Tyler Pipe and Foundry Co.

784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 NOT discourage membership in Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL- CIO, or any labor organization, by discharging any of our employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten employees with reprisals if said Local 371 becomes your collective-bargaining agent. WE WILL NOT offer employees rewards or benefits if' they refrain from union membership or activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL offer Brenda J. Dossat immediate and full reinstatement to her former position or one substantially equivalent thereto, and make her whole for any loss of pay incurred by her as a result of her discharge by us, with interest thereon at 6 percent per annum. All our employees are free to become, remain, or refrain from becoming or remaining, members of the 'above-named Local 371 or any other labor organization. BETTER VAL-U STORES OF MANSFIELD, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. 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, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3358. Tyler Pipe and Foundry Company and International Molders and Allied Workers Union, AFL-CIO. Case 16-CA-2568. No- vember 4, 1966 DECISION AND ORDER On July 7, 1966, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that 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 attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. 161 NLRB No. 66. TYLER PIPE AND FOUNDRY CO. 785 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 Zagoria]. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on January 12, 1966, by International Molders and Allied Workers Union, AFL-CIO, herein called the Union, a complaint was issued on February 25, 1966, and an amended complaint on April 5, 1966. The complaint as amended alleges that Respondent, Tyler Pipe and Foundry Company, had, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, refused to bargain with the Union which had been duly certified by the Regional Director of the Board on September 30, 1965, as the collective-bargaining representative of Respondent's employees in an appropriate unit. Respondent duly filed answers to the original and amended complaint, conceding that it had refused to bargain with the Union, but denying that the Union was the uncoerced bargaining representative of its employees and asserting as an affirmative defense that the Regional Director of the Board had erroneously decided Respond- ent's objections to the election and that the Board, on request for a review of the decision, had erroneously denied the request. Thereafter, on April 22, 1966, the General Counsel filed a motion to strike certain poitions of Respondent's answer and amended answer and a motion for judgment on the pleadings. These motions were referred to Trial Examiner Sidney Lindner who, on April 27, 1966, issued an order to show cause why the General Counsel's motions should not be granted and directed Respondent, in any response, to state whether there is any issue which requires a hearing for its resolution and, in particular, whether the Respondent intends to litigate any issues other than those already decided by the Board in the underlying representation case, Case 16-RC- 3951. The order further required Respondent, if it proposed to litigate any new issue, to summarize the general nature of the facts to be adduced at the hearing and state whether such evidence is newly discovered or was not available to it during the underlying representation proceedings. Pursuant to the Trial Examiner's order to show cause, Respondent filed a response, amended response, and a brief in support, of its responses. This matter was thereafter referred to Trial Examiner Fannie M. Boyls for consideration and ruling. On the basis of the entire record, there is made the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and I find that Respondent is a Texas corporation, having its principal office and place of business in Swan, Texas, where it is engaged in the manufacture of soil pipe and fittings. During the year preceding the issuance of the complaint, which is a representative period, Respondent, in the course and conduct of its business, purchased and received at its Swan plant from points outside Texas raw materials valued in excess of $50,000 and during the same period sold and shipped to points outside Texas products valued in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 26 4-188-67-v of 161-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED It is conceded and I find that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint as amended alleges and Respondent's answers admit the follow- ing facts relating to the alleged unfair labor practices: On or about August 5, 1965, a majority of Respondent's employees in an appropriate unit by secret ballot in an election conducted under the supervision of the Regional Director for Region 16 of the Board, designated and selected the Union to represent them for purposes of collective bargaining with Respondent. On or about August 11, 1965, Respond- ent timely filed objections to the conduct of the election and conduct affecting the results of the election (the substance of which objections are set forth in the com- plaint), and requested the Regional Director to set aside the election and order a rerun election. On September 30, 1965, the Regional Director issued his Supple- mental Decision and Certification of Representatives in which he overruled Respondent's objections and certified the Union as the collective-bargaining repre- sentative. On or about October 27, 1965, Respondent requested the Board to review the Regional Director's Supplemental Decision and Certification and simul- taneously filed a motion for healing on the objections. In the request for review Respondent asked the Board to set aside the Regional Director's decision and that a new election be ordered, or alternatively, that the Board remand the case to the Regional Director for a hearing on the factual and credibility issues raised by the investigation of Respondent's objections. By telegram dated December 17, 1965, the Board denied Respondent's request for review and denied its motion for a heating. On or about December 27, 1965, Respondent filed with the Board its motion for reconsideration of its request for review, which motion was denied by the Board in a telegram dated January 12, 1966. Respondent's answer also admits the allegations of the complaint that on or about October 4 and December 21, 1965, and January 6, 1966, the Union requested Respondent to bargain with it as the exclusive bargaining representative of Respondent's employees in the appropriate bargaining unit and that Respondent sent the Union a telegram on October 6, 1965, and a letter on January 6, 1966, in both of which Respondent declined to bargain with the Union. Respondent attached to its answer as Exhibits A and B copies of this telegram and letter. Respondent admitted also the allegations of the complaint that commencing on or about Octo- ber 16, 1965, and at all times thereafter Respondent has refused to bargain with the Union because of its contention that the Regional Director's Supplemental Decision and Certification of Representatives is invalid for the reasons stated in its objections to conduct of election and conduct affecting results of election, its request for review, and its motion for reconsideration of its request for review. Respondent asserted in its answer that its refusal to bargain with the Union was also for the reasons stated in its telegram of October 6, 1965, and its letter of January 6, 1966, to the Union. The Respondent denied that its refusal to bargain was unlawful. In its telegram of October 6, 1965, Respondent informed the Union that after studying the Regional Director's decision of September 30, 1965, it had decided to avail itself of its right to petition the Board in Washington for review of that decision and that "since the matter of your certification as bargaining representative has not been finally determined, the Company would not be in a position to begin negotiations unless and until you are certified as the true representative of a major- ity of our employees in the units. described in Case 16-RC-3951, by the National Labor Relations Board in Washington." In its letter to the Union dated January 6, 1966, Respondent explained that since receiving the Union's letter of December 23, the Respondent had on December 27, filed with the Board a motion for reconsideration of its request of review, that if its motion was upheld, negotiations with the Union "would be inconsistent and untimely." It further informed the Union that in the event the Board denied its motion for reconsideration, the Respondent intended to test the validity of the certification before the United States Court of Appeals for the Fifth Circuit. As already indicated, after receiving Respondent's answers the General Counsel filed a motion to strike portions of Respondent's answer and amended answer to the complaint and amended complaint and a motion for judgment on the pleadings. TYLER PIPE AND FOUNDRY CO. 787 These motions'were referred to Trial Examiner Lindner who issued an order to show' cause why the motions should not. be granted and Respondent thereafter filed a response, an amended response, and, a brief in support of its response. In its responses, Respondent has reiterated in substance the same contentions it made before the Regional Director and the Board and has not alleged any material newly discovered or previously unavailable facts bearing upon the validity of the certification of the Union or Respondent's obligation to bargain with the Union. Respondent does assert that it has newly discovered and previously unavail- able evidence consisting of a survey recently prepared by a radio station which would show that during voting hours, more than 50 percent of the Respondent's employees "had the opportunity to hear" a number of the Union's electioneering commercials. But this asserted new evidence is in substance no different from Respondent's assertion before the Board in its motion for hearing on objections that it had evidence that the broadcasts to which-it objected " were coming over a number of transistor radios stationed in the loading dock area of the Employer, and that some 800 to 1,000 [of its approximately 1,802] employees had to walk by this area and these trucks in order to enter and leave one of the polling areas; that, furthermore, the eligible voters that voted at the Employer's Noith Plant had to walk in an area occupied by the transportation department of the Employer and there were a number of trucks in this area with their radios playing over which these spot announcements could have been heard." The Board, in sustaining the Regional Director's ruling, found these asserted facts not to warrant setting aside of the election.' In its amended response to the Trial Examiner's Order to Show Cause, Respond- ent asserts as an additional defense that the Union on May 16, 1966, called a strike at Respondent's plant in which less than 8 percent of the employees in the appropriate unit participated, and argues from this alleged fact "that the Union is not now and was not at anytime, the true representative of an uncoerced majority in the unit." It is well established, however, that once a union has been validly certified as bargaining representative, a loss of majority support during the certification year will not affect the Employer's obligation to bargain with the certified representative. This was the ruling of the Supreme Court in Ray Brooks v. N.L.R.B., 348 U.S. 96. See also Section 9(c)(3) of the. Act. Moreover, a loss of majority support following an unlawful refusal to bargain will not relieve the Employer of his obligation to bargain even beyond the certification year, for it must be inferred, in the absence of unusual circumstances , that the defections were caused by the employer's unfair labor practices . Accordingly, it is found that Respondent's asserted defense based upon proffered evidence of the strike is without merit. In its amended response, Respondent also asserts that as a matter of law it has a right to a hearing before a Trial Examiner on issues concerning the validity of the election and Respondent's objections thereto inasmuch as no hearing was held in the representation proceeding . It is settled , however, that no hearing is required where there are no legally significant factual issues to be decided. Fay [Parker- Kalon Corp.] v. Douds, 172 F.2d 720,'725 (C.A. 2); N.L.R.B. v. Douglas County Electric Membership Corporation, 358 F.2d 125 (C.A. 5); Producers Livestock Marketing Association v. United States, 241 F.2d 192, 196 (C.A. 10), affd. 356 U.S. 282; N.L.R.B. v. National Survey Service, Inc., 361 F.2d .199 (C.A. 7), decided April 12, 1966. Here, the Regional Director and Board assumed the truth of the evidentiary facts alleged by Respondent in its request for review in the representation case and concluded that the facts alleged did not constitute grounds for invalidating the results, of the election . Whether the Regional Director and Board were right or wrong in this conclusion is not a question which a Trial Examiner in a refusal-to-bargain case may consider. The Trial Examiner is bound by the Board's findings. If an error was made by the Board in the underlying representation case , only the Board or a reviewing court niay correct such error. There are, accordingly, no contested issues which warrant a hearing in this unfair labor practice case. ' This ruling was consistent with the Board 's recent holding in Crown Paper Board Co., 158 NLRB 440, that a union's sound car broadcasts to employees to vote for the Union in an election conducted within 24 hours of the broadcasts did not violate the Board's rules prohibiting electioneering speeches on company time to massed assemblies of employees within 24 hours before the election, within the meaning of the rule estab- lished in Peerless Plywood Company, 107 NLRB 427, and such broadcasts did not con- stitute grounds for setting aside the election. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since all material issues pertaining to the election and the validity of the certification of the Union have been decided by the Board in the representation case and Respondent, in its answer to the complaint, has admitted its refusal to bargain with the Union, the General Counsel's motion for judgment on the pleadings is granted. In view of my disposition of the motion for judgment on the pleadings, no useful purpose would be served in striking certain portions of Respondent's answer and amended answer and the General Counsel 's motion to strike is denied. Upon the foregoing findings of fact and the record before me, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees employed by Respondent at its plant in Swan, Texas, excluding over-the-road truckdrivers and their helpers, professional and technical employees, office and plant clerical employees, guards, watchmen, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since August 5, 1965, the Union has been and is now the exclusive representative of all of Respondent's employees in the appropriate unit within the meaning of Section 9(a) of the Act. 3. By refusing to bargain collectively with the Union since on or about Octo- ber 6, 1965 , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the record before me, there is hereby issued the following: RECOMMENDED ORDER Tyler Pipe and Foundry Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Molders and Allied Workers Union, AFL-CIO, as the exclusive bargaining representative of the employ- ees in the following appropriate unit: All production and maintenance employees employed by Respondent at its plant in Swan, Texas, excluding over-the-road truckdrivers and their helpers, professional and technical employees, office and plant clerical employees, guards, watchmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with International Molders and Allied Workers Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit as found above and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Swan, Texas, plant copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive 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 said notices are not altered , defaced, or covered by any other material. 2In 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 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." BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO. 789 (c) Notify the Regional Director for Region 16, in writing , within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith. 8In the event that this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify the 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 Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL bargain collectively , upon request, with International Molders and Allied Workers Union, AFL-CIO, as the exclusive bargaining representative of all employees in the bargaining unit described below concerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody the same in a signed agreement. The bargaining unit consists of: All production and maintenance employees at our plant in Swan , Texas, excluding over-the-road truckdrivers and their helpers, professional and technical employees, office and plant clerical employees , guards, watchmen, and supervisors as defined in the National Labor Relations Act. WE WILL NOT refuse to bargain collectively as aforesaid nor will we, in any like or related manner, interfere with, restrain, or coerce our employ- ees in the exercise of the right to bargain collectively through said union. TYLER PIPE AND FOUNDRY COMPANY, 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, Sixth Floor Meacham Building , 110 West Fifth Street, Fort Worth, Texas 76102, Telephone 335-4211, Extension 2145. Bendix-Westinghouse Automotive Air Brake Co. and Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 10-CA-617. November 4, 1966 DECISION AND ORDER On July 6, 1966, Trial Examiner Robert Cohn issued his Decision 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 attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with 161 NLRB No. 73.