Electra Manufacturing Co.

24 DECISIONS OF NATIONAL Electra Manufacturing Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 16-CA-2987 January 5,1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 27, 1967, Trial Examiner Charles W. Schneider issued his Decision in the above-enti- tled 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. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclu- sions, 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 Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Electra Manufacturing Company, Mineral Wells, Texas, it 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: On October 20 and 21, 1966, an election was conducted at the Mineral Wells, Texas, plant of Electra Manufacturing Company, herein called Respondent, pursuant to a stipu- lation for certification upon consent election signed by Respondent and International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union, and approved by the Regional Director for Re- gion 16 on September 28, 1966. Of an appropriate unit of approximately 300 eligible voters, 284 ballots were cast, ' Official notice is taken of the representation proceeding, Case 16-RC-4426. See Section 9(d) of the National Labor Relations Act. LABOR RELATIONS BOARD 168 in favor of and 116 votes against the Union. No bal- lots were challenged. Pursuant to timely objections to conduct affecting the results of the election filed by Respondent on October 25, 1966, an investigation was conducted in accordance with Section 102.69 of the Board Rules and Regulations, Series 8, as amended. As a result of such investigation, a report on objections was issued by the Regional Director on January 13, 1967, recommending that the Board over- rule the Respondent's objections in their entirety and that the Union be certified. On February 6, 1967, Respondent filed timely excep- tions to the Regional Director's report on objections. On April 20, 1967, the Board issued its Decision and Certifi- cation of Representative in which it overruled Respond- ent's exceptions in their entirety and certified the Union as the exclusive bargaining representative of the em- ployees in the appropriate bargaining unit. The Complaint Case On May 9 and 17, 1967, respectively, the Union filed the unfair labor practice charge and first amended charge involved in the instant case in which it alleged that since on or about May 5, 1967, the Respondent refused and continues to refuse to bargain with the Union. On June 20, 1967, the General Counsel, by the Re- gional Director for Region 16, issued a complaint alleging that since on or about May 5, 1967, Respondent had committed unfair labor practices in violation of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer Respondent, inter alia, admitted the fol- lowing allegations of the complaint: (1) Jurisdictional, (2) that Respondent is a corporation and an employer en- gaged in commerce, (3) that the unit involved is ap- propriate, (4) that on or about September 28, 1966, a stipulation for certification upon consent election was signed by Respondent and the Union and was approved by the Regional Director for Region 16, (5) that on or about October 20 and 21, 1966, a majority of the em- ployees of Respondent in the stipulated unit voted in favor of the Union as their collective-bargaining representative, and (6) that Respondent though requested to bargain did refuse and has continued to refuse since on or about May 5, 1967, to bargain with the Union. Respondent denied the following allegations of the com- plaint: (1) that the Union is a labor organization, (2) that the Union is the exclusive bargaining agent of the em- ployees in the above-mentioned unit, and (3) that Respondent violated Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. The answer further stated that the Union was improperly and invalidly certified for reasons stated in Respondent's objections and exceptions and that the Union is not the representative of the employees. Thereafter the General Counsel filed a motion to strike portions of Respondent's answer to complaint and motion for judgment on the pleadings wherein he contends that Respondent's answer fails to constitute a valid defense to the allegations of the complaint, and that the facts of offi- cial record with respect to Case 16-RC-4426 and the ad- missions contained in Respondent's answer establish the violations contained in the complaint as a matter of law, and that therefore no hearing is necessary. 169 NLRB No. 19 ELECTRA MANUFACTURING COMPANY On August 29, 1967, I issued an Order to Show Cause on the General Counsels' motion in which order the parties were directed to show cause on or before Sep- tember 14, 1967, as to whether or not the motion should be granted. On September 13, 1967, Respondent filed a motion for additional time within which to respond. Such motion was granted and the parties were directed to respond on or before September 27, 1967. On September 25, 1967, Respondent filed a brief in op- position to the General Counsel's motion for judgment on the pleadings. RULING ON MOTION FORJUDGMENT ON THE PLEADINGS The Respondent contends that the October 20 and 21, 1966, election should be set aside on the basis of Re- spondent's objections and that the certification is con- sequently invalid. Additionally, the Respondent argues that since the United States circuit courts of appeals have considered issues raised in prior representation proceedings to determine whether or not the certification of the Union in question was valid and thus whether or not there was any duty to bargain in cases of the kind here presented, the Trial Examiner should here also consider issues raised in the prior representation proceeding. The -questions as to the validity of the election, the merit of Respondent's objections with respect to it, and whether the Union should be certified were raised by Respondent in its objections to conduct affecting the elec- tion, and in its exceptions to the Regional Director's re- port on objections, and were decided by the Board in the representation proceeding. It is thus clear that Respond- ent seeks to relitigate those issues here. This the Re- spondent may not do before the Trial Examiner. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner, in a complaint case, of issues which were or could have been litigated in a prior related representation proceeding.2 This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised;3 and that there are not such issues here has been effectively decided by the Board. In connection with its request that the Trial Examiner review the representation record the Respondent cites a number of decisions of circuit courts of appeals in which the courts have found certifications invalid. The circuit courts are empowered under Section 9(d) of the Act to review the correctness of the Board's determinations in representation cases. The Trial Examiner, however, has no such authority. He may not review the Board's final disposition of the representation issues or question its conclusions based on the existing record. The Respond- ent is free, in exceptions to this Decision, to request the Board to reconsider the determinations in the representa- tion case, and, in the event of an unfavorable final order 2 N.L.R.B. v Macomb Pottery, 376 F 2d 450 (C A 7, 1967); Howard Johnson Company, 164 NLRB 801; Metropolitan Life Insurance Com- pany, 163 NLRB 579. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); National Labor Relations Board Rules and Rgula- tions, Series 8, as amended, Sec. 102.67(1). ' D K. Van and Storage, Inc., 127 NLRB 1537, enfd. 297 F 2d 74 (C.A, 5, 1961). And see Air Control Window Products, Inc, 335 F.2d 245, 249 (C A. 5, 1964): "If there is nothing to hear, then a hearing is a senseless and useless formality." Cf. U.S Rubber Co, 373 F 2d 602 (C.A. 5, 1967). 25 by the Board , Respondent may request review of those determinations in an appropriate court of appeals. At this stage of the proceedings , however, absent newly discovered or previously unavailable evidence or special circumstances , the Board's disposition of the representa- tion matters is the law of the case and binding on the Trial Examiner. No newly discovered or previously unavail- able evidence is offered by the Respondent , or, special circumstances alleged. The refusal to bargain being conceded, there are no is- sues litigable before a Trial Examiner, and therefore no matter requiring hearing. Accordingly, the General Coun- sel's motion for judgment on the pleadings is granted. The General Counsel's motion to strike various portion of the answer is denied. Since the Respondent's answer raises no litigable issues, the allegations of the complaint are deemed admitted true and are so found. Board Rules and Regulations , Series 8, as revised January 1, 1965, Section 102 .20. However, the controverting averments of the answer may stand as pleadings which the Respond- ent may press before the Board or, in the event of ad- verse decision there,` before the court if it so chooses. Without a denial of the Union's representative status and of the allegations of unfair labor practices the Respondent would have no issue to contest before the court. N.L.R.B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851 (C.A. 1, 1967). I hereby make the following further: FINDINGS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Missouri corporation, having an office and place of business in Mineral Wells, Texas, where it is engaged in the manufacture, sale, and distribution of elec- tronics resistors . During the past 12 months Respondent, in the course and conduct of its business ' operations, purchased, transferred , and delivered materials and products valued in excess of $50,000 directly from points located outside the State of Texas, and during the same period sold and shipped finished products valued in ex- cess of $50,000 to points outside the State of Texas. 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.4 III. THE UNFAIR LABOR PRACTICES The following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees, including set-up men, stock handlers, plant clerical, shipping and receiving employees , and janitorial and custodial em- ' For lack of sufficient knowledge, information, or belief, the answer de- nies the allegation in the complaint that the Union is a labor organization within the meaning of Section 2 (5) of the Act The execution of a stipula- tion for certification on consent election by a party constitutes a represen- tation by him that the union involved is a labor organization within the meaning of the Act, and absent cause he is to be deemed estopped to deny the status in a related proceeding In any event, the Board in its Decision and Certification of Representative found the Union to be a labor or- ganization, and that finding is the law of the case at this point 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees employed at the Respondent's Mineral Wells, Texas, plant, but excluding all office clerical employees, professional, technical, and supervisory personnel as defined in the Act. On October 20 and 21, 1967, a majority of Respond- ent's employees in the appropriate unit selected the Union as their collective-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director for Region 16 of the National Labor Relations Board. At all times since October 21, 1967, and continuing to date, the Union has been the representative for the pur- poses of collective bargaining of the employees in the said unit, and by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the em- ployees in said unit for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. On or about May 5, 1967, and at all times thereafter Respondent did refuse, and continues to refuse, to bar- gain collectively with the Union as the bargaining representative of the employees in the appropriate unit. By such action the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For purposes of determining the effective period of duration of the certification, the initial year of certifica- tion shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit.5 B. Electra Manufacturing Company, Mineral Wells, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following ap- propriate unit: All production and maintenance employees, including set-up men, stock handlers, plant clerical, shipping and receiving employees, and janitorial and custodial em- ployeesemployed at the Respondent's Mineral Wells, Texas, plant, but excluding all office clerical employees, professional, technical, and supervisory personnel as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said ap- propriate 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 Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive representative of the em- ployees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and condi- tions of employment and embody in a signed agreement any understanding reached. (b) Post at its Mineral Wells, Texas, plant, copies of the attached notice marked "Appendix. 116 Copies of said notice, on forms provided by the Regional Director of Region 16, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent 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 16, in writing, within 20 days from receipt of this Decision, what steps it has taken to comply herewith.7 s The purpose of this provision is to ensure that the employees in the appropriate unit will be accorded the statutorily prescribed services of their selected bargaining agent for the period provided by law. See Mar- Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company dlbla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F. 2d 600 (C.A. 5, 1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). 6 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 Ap- peals 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 said Regional Director, in writing, within 10 days from the date of this Order , what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT refuse to bargain collectively with International Union of Electrical , Radio and Machine Workers , AFL-CIO, as the exclusive bar- gaining representative of all the following employees: All production and maintenance employees, in- cluding set-up men , stock handlers , plant cleri- cal, shipping and receiving employees , and jani- torial and custodial employees employed at our Mineral Wells , Texas, plant, but excluding all of- fice clerical employees , professional , technical, and supervisory personnel as defined in the Act. WE WILL NOT in any like or related manner inter- fere with , restrain, or coerce employees in the exer- cise of their rights under the Act. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees ELECTRA MANUFACTURING COMPANY 27 in the bargaining unit, and if an understanding is This notice must remain posted for 60 consecutive reached we will sign a contract with the Union . days from the date of posting and must not be altered, defaced , or covered by any other material. ELECTRA M ANUFACTURING If employees have any question concerning this notice COMPANY or compliance with its provisions, they may communicate (Employer) directly with the Board's Regional Office, Room 8A24, Dated By Federal Office Building, 819 Taylor Street, Fort Worth, (Representative) (Title) Texas 76102. Telephone 334-2921.