Certified Testing Laboratories, Inc.

CERTIFIED TESTING LABORATORIES 881 Certified Testing Laboratories, Inc. and Local 84, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CA-3885. June 21, 1966 DECISION AND ORDER On May 2, 1966, Trial Examiner Sidney Lindner issued his Deci- sion in the above-entitled case, 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, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connec- tion with this case to a three-member panel [Members Brown, Jen- kins, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner, includ- ing his granting of the General Counsel's motion for judgment on the pleadings, and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Pursuant to a Decision and Direction of Election issued by the Regional Director for the National Labor Relations Board, Region 4, in Case 4-RC-6389, an election by secret ballot was conducted on June 25, 1965, at the plant of Certified Testing Laboratories, Inc., the Respondent or Employer herein . Local 84, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, the Union herein, challenged the vote of one employee , which was sufficient to affect the results of the election. Thereafter, the Respondent filed timely objections to the conduct affecting the results of the election. In due course , following investigation , the Regional Director issued a Report and Recommendation on Challenged Ballot, in which he recommended that the chal- lenge to the ballot of Donald T. Carrozzino be sustained as Carrozzino is a tempo- rary, casual employee under a university cooperative student plan and did not have the same interests and goals of the other employees in the unit. The Regional Director reserved action on the Respondent's objections pending the Board's dis- position of his recommendation sustaining the challenge . The Respondent filed exceptions with the Board to the Regional Director's report and a supporting brief in which it asserted that Carrozzino is a regular part-time employee working under the same conditions and with the same interest as the other employees. In addition Respondent requested a hearing be held so that all the facts could be fully developed. 159 NLRB No. 78. 243-084-67-vol. 15 9-5 7 $82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 30, 1965, the Board issued its Decision and Certification of Repre- sentatives in which it adopted the Regional Director's findings and recommenda- tions and sustained the challenge to the ballot of Carrozzino and denied Respond- ent's request for,a hearing. At the same time the Board certified the Union as the collective-bargaining representative of the Respondent's employees in the appropri- ate unit. The Complaint Proceeding On February 3, 1966, upon a charge filed by the Union, the General Counsel caused a complaint to be issued alleging that the Respondent committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing since on or about January 11, 1966, to bargain with the Union upon demand. In due course the Respondent filed its answer to the complaint in which it denied the commission of unfair labor practices and requested that the complaint be dismissed. Thereafter, on March 7, 1966, the General Counsel filed a Motion for Summary Judgment based on the ground that all material issues or facts• not admitted in the Respondent's answer had been litigated. in the representation case and were not open to relitigation in a complaint proceeding. Upon an Order to Show Cause issued on March 22, 1966, the Respondent filed an Opposition to the General Counsel's Motion for Summary Judgment. Based upon the complaint, Respondent's answer, General Counsel's Motions for Summary Judgment, Respond- ent's answer to Order to Show Cause and the entire record before Trial Examiner Sidney Lindner I make the following: Ruling on the Motion for Summary Judgment In its Opposition to the Motion for Summary Judgment the Respondent con- tended that it was and is entitled to a hearing in order to insure litigation of the facts. This contention is without merit. The Respondent seeks to relitigate the cor- rectness of the Board's action in dismissing its objections to the election and certi- fying the Union; this it may not do. In the absence of newly discovered or pre- viously unavailable evidence, issues which were or could have been 'raised in a related representation case may not be relitigated in an unfair labor practice proceeding.' The Board has said: It is well settled that such issues which were raised in the representation case may not be litigated in the subsequent unfair labor practice case.2 In addition Respondent's reply to the Order to Show Cause,which it contends is new evidence 3 not considered by the Regional Director or the Board in the Deci- sion and Direction of Election. Upon full consideration of the Respondent's alle- gations and the entire record in the case I find Respondent 's contention to be with- out merit. Respondent's reply does not propose any evidence which was not avail- able to it and offered at the time of the representation proceeding. The only issue which Respondent seeks to raise in this case-the challenge to the ballot of Car- rozzino-has been considered by the Board and therefore is not open before me. Although afforded an opportunity to state the issues which it proposes to raise herein, the Respondent has not raised any issue which is properly triable in this unfair labor practice case. All material issues having thus been decided by the Board or admitted in the answer to the complaint, there are no matters requiring a hearing before a Trial Examiner. Accordingly the General Counsel's Motion for Summary Judgment is granted. On the basis of the record before me I make the following: FINDINGS OF FACT 1. JURISDICTION Certified Testing Laboratories, Inc., is and has been at all times material herein, a New Jersey corporation, with its principal office in Bordentown, New Jersey, and facilities located at Bethlehem and Harrisburg , Pennsylvania, where it is engaged i Pittsburgh Plate Glass Co. v. N.L.R B., 313 U.S. 146 ; United States Rubber Company, 155 NLRB 1298; Macomb Pottery Company, 157 NLRB 1616. 2 National Survey Service, 151 NLRB 783, enfd. 361 F.2d 191. 3 The only new evidence Respondent has offered is Carrozzino's school record, which was made available to the Regional Director at the representation proceeding CERTIFIED TESTING LABORATORIES 883 in the testing and inspection of materials for contractors, architects, engineers, and municipalities. The Respondent's facility located at 155 U.S. Route 130, Borden- town, New Jersey, is the only one involved in this proceeding. During the past 12 months, Respondent derived revenues in excess of $50,000 from its sales and per- formance of services to firms, each of which in turn made sales valued in excess of $50,000 to customers located outside the State of New Jersey. I find that Respond- ent is now and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The representation proceeding 1. The unit At all times material herein the following employees at the Respondent's Bor- dentown, New Jersey, facility constitute a unit appropriate for collective-bargaining purposes within the meaning of the Act: All inspectors excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act. 2. The certification On or about June 25, 1965, a majority of the employees of Respondent in said unit, in a secret election conducted under the supervision of the Regional Director for Region 4, designated the Union as their representative for the purpose of collective bargaining with Respondent, and on November 30, 1965, said Regional Director certified the Union as the collective-bargaining representative of the employees in said unit and the Union continues to be such representative. 3. The request to bargain and the Respondent's refusal On or about January 11, 1966, and continuing to date, the Union has requested and is requesting, Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. On or about January 14, 1966, and at all times thereafter, Respondent did refuse and continues to refuse to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in said unit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, occurring in connection with its operations set forth in section I, 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, and is engaging in certain unfair labor practices, I shall recommend that it 'cease and desist therefrom 'and take affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and the entire record in the case, including the representation proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All inspectors at Respondent's Bordentown, New Jersey, facility, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 884 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Since on or about November , 30, 1965, the Union has been and is, the exclu- sive representative for the purpose of collective bargaining of the employees in the unit described above. - 5. By refusing to bargain collectively with the Union as- the exclusive repre- sentative of the employees in the appropriate unit on January, 11, 1966 , and there- after, 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 affect commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER ' Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case and in the representation proceeding , I recommend that the Respondent, Certified Testing Laboratories , Inc., its officers, agents, successors, and assigns, shall: - 1 Cease and desist from: (a) Refusing to bargain collectively with Local 84, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following unit ' All inspectors employed at the Respondent's Bordentown, New Jersey, plant, 'excluding all office clerical employees, guards, watchmen , and supervisors as defined in the Act. (b) Interfering with the efforts of Local 84, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , to represent the employ- ees in the appropriate unit as exclusive bargaining agent. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) 'Upon request, bargain collectively with Local 84, -International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , as the exclu- sive representative of all the employees -in the appropriate unit described . above, with respect to rates of pay, wages, hours of employment,, and other conditions of employment, and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its Bordentown, New Jersey, plant, copies ,of the attached notice marked "Appendix." 4 Copies of said notice to be furnished by the Regional Director' for Region 4, shall, after being duly signed by ' Respohdent's representa- tive, be posted by it 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 notices are not altered , defaced, or covered by' ahy other material. ' ' ' (c) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision , what steps the- Respohd'ent has' -taken to comply herewith .5 4 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "a Recommended Oriier of a Trial Examiner" in the notice. In the further event that the Board ' s Order is 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." - 5 In the event, that this Recommended Order is 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 Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the - National 'Laboi Relations Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local ' 84, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of Amer- ica, as the exclusive representative of employees in the ' bargaining -unit described below. MUTUAL INDUSTRIES, INC. 885 WE WILL NOT interfere with the effort of Local 84, International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, to negotiate for, or represent as exclusive bargaining agent of, the employees in the bargaining unit described below. WE WILL upon request, bargain with the above-named Union, as exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other conditions of employment, if an understanding is reached, embodying such an understanding in a signed agreement. The bargaining unit is: All inspectors excluding all office clerical employees , guards, watchmen, and supervisors as defined in the Act. CERTIFIED TESTING LABORATORIES, 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, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7617. Mutual Industries, Inc. and Los Angeles Dress and Sportswear Joint Board, International Ladies' Garment Workers' Union, AFL-CIO. Case 21-CA-6863. June 01, 1966 DECISION AND ORDER On April 14, 1966, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewd 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 Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings,, conclusions,2 and recommendations. 1 We do not pass on the Trial Examiner's conclusion with respect to Kardaschian's card as the Union had in any event been designated as their representative by a majority of the employees in the appropriate unit. 2 The Trial Examiner inadvertently described a telegraphic request for additional bar- gaining, dated August 24 , 1965, as having been sent by Plant Manager Meyers, when in fact that telegram was sent by Union Organizer Schwartz ; the Trial Examiner's inadvertent finding Is hereby corrected. 159 NLRB No. 73.