Kerr Glass Mfg. Corp.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas A. Nelson d/b/a Trio Metal Cap Division, Kerr Glass Mfg. Corp. and International Molders and Allied Workers Union, Local 233, AFL-CIO. Case 13-CA-7960 December 11, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND ZAGORIA Upon a charge filed by International Molders and Allied Workers Union, Local 233, AFL-CIO, herein called the Union, the General Counsel for the National Labor Rlations Board, by the Regional Director for Region 13, issued a complaint dated August 4, 1967, against Thomas A. Nelson, d/b/a Trio Metal Cap Division, Kerr Glass Mfg. Corp., herein called Respondent, alleging that the Respond- ent did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and of the complaint and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on June 17, 1966, a majority of the Respondent's employees in a unit stipulated by the parties as appropriate, and subsequently so found by the Board,' in a secret- ballot election conducted under the supervision of the Regional Director for Region 13 of the National Labor Relations Board designated and selected the Union as their representative for the purpose of col- lective bargaining, and on May 15, 1967, the Union was certified. The complaint further alleges that since on or about May 15, 1967, and particularly on or about May 15, 25, and June 5, 1967, the Respond- ent has failed or refused to recognize and bargain with the Union as the exclusive bargaining agent of its employees, although the Union has requested and is requesting him to do so. On August 16, 1967, the Respondent filed his answer, admitting in part, and denying in part, the allegations of the com- plaint, presenting an affirmative defense, and requesting that the complaint be dismissed. On September 6, 1967, the General Counsel filed with the Board a Motion to Transfer Proceedings and a Motion for Summary Judgment, alleging that no genuine issue of fact pertinent to the alleged violation of Section 8(a)(5) of the Act exists. Thereafter, on September 8, 1967, the Board issued an Order Transferring Proceedings to the Board and Notice to Show Cause. On October 2, 1967, Decision and Certification of Representative issued May 15, 1967, in Case 13-RC-10828 (not published in NLRB volumes). 2 Amalgamated Industrial Union, Local No. 44, also participated in the March 29, 1966, election, but failed to receive any votes. Its withdrawal was approved by the Regional Director on June 7, 1966 the Respondent filed a Motion to Revoke Certifica- tion, and an Answer to the Notice to Show Cause, requesting the Board to deny the Motion for Sum- mary Judgment, revoke the Union's certification, dismiss the complaint, and direct that a new elec- tion be held. On the same day the Union filed a Memorandum in Opposition to Employee's Motion to Revoke Certification. On October 6, 1967, the Respondent filed a Motion to Strike the Memoran- dum in Opposition to Employer's Motion to Revoke Certification. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. RULINGS ON THE MOTION FOR SUMMARY JUDGMENT In its opposition to the General Counsel's Mo- tion for Summary Judgment the Respondent con- tends, in substance, that he is entitled to have a new election or at least a hearing on his Objection 2 con- cerning the failure to use foreign language ballots. This contention is without merit for the following reasons. On March 29, 1966, pursuant to a Stipulation for Certification upon Consent Election entered into by the parties hereto, an election was conducted under the direction of the Regional Director for Region 13. The tally of ballots showed that there were ap- proximately 58 eligible voters and that 58 ballots were cast, of which 29 were for the Union and 16 were against the participating labor organization with 13 challenges.2 On April 4, 1966, the Em- ployer filed timely objections to conduct affecting the results of the election. On August 6, 1966, the Respondent filed excep- tions to the Regional Director's report on objec- tions and requested the Board to set aside the Re- gional Director's overruling of Objection 2 and order a hearing on that objection. On September 8, 1966, the Board issued a Deci- sion and Order in which it deferred ruling on the Employer's exceptions until the issuance of a Hear- ing Officer's Report on Objection I and remanded the proceeding to the Regional Director for the pur- pose of arranging the hearing.3 Thereafter, a hearing was held before Hearing Officer Samuel Jacobson. In his Report on Objections, dated December 9, 1966, the Hearing Officer recommended that Ob- jection 1 be overruled and that, pursuant to the Board's Decision and Order of September 8, 1966, 3 In the absence of an exception , the Regional Director's recommenda- tion that the challenge to one of the ballots be sustained and that therefore it was unnecessary to report or make recommendations as the remaining challenged ballots , was adopted pro forma. 168 NLRB No. 105 TRIO METAL CAP DIV., KERR GLASS MFG. CORP. the case be transferred to the Board for a ruling on Objection 2. Thereafter, both the Union and the Respondent filed exceptions to the Hearing Of- ficer's report. On May 15, 1967, the Board adopted the findings and recommendations of the Hearing Officer in overruling Objection 1, and the findings and recommendations of the Regional Director in overruling Objection 2, and certified the Union as the exclusive bargaining representative of the em- ployees in the appropriate unit. Respondent's Mo- tion for Reconsideration, dated May 18, 1967, was denied by the Board on May 25, 1967. In his answer, the Respondent admits that on or about June 5, 1967, the Union requested the Respondent to bargain collectively with respect to wages, hours, and other terms and conditions of em- ployment, and that on June 13, 1967, he refused to bargain with the Union.4 In defense, the Respond- ent contends that (1) the underlying certification is invalid in view of the Board's recent decision in Fibre Leather Manufacturing Corp., 167 NLRB No. 51; (2) there, is new evidence with respect to the uses of foreign language ballots; (3) Respondent is entitled to a hearing at some stage with respect to the failure to use foreign language ballots; and (4) the Board erred in holding that Respondent's ex- ceptions to the Hearing Officer's report with respect to Respondent's other objection did not warrant reversal of the findings and recommenda- tion of the Hearing Officer. The Board, in Fibre Leather, supra, ordered a new election where there were 15 or 20 Portuguese- speaking employees in an 86-employee unit who could not read English. Both the notices and ballots were issued in English only thereby, under the cir- cumstances there present, failing to assure an effec- tive and informed expression of all employees of their true desires. The present case differs from Fibre Leather, supra, in that, while the ballots were in English only, the notices of election were in En- glish, Polish, and Spanish, thereby assuring the Polish- and Spanish-speaking employees of an op- portunity to make an effective and informed expres- sion of their true desires. S There is no merit in the Respondent's contention that the items he described in his memorandum in support of his answer constitute new evidence requiring a hearing. In his attempt to obtain a hear- ing, Respondent is attempting to relitigate issues de- cided by the Board in the earlier related proceedings. It is well established that, in the absence of newly discovered or previously unavailable evidence, a Respondent is not entitled 4 The General Counsel has attached to the Motion for Summary Judgment copies of letters purporting to show that the Union requested bargaining with Respondent by letter dated June 5, 1967, and that Respondent declined to bargain with the Union by letter dated June 13, 1967. The Respondent does not question the authenticity of these docu- ments. 5 Member Brown joins in the results reached in this decision but finds 803 to relitigate in a Section 8(a)(5) proceeding issues which were or could have been raised in a related representation proceeding. 6 All material issues having been either decided by the Board or admitted in the answer to the com- plaint, there are no matters requiring a hearing be- fore a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted.' On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, Thomas A. Nelson, is, and has been at all times material herein, an individual proprietor doing business under the trade name and style of Trio Metal Cap Division, Kerr Glass Mfg. Corp. At all times material herein, Re- spondent has maintained a plant and place of busi- ness at 317 North Francisco Avenue, Chicago, Illinois, where he is and has been at all times material herein continuously engaged in the manufacture of metal caps. During the last calen- der year, Respondent, in the course and con- duct of his business operations, purchased goods and materials valued in excess of $50,000, all of which was shipped to Respondent's plant directly from States outside the State of Illinois, and sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Illinois. The Respondent admits, and we find, that he is, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Molders and Allied Workers' Union, Local 233, AFL-CIO, is a labor organiza- tion within the meaning of 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 em- ployees have constituted and now constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act: All production and maintenance employees of it unnecessary to distinguish this case from Fibre Leather, supra, in which he did not participate. 6 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146 ' Respondent's Motion to Revoke Certification and Motion to Strike the Memorandum in Opposition to Employer's Motion to Revoke Certifi- cation are without merit and are hereby denied. 336-845 0 - 70 - 52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer, but excluding office clerical em- ployees, plant clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification tion 8(a)(5) and (1) of the Act, we shall order that he cease and desist therefrom and, upon request, bar- gain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. On June 17, 1966, a majority of the employees in said unit, voting in a secret-ballot election con- ducted under the supervision of the Regional Director for Region 13 of the National Labor Rela- tions Board, designated the Union as their representative for the purposes of collective bar- gaining with Respondent, and on May 15, 1967, the Board certified the Union as the exclusive bargain- ing representative of the employees in said unit, and the Union continues to be such representative. B. The Request to Bargain and the Respondent's Refusal On or about June 5, 1967, the Union requested and continues to request the Respondent to bargain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about June 13, 1967, the Respondent refused, and con- tinues to refuse, to bargain collectively with the Union as exclusive bargaining representative of the employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respondent in the ap- propriate unit described above; that the Union at all times since May 15, 1967, has been and now is the exclusive bargaining representative of all the em- ployees in the aforesaid unit, within the meaning of Section 9(a) of the Act; and that the Respondent has since June 13, 1967, refused to bargain collec- tively with the Union as the exclusive bargaining representative of his employees in the appropriate unit. By such refusal, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in Section III, above, occurring in connection with his opera- tions as 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 of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- CONCLUSIONS OF LAW 1. Thomas A. Nelson d/b/a Trio Metal Cap Division, Kerr Glass Mfg. Corp., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Molders and Allied Workers Union, Local 233, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Employer, but excluding office clerical em- ployees, plant clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since May 15, 1967, the above-named or- ganization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 13, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of the Respondent in the aforesaid 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. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- ent, Thomas A. Nelson d/b/a Trio Metal Cap Division, Kerr Glass Mfg. Corp., Chicago, Illinois, his officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages , hours, and other terms and con- ditions of employment with International Molders and Allied Workers Union, Local 233, AFL-CIO, TRIO METAL CAP DIV., as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees of the Employer, but excluding office clerical em- ployees, plant clerical employees , professional employees , guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exer- cise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment , and, if an un- derstanding is reached , embody such understanding in a signed agreement. (b) Post at his 317 North Francisco Avenue, Chicago, Illinois, place of business , copies, in En- glish, Polish, and Spanish, of the attached notice marked "Appendix.'" Copies of said notice, to be furnished by the Regional Director for Region 13, after being duly signed by the Respondent's representative , shall be posted by the Respondent immediately upon receipt thereof, and be main- tained by him 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 said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. N In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, En- forcing an Order." KERR GLASS MFG. CORP. APPENDIX NOTICE TO ALL EMPLOYEES 805 Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with International Molders and Allied Workers Union, Local 233, AFL-CIO , as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act, WE WILL, upon request, bargain with the above-named Union as the exclusive represent- ative of all our employees in the bargaining unit described below with respect to rates of pay, wages , hours, and other terms and condi- tions of employment , and if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance em- ployees of the Employer, but excluding of- fice clerical employees, plant clerical em- ployees, professional employees , guards, and supervisors as defined in the Act. THOMAS A. NELSON (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Il- linois 60604, Telephone 828-7570.