Harris-Intertype Corp.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intertype Company, a Division of Harris- Intertype Corporation and International Union, United Automobile , Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO. Case 5-CA-3620. May 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On January 26, 1967, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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 to the Trial Examiner's Decision and a supporting brief. A reply brief was filed by the General Counsel. 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 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 Trial Examiner's Decision, the Respondent's exceptions, the briefs, and the entire record in the 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 hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, Intertype Company, a Division of Harris-Intertype Corporation, Win- chester, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Winchester, Virginia, on November 29, 1966, pursuant to a charge filed the preceding August 29 and a complaint issued October 12, arises out of a challenge by Respondent (herein called the Company) to the validity of the Board certification issued to the Charging Party (herein called the Union) following the latter's victory in a Board-conducted election. Upon the entire record, including all matters properly subject to official notice, and after consideration of the brief filed by the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATLON INVOLVED The Company, an Ohio corporation, engaged at Winchester, Virginia, in the manufacture and sale of matrices, annually ships products valued in excess of $50,000 to points outside the State and is engaged in commerce within the meaning of Section 2(6) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE A. The Representation Proceeding The Union filed a petition for certification on March 14, 1966, thereby initiating a proceeding which led to an election held June 21, 1966, and won by the Union, 111 to 91, with 5 ballots challenged. The Company filed objections to conduct affecting the election, but the Regional Director on August 5, 1966, overruled the objections and certified the Union as the statutory bargaining representative of the Company's production and maintenance employees. The Company requested Board review of this action, but the Board denied review on September 1, 1966, thereby setting the stage for the unfair labor practice proceeding which followed. In that proceeding, discussed below, the Company made no attempt to relitigate most of the issues it had raised at various stages of the representation proceeding. Consequently, I pretermit discussion here of most of the numerous grounds advanced by the Company for discussing or setting aside the representation proceeding. The Company, of course, is free to ask the Board or subsequent reviewing authority to examine alleged errors in the representation case, but-presumably because the Company recognized that matters which it litigated before the Regional Director and as to which it did not dispute the facts recited in his various determinations were not subject to reexamination by the Trial Examiner-the Company pressed before me only issues not fully explored in the earlier stages of the matter. B. The Unfair Labor Practice Proceeding At the hearing in the unfair labor practice case, General Counsel introduced evidence, which the Company did not controvert, establishing the Union's certification and the Company's express refusal to bargain with the Union and to furnish certain data requested by the Union. General Counsel then rested. The Company in preparation of its case had caused subpoenas duces tecum to be issued to the Regional Director and to an International representative of the Union. Both subpenas were quashed for reasons outlined below. The subpena to the Regional Director called for "all files, documents, reports, memoranda, affidavits, notes, correspondence, and records pertaining to [the Region's] investigation or investigations" in the representation proceeding. I granted General Counsel's motion to quash this subpena, on the ground that the matters subpenaed 164 NLRB No. 108 INTERTYPE CO. 771 would not be relevant to any issue properly before me. The Regional Director 's investigative file is not properly part of the record in this proceeding (Kearney & Trecker Corp. v. N.L.R.B., 209 F.2d 782 (C.A. 7)). The Company is free at subsequent stages to attack the validity of the Regional Director's rulings but not to probe into his files . Such files may well contain statements privileged against disclosure to the Company . N.L.R.B . v. National Survey Service, Inc., 361 F.2d 199, 206 (C.A. 7); Kaiser Aluminum & Chemical Corporation v. United States , 157 F. Supp. 939, 945-946 (U.S.C.C.). The Company made no allegation or other showing that it had a special need for the materials subpenaed sufficient to overcome these considerations. Cf. United States v. Reynolds, 345 U.S. 1. The Company's subpena to the Union 's representative called for "all files, documents , notes, minutes, and agenda of meetings pertaining to the union organizing campaign after the filing of [the representation petition]" and for "a list of the names of the [Union 's] In-Plant Organizing Committee ." ' The Company contended that matters called for in the subpena would be relevant to a consideration of the issues it desired to raise in the unfair labor practice proceeding. In the colloquy between counsel for the Company , counsel for the Union , and the Trial Examiner , company counsel pointed out that the identity of the members of the bargaining committee was. material to certain of the matters investigated by the Regional Director. Union counsel responded that the Union would answer questions as to whether particular named individuals were on its committee and would turn over a list of committee members to the Trial Examiner, but would resist a general disclosure of the committee roster. The Trial Examiner upon this representation was of the view that the Company's rights in the matter would be fully protected in the manner suggested by union counsel, and observed that company counsel could call union counsel as an adverse witness or could call some other witness competent to testify to these matters. The Company did not see fit to avail itself of the Union's offers. With respect to that part of the subpena calling for the Union's files , the Company urged that this material would be relevant to the contention that the Union had been the beneficiary of special favors from the Regional Director with respect to notice of the election and notice of eligibility to vote therein . As to these matters, the propriety of the Regional Director's conduct, as set forth in his various rulings, may be subjected to further review by the Board and the courts, but no factual issue with respect thereto is open before me, and in any event the subpena as issued is far too broad for that limited purpose. I therefore granted the motion to revoke. The Company then presented evidence as to only one matter,2 an objection to the election based on unlawful electioneering at the polls. This matter was included in the objections filed with the Regional Director, but he rejected it for failure of the Company to produce supporting evidence. At the hearing before me the Company claimed that it did not apprise the Regional Director of the names of supporting witnesses because the employee witnesses in question "refused to permit their names to be turned over to the Regional Office." This seems to me to be an insufficient basis for permitting the Company to litigate in the unfair labor practice proceeding a matter which should have been developed at the earlier stage. If the Company is prepared to subpena witnesses against their will in the later proceeding, the Company can just as easily identify them for the Regional Director at an earlier date. And if what really occurs is simply a change of heart on the part of the witnesses, so that they now appear voluntarily, this is something less than the degree of justification required to open to litigation an issue that should have been explored at the appropriate stage. Realizing that reviewing authorities might have a different view from mine as to the propriety of permitting the Company to present its evidence on this issue, I took all the testimony proffered by the Company. It establishes that on the day of the election while a number of employees were in line waiting to vote, employee Hawkins, who had already voted, said to employee Miller, who was at the end of the waiting line, "Why be up the creek without a paddle? They're going to win. You might as well vote yes." No other employee heard what Hawkins said to Miller. The record contains no evidence that Hawkins was on the union committee. The Company so alleged in its objections to the election, but it made no effort to support this allegation although, as noted above, both the Trial Examiner and counsel for the Union suggested procedures to company counsel under which he could have developed whether Hawkins was or was not on the committee. On this record, even assuming that the evidence offered by the Company is to be given full weight, the election should ' This subpena was personally served on Sunday, November 20, and under the Board's rules a petition to revoke should have been filed on the fifth working day thereafter, which (because of an intervening holiday) would have been Monday, November 28 Sections 102 31(b), 102 114(a), of the Board's Rules and Regulations, Series 8, as amended As the hearing was scheduled for 3 p in on November 28 a motion to revoke at that time would have been timely A late postponement of the hearing (issued November 23 but because of the intervening holiday probably not received until Friday, November 25) delayed it to 11 a in , Tuesday, November 29 Under all the circumstances, and mindful of the provision the rules are to be "liberally construed to effectuate the purposes and provisions of the Act" (Section 102 121), I entertained the oral motion to revoke, and, as will appear tafra, ultimately granted it After the close of the hearing, the Company on January 3, 1967, filed a motion to reopen record and to rescind revocation of this subpena, arguing that the motion to revoke was untimely Before I acted on that motion, the Company on January 17, 1967, filed a withdrawal of motion, in which it indicated that it abandoned any contention that the motion to revoke was untimely although it reserved its right to argue that on the merits the subpena should not have been revoked The motion to reopen and the withdrawal of motion are hereby incorporated into the record as T X Exh 1 and 2, respectively ' The Company also requested that I take official notice of Case 5-CB-671, which I did That matter arose on the Company's charge of unfair labor practices by the Union and was settled informally in an agreement which expressly recites that the Union does not admit violating the Act Its relevance to the instant proceeding is explored in the Direction of Election, fn 3 See also N I. R B v J I Case Company, 201 F 2d 597 , 600 (C A 9). N L R B v White Construction and Engineering Co , Inc , 204 F 2d 950 , 953 (C A 5). Kearney & Trecker Corp v N L R B , 209 F 2d 782, 787-788 (C A 7) 298-668 0-69-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not be set aside.3 The certification was therefore valid, and the refusal to honor it violated Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW The Company by refusing to bargain with the Union has engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. THE REMEDY I recommend the customary remedy, directing the Company to cease and desist from its unfair labor practice, to bargain with the Union upon the latter's request, and to post appropriate notices. As to the scope of the order, see the language suggested in N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 439. Accordingly, upon the foregoing findings and conclusions, and on the entire record I recommend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER Intertype Company, a Division of Harris-Intertype Corporation , its officers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with International lJnion, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees at the Company's Winchester , Virginia , plant , including library employees , dark room operators , punch specialists , set-up men, machine adjusters , and the lead girl , but excluding all office clerical employees , time study men, draftsmen, expediters , production control employees, data processors , and all guards and supervisors as defined in the Act. (b) Refusing to furnish the Union with pertinent data concerning the employees in the unit, their classifications, job descriptions , rates of pay , and other terms and conditions of employment. (c) In any manner interfering with the efforts of the above-named Union to bargain collectively with the above- named Company on behalf of the employees in the above- described unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request , bargain collectively with the above- named Union as the exclusive representative of all employees in the above -described unit, and embody in a signed agreement any understanding reached. (b) Post at its office at Winchester , Virginia, copies of the attached notice marked "Appendix."4 Copies of such notice to be furnished by the Regional Director for Region 5, shall , after being signed by an authorized representative of the Respondent, be posted immediately upon the 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 such notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith 5 Even if Hawkins was on the committee , the episode is too trivial to warrant setting aside the election 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 " 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 5, 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 bargain collectively, upon request, with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, as the exclusive representative of all employees in the certified unit described below concerning wages, rates of pay, hours of employment, and other conditions of employment and, if an understanding is reached, embody it in a signed agreement . The bargaining unit is: All production and maintenance employees at our Winchester, Virginia, plant, including library employees, dark room operators, punch specialists , set-up men, machine adjusters, and the lead girl, but excluding all office clerical employees, time study men, draftsmen, expediters, production control employees, data processors, and all guards and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with the Union or in any manner interfere with the efforts of the Union to bargain with us, on behalf of t1 employees in the appropriate unit. INTERTYPE COMPANY, A DIVISION OF HARRIS- INTERTYPE CORPORATION (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, 707 North Calvert Street, Baltimore , Maryland 21202, Telephone 752-8460, Extension 2100.