Volt Technical Corp.

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Volt Technical Corporation and Atlanta Printing Pressmen and Assistants' Union, Local No. 8, subordinate to International Printing Pressmen and Assistants' Union of North America, AFL-CIO. Case 10-CA-7844 May 4, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 16, 1969, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled pro- ceeding, in which he granted the General Counsel's motion for summary judgment, found that Respondent, Volt Technical Corporation, had engaged in certain unfair labor practices as alleged in the complaint, and recom- mended that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. 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 con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made in this case and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, Respondent's exceptions, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below:' ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, ' In its exceptions Respondent contends, as it did at the several stages of the underlying representation matter, that the Regional Director's unit and eligibility determinations and his disposition of the challenges and objections in Case l0-RC-7626 are erroneous and contrary to law, and that the Board erred in failing to grant Respondent's requests for review Alternatively, Respondent contends that it is entitled, as a right of due process, to a hearing on the issues raised by the challenges and its objections to conduct affecting the results of the election We find no merit in Respondent's contentions We have reviewed the entire record in the underlying representation case and are satisfied that the Regional Director's disposition of the issues in his Decision and Direction of Election and Supplemental Decision and Certification of Representative are fully supported by the evidence, and are correct. Like the Trial Examiner we find no unresolved issues necessitating a hearing and, accordingly, we shall adopt the Trial Examin- er's findings, conclusions, and recommendations 2 The Trial Examiner found that the Board in Case 10-RC-7626 denied the Respondent's request for review of the Regional Director's Supplemental Decision and Certification of Representative, but, in doing so, found it unnecessary to pass upon his sustaining three challenges As the record shows that the Board's denial of review was unqualified, and left standing the Regional Director ' s action in sustaining all five challenges, the Trial Examiner's inadvertent finding is hereby corrected Volt Technical Corporation, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: In the last paragraph of the notice between the words "WE WILL" and "bargain" insert the words "upon re- quest " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding' CHARLES W. SCHNEIDER, Trial Examiner: Upon peti- tion filed under Section 9(c) of the National Labor Relations Act (29 U.S.C.A. 159(c)) on December 13, 1968, by the Printing Pressmen and Assistants' Union, Local No. 8, subordinate to International Printing Press- men and Assistants' Union of North America, AFL-CIO, herein called the Union, the Regional Director for Region 10 of the Board, after hearing, issued a Decision and Direction of Election dated February 14, 1969, in an appropriate bargaining unit, described hereinafter, of the employees of Volt Technical Corporation, herein called the Respondent. On February 24, 1969, Respondent filed a request for review with the Board in Washington, D.C., question- ing the appropriateness of the election unit and certain exclusions therefrom. This request was denied by the Board on March 10, 1969, as raising "no substantial issues warranting review." Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted by the Region- al Director on March 12, 1969, among the employees in the appropriate unit to determine the question of representation. Upon conclusion of the balloting, the parties were furnished a tally of the ballots which showed that of approximately 18 eligible voters, 8 cast valid votes for, and 4 cast valid votes against the Union, and 5 cast challenged ballots. Timely objections to the conduct of the election were filed by the Respondent, in which Respondent reiterated its objections to the appropriate unit , and further asserted that the Union offered certain material benefits to an employee for supporting the Union in the election. The Respondent requested a hearing on its objections. On April 14, 1969, the Regional Director for Region 10 issued his Supplemental Decision and Certification of Representative, in which he found the Respondent's objections to the election to be without merit and over- ruled them. The Regional Director further sustained ' Official notice is taken of the record in the representation proceeding, Case 10-RC-7628, as the term "record" is defined in Sec 102 68 and 102.69(f) of the Board's rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8, as amended) See LTV Electrosystems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB 151, enfd 415 F 2d 36, Intertype Co v Penello, 269 F.Supp 573 (D C Va , 1967), Intertype Co v N L R B , 401 F 2d 41 (C A 4, 1968), Follett Corp , et al , 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the National Labor Relations Act 182 NLRB No. 46 VOLT TECHNICAL CORP. the challenges on the ground that the voters involved were not regular part-time employees. The Regional Director thereupon certified the Union as the exclusive bargaining representative in the appropriate unit. No hearing was held on the Respondent's objections to the election. On April 28, 1969, the Respondent filed with the National Labor Relations Board a request for review asserting therein that the Regional Director for Region 10 had erred in summarily overruling, without hearing, its objections to election and in sustaining the above- mentioned challenges. This request was denied by the Board on June 2, 1969, as raising "no substantial issues warranting review." The Board found it unnecessary to rule on the issues raised with respect to the ballots of three of the voters on the ground that their votes could not affect the results of the election The Unfair Labor Practice Case On July 1, 1969, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged that since on or about April 15, 1969, the Respondent has refused to bargain collectively with the Union. On July 30, 1969, the General Counsel, by the Acting Regional Director for Region 10, issued a complaint and notice of hearing alleging that Respondent had com- mitted 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, the Respondent filed its answer and amended answer and affirmative defense on August 12, 1969, and August 28, 1969, respectively. In its answer Respondent denied each and all of the allegations in the complaint. In its amended answer Respondent admits the follow- ing allegations of'the complaint: (1) filing and service of the charge, (2) the jurisdictional facts, (3) that the Union is a labor organization within the meaning of the Act, (4) that the above-described election was held and that the Regional Director for Region 10 certified the Union, and (5) that the Respondent has refused to bargain with the Union. Respondent denied allegations in the complaint to the effect that (1) the unit is appropriate, (2) that the Union is the bargaining repre- sentative and (3 ) that the Respondent is engaging in unfair labor practices affecting commerce within the meaning of the Act. - In its amended answer Respondent also reiterated its contentions raised in the representation proceeding as to the appropriate unit, the exclusions therefrom, its objections to the election, reasserting that the deci- sions of the Regional Director on those issues, and the Board's refusal to review them, were erroneous, and that the failure to accord Respondent a hearing on the objections and challenges deprived Respondent of due process of law. On September 2, 1969, counsel for the General Coun- sel filed a motion for summary judgment, in which he stated there is no issue of fact or law requiring hearing and praying issuance of an order to show cause 315 as to why decision should not issue fikiding the violations alleged in the complaint, and that such Decision there- after issue. On September 5, 1969, I issued an order to show cause on General Counsel's motion for summary judg- ment. Thereafter, in response, the Respondent filed a cross motion to dismiss motion for summary judgment No other responses have been received Ruling on Motion for Summary Judgment In its cross motion the Respondent opposes the motion for summary judgment. The Respondent's basic position is that its objections to the election and to the, Regional Director's decisions were meritorious, and that in any event it is entitled to a hearingon the objections. It is established Board policy, in absence of newly discovered or previously unavailable evidence not to permit litigation before a Trial, Examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceed- ing 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 a Respondent does not claim to present any newly discovered or previously unavailable evidence. The Regional Director found in the representation proceeding that the Respondent's contentions as to the appropriate unit, the exclusions therefrom, the Respond- ent's objections to the election, and its position on the challenged ballots, were without merit The Board found that the Respondent's opposition to those conclu- sions raised "no substantial issues warranting review " At this stage of the proceedings those findings are the law of the case and binding on the Trial Examiner- though the Respondent is free to request the Board for reconsideration, and if the decision is adverse to seek review in the Court of Appeals. The Respondent's request that the Trial Examiner hold a hearing and take evidence on those issues is therefore denied. There are thus no unresolved matters requiring an evidential hearing. The General Counsel's motion for summary judgment is consequently granted. On the basis of the record I make the following further- 2 Krieger-Ragsdale & Co , Inc . 159 NLRB 490, enfd 379 F 2d 517 (C A 7, 1967), cert denied 389 U S 1041, NLRB v Macomb Pottery. 376 F 2d 450 (C A 7 1967), Has and Johnson Conipan, 164 NLRB 801, Metropolitan Life Insurance Compani. 163 NLRB 579 See Pittsburgh Plate Glass Co v N L R B , 313 U S 146, 162 (1941). NLRB Rules and Regulations Secs 102 67(f) and 102 69(c) 9 0 K Van and Storage, Inc , 127 NLRB 1537, enfd 297 F 2d 74 (C A 5, 1961) See Air Control Windoir Products of St Petersburg. 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 " See also N L R B v Bata Shoe Co . 377 F 2d 821. 826 (C A 4, 1967) " there is no requirement , constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification " 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Volt Technical Corporation, the Respondent, at all times material herein has been and is a Delaware corpora- tion, with branches in various cities in the United States, including Atlanta, Georgia, where it is engaged in engi- neering and technical service assistance . Only Respond- ent's Atlanta, Georgia, branch is involved in the instant proceeding. Respondent, during the past calendar year, which period is representative of all times material herein, sold and shipped goods and materials valued in excess of $50,000 directly to customers located outside the State of Georgia. Respondent is now 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 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 full-time and regular part-time lithographic produc- tion employees (offset press operators, cameramen, platemakers, strippers, and opaquers) of the Respondent at its Atlanta, Georgia, branch, excluding collators and other bindery employees, guards, and supervisors as defined in the Act, constitute an appropriate unit within the meaning of Section 9(b) of the Act. At all times since April 14, 1969, the Union has been the certified representative for the purpose of collective bargaining of the employees in the appropriate unit, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of 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. It is admitted and found that the Respondent refuses to bargain with the Union. By thus refusing to bargain collectively with the Union the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 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 A. For the purpose of determining the duration of the certification the initial year of certification shall be deemed to begin on the date the Respondent com- mences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.4 B. Volt Technical Corporation , its officers , agents, successors , and assigns shall: 1. Cease and desist from: ,(a) Refusing to bargain collectively with Atlanta Print- ing Pressmen and Assistants ' Union, Local No . 8, subor- dinate to International Printing Pressmen and Assistants' Union of North America , AFL-CIO, as the exclusive representative of the employees in the following appropriate bargaining unit: All full-time and regular part-time' lithographic pro- duction employees (offset press operators , camera- men, platemakers , strippers , and opaquers) of the Respondent at its Atlanta , Georgia , branch, exclud- ing collators and other bindery employees, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negoti- ate for or represent employees as such exclusive collec- tive-bargaining representative. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Upon request bargain collectively with Atlanta Printing Pressmen and ,Assistants ', Union, Local No. 8, subordinate to International Printing Pressmen and Assistants' Union of North America , AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment , and embody in a signed agreement any understanding reached. (b) Post at its office and place of business at its Atlanta, Georgia , branch, copies of the attached notice marked "Appendix."5 Copies of said notice , on forms to be furnished by the Regional Director for Region 10, shall , after being duly signed by an authorized repre- sentative of the Respondent , be posted by the Respond- ent 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. " The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co , Inc., 136 NLRB 785, Commerce Co dl bl a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C.A 5), cert denied 379 U S 817 (1964), Burnett Construction Co , 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965). ° In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order, herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." VOLT TECHNICAL CORP 317 1 (c) Notify the Regional Director for Region 10, in writ- ing, within 20 days from receipt of this Recommended Order, what steps the Respondent has taken to comply herewith 6 6 In the event this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 10 in writing within 10 days from receipt of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Atlanta Printing Pressmen and Assistants ' Union, Local No 8 , subordinate to International Printing Pressmen and Assistants ' Union of North America, AFL-CIO, as the exclusive collective-bargaining representative of all the following employees All full-time and regular part-time lithographic production employees (offset press operators, cameramen , platemakers , strippers and opa- quers) at our Atlanta, Georgia , branch , exclud- ing collators and other bindery employees, guards, and supervisors as defined in the Act WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative WE WILL bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, and if an understanding is reached WE WILL sign a con- tract with the Union Dated By VOLT TECHNICAL CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 730 Peachtree Street, N E , Atlanta, Georgia 30308, Telephone 404-526-5760 I