- fore without effect and that the resultant certificate to the Union is a nullity. All the foregoing claimed errors in the Regional Director's decisions in Case No. 12-RC-1802 were the subject of motions for reconsideration by the Regional Director and petitions for review to the Board from his denial of said motions. These petitions were reviewed and denied by the Board. Thus, each ground now relied upon by the Respondent to attack the Union's certificate involves an issue which was fully considered and passed upon by the Regional Director and the Board in the repre- sentation case. These issues may not be relitigated in this proceeding. Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 161-162. The Respondent having failed to show that it has other evidence, newly discovered or previously not available, to challenge the Union's certificate, the validity of that certificate stands unimpaired. As the Respondent has presented no defense to its refusal to honor the certificate, other than the defenses hereinabove rejected, I find that by its admitted refusal to recognize and bargain with the Union upon demand the Respondent has on 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and since May 28, 1965, refused to recognize and bargain collectively with the Union in violation of Section 8(a) (5) and (1) of the Act for the employees in the following appropriate unit: All production and maintenance employees employed by Ortronix, Inc., at its Orlando, Florida, plant, including sheet metal assemblers, sheet metal assemblers senior, carpenters, welders, machine operators, sheet metal mechanics, machinists, painters, jig and fixture mechanics, electrical assemblers, wiremen, material handlers, test technicians, maintenance technicians, stock clerks, shipping and receiving clerks, warehousemen, drivers, inspectors, and timekeeper; excluding all other employees, including office clerical employees, professional employees (including engineers), technical employees (including electronic technicians and draftsmen), and super- visors as defined in 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 con- nection with its operations 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 thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and taken certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bar- gain collectively with the Union as the exclusive representative of the employees in the appropriate unit described herein. It will therefore be recommended that the Re- spondent bargain collectively upon request with the Union as the exclusive repre- sentative of these employees and, if an understanding is reached, embody such under- standing in a signed agreement. 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. Ortronix, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Sections 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All employees employed by Ortronix, Inc., at its Orlando, Florida, plant in the above-described appropriate unit constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On May 17, 1965, and at all times thereafter, the Union was and now is the representative of a majority of the Respondent's employees in the appropriate unit de- scribed above for the purpose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By refusing on May 28, 1965, and thereafter to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)^(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceeding , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent , Ortronix, Inc., Orlando, Florida, its officers, agents , successors , and assigns , shall: 1. Cease and desist from refusing to bargain collectively with Sheet Metal Workers' International Association, AFL-CIO, as the exclusive representative of all its em- ployees in the appropriate unit with respect to rates of pay , wages, hours of employ- ment, and other terms and conditions of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) On request, bargain collectively with Sheet Metal Workers' International Association , AFL-CIO, as the exclusive representative of the employees in the appropriate unit and embody any understanding reached in a signed contract. MONTGOMERY WARD & CO., INCORPORATED 7 (b) Post at its place of business in Orlando , Florida, copies of the attached notice marked "Appendix." I Copies of said notice , to be furnished by the Regional Direc- tor for Region 12 , shall, after being duly signed by an authorized representative of the Respondent , be posted by it 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 , defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision , what steps it has taken to comply therewith.2 'In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order 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 "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order". a In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 12, in writing, within 10 days from the date of receipt of this Order, what steps the Company has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Sheet Metal Workers' Inter- national Association, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All production and maintenance employees at our Orlando, Florida, plant, including sheet metal assemblers , sheet metal assemblers senior, car- penters, welders, machine operators, sheet metal mechanics, machinists, painters , jig and fixture mechanics , electrical assemblers , wiremen, material handlers, test technicians , maintenance technicians , stock clerks, shipping and receiving clerks, warehousemen , drivers, inspectors , and timekeepers; excluding, all other employees, including office clerical employees, profes- sional employees ( including engineers ), technical employees ( including electronic technicians and draftsmen), and supervisors as defined in the Act. ORTRONIX, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Ross Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623. Montgomery Ward & Co., Incorporated and Betty A. Frese. Case No. 13-CA-6745. December 14, 1965 DECISION AND ORDER On September 17, 1965, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that the Respondent 156 NLRB No. 5.