Baumritter Corp.

BAUMRITTER CORP. Baumritter Corporation ; Kling Factories, Inc. and District Lodge No. 65, International Association of Machinists & Aerospace Workers, AFL-CIO. Case 3-CA-3082. May 3,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On January 13, 1967, Trial Examiner Charles W. Schneider issued his Decision in the above 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, the Respondent filed exceptions 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. The Board has considered the Trial Examiner's Decision, the exceptions and supporting brief, and the entire record in this case, 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 adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent , $aumritter Corporation; Kling Factories, Inc., New York, New York, its officers, agents , successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding CHARLES W. SCHNEIDER,Trial Examiner: Upon petition for certification as collective-bargaining representative filed on March 16, 1966, by District Lodge No. 65, International Association of Machinists & Aerospace Workers, AFL-CIO, herein called the Union, the Regional Director for Region 3 of the National Labor Relations Board on March 30, 1966, approved a stipulation for certification upon consent election, executed by the Respondents, Baumritter Corporation, Kling Factories, Inc., and the Union on March 28, 1966. The appropriate bargaining unit was stipulated to be the unit set out hereinafter.' I Official notice is taken of the representation proceeding, Baumritter Corporation, Kling Factories , Inc., Case 3-RC-3888 297 On April 15, 1966, an election by secret ballot was conducted in the appropriate unit under the supervision of said Regional Director in which election the Union received a majority of the valid ballots cast. Thereafter, the Respondents filed timely objections to the election based on asserted conduct by the Union affecting the results of the election, and also based on the asserted actions of a Board agent which allegedly interfered with rights guaranteed by the National Labor Relations Act, as amended, and, the employee's rights under the First Amendment to the Constitution of the United States. It does not appear that the Respondent at that time requested a formal hearing on its objections. On May 31, 1966, the Regional Director, after investigation, issued a report on objections. In this report, the Regional Director recommended that the objections be overruled and that a certification of representative issue. On June 20, 1966, the Respondent filed with the Board timely exceptions to the Regional Director's report, in which the Respondent contested the correctness of the Regional Director's factual and other findings, and requested a formal hearing on its objections. On September 11, 1966, the Board issued its Decision and Certification of Representative in which it found that the Respondent's exceptions raised "no material issues of fact or law warranting reversal of the Regional Director's recommendations." Accordingly, the Board adopted the Regional Director's report and certified the Union as the bargaining representative under Section 9(a) of the Act. The Complaint Case On October 17, 1966, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged that since the certification the Respondent had refused to bargain with the Union. On November 8, 1966, the General Counsel, by the Acting Regional Director, issued a complaint alleging that the Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union upon request. In due course, the Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others were denied. In its answer, the Respondent admitted most of the allegations contained in the complaint but denied that the Union was the exclusive bargaining representative of the employees and further denied the commission of any unfair labor practices. The answer admitted: (1) the jurisdictional allegations of the complaint, (2) the Union is a labor organization within the meaning of the Act, (3) the unit is appropriate, (4) the election was held, and (5) commencing on or about September 26, 1966, the Union has requested the Respondent to bargain and commencing on or about October 4, 1966, the Respondent has refused the request. On November 23, 1966, counsel for the General Counsel filed a motion for summary judgment and issuance of Trial Examiner's Decision accompanied by an argument in support thereof, contending that the admissions contained in the answer, in the light of the representation proceedings, established the allegations of the complaint, and that therefore there was no necessity for a hearing. On November 30, 1966, Trial Examiner Charles W. Schneider issued an order to show cause on the motion for 164 NLRB No. 56 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD summary judgment and indefinitely postponed the scheduled hearing. The parties were directed to show cause on or before December 16, 1966, as to whether the motion for judgment on the pleadings should be granted. On December 16, 1966, counsel for the Respondents filed a memorandum in opposition to General Counsel's motion for summary judgment. The entire record herein has been considered by me. Ruling on the Motion for Summary Judgment The Respondent opposes the General Counsel's motion for summary judgment, contending that it is entitled to a hearing on its challenge to the conduct of the election in order that it might have an opportunity to present evidence concerning the subject matter of the objections. However, it is clear that the issues of fact as to which the Respondents urge a hearing have already been litigated in the prior representation case. As to these matters it is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to relitigate issues which were or could have been litigated in a prior related representation proceeding.2 This policy is applicable even though a formal hearing on objections to an election has not been provided by the Board. In the instant case the Respondents' request for a hearing on their objections was originally made to the Board in the Respondents' exceptions to the Regional Director's report, and was necessarily decided adversely to the Respondents by the Board's Decision and Certification of Representatives. The Respondents do not contend that the evidence which they would offer at a hearing was previously unavailable or is newly discovered. In such a circumstance the findings of the Board constitute, at this stage of the proceedings, the law of the case and are binding on the Trial Examiner. The factual allegations of the complaint, if proved, establish the unfair labor practices asserted. The Respondents have admitted all essential allegations of the complaint except the result of the election and the Union's certified representative status. Of these I take official notice. The allegations of the complaint are therefore deemed to be true. The record thus establishes the following facts. An election was held at the Respondents' plants in the appropriate bargaining unit; the Union received a majority of the valid ballots cast; objections filed by the Respondents were found to be without merit and the Union accordingly certified by the Board as the collective- bargaining representative; and upon request of the Union to bargain, the Respondents refused. As there is no newly discovered or previously unavailable evidence bearing on the representation proceeding there are no issues litigable before me. All material issues having been decided by the Board, there are no matters requiring an evidential hearing. Accordingly, the General Counsel's motion for summary judgment is in order and is granted .3 I hereby make the following further findings: 1. THE BUSINESS OF THE RESPONDENTS (a) Respondents are, and have been at all times material herein, corporations duly organized under, and existing by virtue of, the laws of the State of New York. 2 Pittsburgh Plate Glass Company v N.L.R.B 313 U S 146, 162, Producers, Inc , 133 NLRB 701,704 ' The Puritan Sportswear Corp , 162 NLRB 13, Brush-Moore (b) At all times material herein Kling Factories, Inc., herein called Respondent Kling, has been an entirely owned subsidiary of Baumritter Corporation, herein called Respondent Baumritter, with common officers, ownership, directors, and operators, and they constitute a single-integrated business enterprise; the said directors and operators formulate and administer a common labor policy for the aforementioned Companies affecting the employees of said Companies. (c) Respondents, whose principal office is located in New York, New York, own and operate three plants, herein called the plants, located in Mayville, Falconer, and Frewsburg, New York, and are engaged at said locations in the manufacture and sale of wooden furniture products. The said plants of Respondents are its only facilities involved in this proceeding. (d) During the past year Respondents, in the course and conduct of their business operations, manufactured, sold, and distributed at the plants furniture products valued at in excess of $50,000, of which products valued in excess of $50,000 were shipped from the plants directly to States other than the State of New York. Respondents are now and have been at all times material herein, each individually and all collectively, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now , 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 All production and maintenance employees employed at the Respondents' factories located in Mayville, New York, Falconer, New York, and Frewsburg, New York, excluding office clerical employees, professional employees , guards, 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. On or about April 15, 1966, a majority of the employees of Respondents in the appropriate unit, by secret ballot, designated and selected the Union as their exclusive collective-bargaining representative pursuant to Section 9(a) of the Act, and on September 21, 1966, the Board certified the Union as such representative. Commencing on or about September 26, 1966, and continuing to date, the Union has requested, and is requesting, Respondents to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive collective-bargaining representative of all employees in the appropriate unit. On or about October 4, 1966, Respondents refused, and continue to refuse, to recognize and bargain with the Union as such representative. By thus refusing to recognize and bargain with the Union, the Respondents have refused to bargain collectively in violation of Section 8(a)(5) of the Act and have interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The Newspaper, Inc d/b/a The Portsmouth Times, 161 NLRB 1620, Frito-Lay, Inc , 161 NLRB 950. BAUMRITTER CORP. 299 aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, and the entire record in the case , and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER Baumritter Corporation; Kling Factories, Inc., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with District Lodge No. 65, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive collective-bargaining representative in the following appropriate bargaining unit: all production and maintenance employees employed at the Respondents' factories located in Mayville, New York, Falconer, New York, and Frewsburg, New York, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said appropriate unit as the exclusive collective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with District Lodge No. 65, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its Mayville, Falconer, and Frewsburg, New York, plants, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 3, shall be posted by the Respondents after being duly signed by an authorized representative, 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps have been 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 "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 " S 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 3, in writing , within 10 days from the date of this Order, what steps 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with District Lodge No. 65, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of all the following employees: All production and maintenance employees employed at our factories located in Mayville, New York, Falconer, New York, and Frewsburg, New York, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE WILL bargain collectively with the Union as the exclusive representative of the employees and, if an understanding is reached, sign a contract with the Union. BAUMRITTER CORPORATION; KLING FACTORIES, 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, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100.