American Mutual Liability Insurance Co.

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Mutual Liability Insurance Company and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Local #122. Case 1-CA-6056 January 29, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 16, 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 prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's 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, as modified below. 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 as modified below and hereby orders that the Respondent, American Mutual Liability Insurance Company, Wakefield, Massachusetts, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: In the last indented paragraph of the Notice, between the words "WE WILL" and bargain, insert the words "upon request, ...." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING' CHARLES W. SCHNEIDER, Trial Examiner: Upon peti- tion for certification as collective-bargaining representa- ' Administrative or official notice is taken of the representation proceeding, Case 1-RC-9478. See Section 9(d) of the National Labor Relations Act. tive filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #122, herein called the Union, the Regional Director for Region 1 of the National Labor Relations Board on April 13, 1967, approved a Stipulation for Cer- tification upon Consent Election executed by American Mutual Liability Insurance Company, herein called the Respondent, and by the Union on April 12, 1967. The appropriate bargaining unit was stipulated to be the unit set out hereinafter. Pursuant to the stipulation, an election by secret ballot was conducted on May 4, 1967, under the direction and supervision of said Regional Director. There were ap- proximately 55 eligible voters, 54 cast ballots, of which 26 were for, and 26 against the Union. Two ballots suffi- cient in number to affect the results of the election were challenged. On May 11, 1967, the Respondent filed time- ly objections to the conduct of the election alleging: (1) the invalidity of the two challenged ballots, and (2) the lack of statutory authority, and if it is deemed within the Board's statutory authority, its unconstitutionality to require the Respondent to furnish a list of names and ad- dresses of its employees to the Regional Director in ac- cordance with Excelsior Underwear Inc., 156 NLRB 1236, who in turn furnished one such list to the Union. The Acting Regional Director of Region 1 conducted an investigation and on May 19, 1967, issued his report on objections and challenged ballots in which he recom- mended that the objections be overruled, that the chal- lenges to the two disputed ballots be overruled, and that a revised tally of ballots and Certification of Representa- tive be issued. On June 5, 1967, the Respondent filed timely' exceptions to the report on objections and chal- lenged ballots. On July 3, 1967, the Board issued its Decision and Certification of Representative in which it found that the Respondent's exceptions raised "no material or substantial issues of fact or law which would warrant reversal of the Acting Regional Director's findings or recommendations." The Board considered all of the Respondent's arguments in support of its conten- tion that the requirement of Excelsior Underwear Inc., 156 NLRB 1236, is invalid, and found such contention to be without merit. The Board found that the Union received 28 votes, which was a majority of the 54 valid votes cast. Accordingly, the Board adopted the Acting Regional Director's report and certified the Union as the bargaining representative under the Act. THE COMPLAINT CASE On August 21, 1967, the Union filed the unfair labor practice charge involved in the instant case, in which it al- leged that since August 8, 1967, the Respondent had refused to bargain with the Union. On September 15, 1967, counsel for the General Counsel, by the Regional Director for Region 1, 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 com- plaint were admitted, and others denied. 169 NLRB No. 86 AMERICAN MUTUAL LIABILITY INSURANCE CO. 419 In its answer the Respondent admitted most of the material allegations of the complaint including the ju- risdictional allegations, the appropriateness of the bar- gaining unit, the fact of the election, the certification, the Union's request to bargain and the Respondent's refusal. However, the answer denied that a majority of the em- ployees in the appropriate unit had designated and selected the Union as collective-bargaining representa- tive. Specifically the answer stated that the certification was invalid in that the Regional Director had erroneously held the challenged ballots to be valid and erred in finding no merit in the Respondent's objections to the Excelsior Underwear requirement. The answer further asserted that the Respondent's refusal to bargain was not an unfair labor practice and was for the sole and express purpose of securing judicial review of the Regional Director's ac- tion. On October 4, 1967, counsel for the General Counsel filed a motion for judgment on the pleadings contending that facts of official record establish the allegations of the complaint as a matter of law, and that therefore there is no necessity for a hearing. On October 5, 1967, I issued an order to show cause on the motion for judgment on the pleadings in which the parties were directed to show cause on or before October 20, 1967, as to whether the motion for judgment on the pleadings should be granted. On October 19, 1967, Respondent filed a response to General Counsel's motion for judgment on the pleadings and order to show cause wherein the Respondent moved that the Trial Examiner deny General Counsel's motion and dismiss the com- plaint in its entirety for failure of the General Counsel to establish the validity of the certification and a violation of the Act. RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS The Respondent contends that the certification is in- valid and that it is therefore under no legal obligation to meet with and to bargain with the Union. However, it is clear that all material issues of fact and law in this regard have been decided by the Board. The Respondent also contends, citing N.L.R.B. v. KVP Sutherland Paper Company, 356 F.2d 671 (C.A. 6), and Leedom v. Kyne, 358 U.S. 184, that granting the motion for judgment on the pleadings would be violative of the provision in Sec- tion 10(b) of the Act to the effect that "the person so com- plained of shall have the right ... to give the testimony at the place and time fixed in the complaint." I do not find this proposition supported. The questions of the validity of the election, the merit of the Respondent's objections to it, and whether the Union should be certified as the collective-bargaining representative were decided by the Board in the represen- tation proceeding. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances 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 No newly discovered or previously unavailable evidence is offered here by the Respondent, nor has it as- serted the existence of any special circumstances war- ranting reexamination of the Board's determinations. The request of the Union to bargain and the Respondent's refusal to bargain are admitted. It being established that the Union is the certified bargaining representative there are no issues litigable before me or to be resolved by hear- ing. Neither the Sixth Circuit Court's opinion in- KVP Sutherland Paper Company nor that of the United States Supreme Court in Leedom v. Kyne are authority to the contrary. Where there are no material issues to be resolved there is no requirement for an evidential hearing and summary judgment or judgment on the pleadings is appropriate. The Sixth Circuit Court recently and specifi- cally rejected the Respondent's present contention in the case of N.L.R.B. v. Tennessee Packers, Inc., 379 F.2d 172, 179 (C.A. 6). The court there said: Respondent also claims that it was unlawfully de- nied a hearing on these same issues in the unfair labor practice charge under direct review herein. Section 160(b), Title 29 U.S.C. provides: . The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. This requirement, respondent argues, has not been met because it was not permitted to relitigate its ob- jections previously considered by the Board in the certification proceedings. However, it is a well established principle of law that the Board is bound by its own prior determination in representation proceedings, and is not required to grant a hearing on representational issues ancillary to an unfair labor practice charge, unless the party requesting such a hearing has some newly discovered evidence. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, rehearing denied 313 U.S. 599; N.L.R.B. v. National Survey Service, Inc. [361 F.2d 199 (C.A., 7)]; N.L.R.B. v. B.H. Hadley, Inc., 322 F.2d 281 (C.A. 9). A party, in the absence of newly discovered evidence, is entitled to only one opportunity to question the Board's certification procedures. To require that the Board reopen and reconsider a matter that was subject to prior consideration would unnecessarily prolong the controversy,, and prevent the orderly settlement of labor, disputes. Not having presented anyllewly discovered evidence, the Board was not required, in the present unfair labor practice proceedings, to grant respondent a hearing on its ob- jections to the certification procedures. ` To substantially the same effect is N.L.R.B. v. Worchester Woolen Mills Corp., 170 F.2d 13, 16 (C.A. 1), where the court said: ... an issue covered and decided in unit proceedings cannot as of right be relitigated in a subsequent unfair labor practice proceeding. If such an issue is to be relitigated in- a subsequent unfair labor practice proceeding once it has been canvassed in a certifica- tion proceeding it is up to the party desiring to do so to indicate in some affirmative way that the evidence offered is more than cumulative. Otherwise a single trial of the issue is enough . . See Neuhoff Brothers Packers, Inc. V. N.L.R.B., 362 F.2d 611 (C.A. 5); Macomb Pottery Company, 157 2 N.L.R.B. v Macomb Pottery Company, 376 F 2d 450 (C.A. 7); Howard Johnson Company, 164 NLRB 80; Metropolitan Life In- surance Company, 163 NLRB 579; See Pittsburgh Plate Glass Co. v. N.L R B.. 313 U.S. 146, 162; Rules and Regulations , National Labor Relations Board, Series 8, as revised January 1 , 1965, Sec. 102.67(f). 350-212 0-70-28 420 DECISIONS OF NATIONAL NLRB 1616, enfd. 376 F.2d 450 (C.A. 7). And see N.L.R.B. v. Bata Shoe Company, 377 F.2d 821, 826 (C.A. 4); Krieger-Ragsdale & Company, Inc., 159 NLRB 490, and cases there cited , enfd. 379 F.2d 517 (C.A. 7); N.L.R.B. v. Lawrence Typographical Union No. 570, 376 F.2d 643 (C.A. 10); N.L.R.B. v. Air Con- trol Products of St. Petersburg, Inc., 335 F.2d 245 (C.A. 5). See also E-Z Davies Chevrolet, 161 NLRB 1380; Union Brothers, Inc., 162 NLRB 1505, and cases there cited; Metropolitan Life Insurance Co., 163 NLRB 579; Red-More Corporation, d/b/a Disco Fair, 164 NLRB 638; Harry T. Campbell Sons' Corporation, 164 NLRB 247; Ore-Ida Foods, Inc., 164 NLRB 438. There being no unresolved issues requiring an evidential hearing the motion of the General Counsel for judgment on the pleadings is granted. I. THE BUSINESS OF THE RESPONDENT Respondent, a Massachusetts corporation with its prin- cipal office and place of business in Wakefield, Mas- sachusetts, and other offices in Boston, Lynn, and Brockton, Massachusetts , is engaged at said locations in all phases of the casualty and property insurance busi- ness. Respondent annually derives from the interstate sale of insurance an amount exceeding $50,000. As is admitted by Respondent , it is, and has been at all times material herein , 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 The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 2(5) of the Act: All claim representatives, inside claim representatives , liability claim representatives , property loss claim representa- tives, property loss claim advisors, claim trainees, subrogation specialists , claim service representatives in the Boston Auto Claim District and Boston District Claim Offices including inside claim service representa- tives employed at the Boston Auto Claim District satel- lite offices in Wakefield, Lynn, and Brockton, but exclud- ing office clerical employees , managerial employees, guards, professional employees , and all supervisors as defined in Section 2(11) of the Act. On May 4, 1967, a majority of Respondent's em- ployees in the said unit selected the Union as their collec- tive-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director for Region 1 of the National Labor Relations Board in Case 1-RC-9478. On July 3, 1967, the National Labor Relations Board, after consideration of Respondent's objections to the above-described election and its challenges of the ballots cast, certified the Union as the exclusive collective-bar- gaining agent of the employees in the said unit. LABOR RELATIONS BOARD At all times since on or about July 3, 1967, and con- tinuously to the present, the Union has been the repre- sentative for the purpose 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 representa- tive of all the employees in the said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about August 2, 1967, the Union requested the Respondent to bargain collectively with it with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, as the collective- bargaining representative of Respondent's employees in the appropriate unit. On or about August 8, 1967, Respondent refused, and continues to refuse, to recognize and bargain with the Union as such representative. By thus refusing to recognize and bargain with the Union the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has inter- fered with, restrained, and coerced its employees in viola- tion 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, I recommend that the Board issue the following: ORDER American Mutual Liability Insurance Company, Wakefield, Massachusetts, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen. & Helpers of America, Local # 122, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All claim representatives, in- side claim representatives, liability claim representatives, property loss claim representatives, property loss claim. advisors, claim trainees, subrogation specialists, claim service representatives in the Boston Auto Claim District and Boston District Claim Offices including inside claim service representatives employed at the Boston Auto Claim District satellite offices in Wakefield, Lynn, and Brockton, but excluding office clerical employees, managerial employees, guards, professional employees, and all supervisors as defined in Section 2(11) of 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 Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local #122, as the exclusive representative of the employees in the ap- propriate unit described above, 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 Boston, Wakefield, Lynn, and Brockton, Massachusetts, offices, copies of the attached notice AMERICAN MUTUAL LIABILITY INSURANCE CO. 421 marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by an authorized representative, 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 in- sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.4 3 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." 4 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 1, 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 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 Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Local #122 as the exclusive collective-bargaining representative of all the following employees: All claim representatives, inside claim representatives, liability claim representatives,, property loss claim advisors, claim trainees, subrogation specialists, claim service represent- atives in the Boston Auto Claim District and Boston District Claim Offices including inside claim service representatives employed at the Boston Auto Claim District satellite offices in Wakefield, Lynn, and Brockton, but excluding office clerical employees, managerial em- ployees, guards, professional employees, and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT interfere with the efforts of said Union to negotiate for or represent the employees in the appropriate bargaining unit as exclusive collec- tive-bargaining representative. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in the appropriate unit and if an understanding is reached WE WILL sign a contract with the Union. Dated By AMERICAN MUTUAL LIABILITY INSURANCE COMPANY (Employer) (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, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3353.