Scovill Manufacturing Co.

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scovill Manufacturing Company, Schrader Division and International Union of Electrical Radio and Machine Workers, AFL-CIO. Case 11-CA-4267 December 11, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 9, 1970, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding granting General Counsel's Motion for Summary Judgment on the ground that there are no unresolved issues requiring an evidentiary hearing and finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended. The Trial Examiner recommended that the Respondent cease and desist from such unfair labor practices 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. 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 considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this 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 adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Scovill Manufacturing Company, Schrader Division, Wake Forest, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. i Administrative or official notice is taken of the record in the representation proceeding, Case 11-RC-3038, as the term "record" is defined in Section 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 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a motion of counsel for the General Counsel for summary judgment, on the ground that Respondent seeks to raise defenses to allegations of the complaint based on matters decided in the representation proceeding and on an admitted refusal by the Respondent to bargain with the certified Charging Union. THE REPRESENTATION PROCEEDING 1 Upon petition filed on November 18, 1969, under Section 9 of the National Labor Relations Act (29 U.S.C.A. 159), by International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called the Union, the Union and Scovill Manufacturing Company, herein called the Respondent, entered into a Stipulation for Certification Upon Consent Election, which was approved by the Regional Director for Region 11 of the Board on November 28, 1969. Pursuant to the stipulation, an election in an appropriate unit, described hereinafter, was held on December 18, 1969, under the direction and supervision of the Regional Director to determine the question of representation. Upon conclusion of the election, the parties were furnished a tally of ballots, which showed that, of approximately 280 eligible voters, 132 cast valid ballots for the Union, 129 cast valid ballots against the Union, and 1 ballot was challenged. The challenged ballot was not sufficient to affect the results of the election. On December 29, 1969, the Respondent filed timely objections to the election, alleging in substance that the Union made substantial and material misrepresentations of fact calculated to inflame or to mislead or misinform employees. Respondent also contended that employees were coerced and restrained by the use of threatening telephone calls and by threats of loss of jobs and bodily harm if they did not vote for the Union and, further, that the Board agent conducting the election acted in such a manner as to deprive the employees of a free and uncoerced choice in the election. Respondent requested that a second election be held. On February 27, 1970, the Regional Director issued his Report on Objections. In the report, the Regional Director stated, in sum, that an investigation of said objections had been conducted under the direction of the Regional Director, that time was permitted all parties for presenta- tion of evidence bearing on the issues, and that, after considering all evidence secured in the investigation, he had reviewed the objections. The Regional Director thereupon discussed the objections, concluded that they were without merit, and recommended that they be overruled and that a certification of representative issue. 938, enfd 388 F.2d 683 (C A 4), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F.2d 26 (C A. 5), Intertype Co v Penello, 269 F Supp 573 (D C Va.); Intertype Co v. N L R.B, 401 F 2d 41 (C.A. 4), Follett Corp., 164 NLRB 378, enfd 397 F 2d 91 (C A 7), Section 9(d) of the National Labor Relations Act 187 NLRB No. 29 SCOVILL MANUFACTURING CO. 157 Thereafter, on March 16, 1970, Respondent filed timely exceptions to the Regional Director's Report on Objec- tions, in which exception was taken to all findings and recommendations of the Regional Director on the ground that they were contrary to the facts, the evidence, and the law. On May 12, 1970, the Board issued a Decision and Certification of Representative in which the Board stated, inter aka, that "the Board has considered the objections, the Regional Director's Report, and the Employer's exceptions, and hereby adopts the Regional Director's findings, conclusions, and recommendations." The Board further said, inter aka, that "[the Respondent's exceptions ] raise no issue requiring a hearing or which would warrant reversal of the Regional Director's findings and recommendations." Accordingly, the Board certified the Union as the collective-bargaining representative of the employees in the appropriate unit. THE UNFAIR LABOR PRACTICE CASE On June 2, 1970, the Union filed the instant unfair labor practice charge alleging that since the certification the Respondent has refused to recognize or meet with the Union as the collective-bargaining representative of the employees in the appropriate unit. On June 30, 1970, the Regional Director issued a complaint and notice of hearing alleging violations by the Respondent of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act, by refusing on May 27, 1970, to meet and negotiate with the certified union, though requested to do so. On July 9, 1970, Respondent filed its answer to complaint, in which Respondent admitted most of the material allegations of the complaint, but denied the commission of unfair labor practices, and prayed that the complaint be dismissed in its entirety. On July 20, 1970, counsel for the General Counsel filed a Motion for Summary Judgment, dated July 17, 1970. On July 22, 1970, I issued an Order to Show Cause on General Counsel's Motion for Summary Judgment, returnable August 5, 1970. Thereafter, on July 31, 1970, counsel for the Union, and on August 5, 1970, counsel for Respondent, filed their responses to the Order to Show Cause, and on August 6, 1970, Respondent filed its Counter Response to Order to Show Cause. No other responses have been received. RULING ON MOTION FOR SUMMARY JUDGMENT Respondent opposes granting of the Motion for Summa- ry Judgment. Respondent reiterates its contentions made in the representation proceeding, disputing the Board's findings and conclusions made therein and asserts that factual issues exist which can only be resolved by a hearing. 2 International Union of Electrical, Radio & Machine Workers v N L R B, (Tndee Products) 426 F 2d 1243 (C A D C) The court there held. in sum, that, where an employer's resistance to a valid Board certification is not in good faith, remedies going beyond an order to bargain may be appropriate 3 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A 7), cert denied 389 U S 1041 See Pittsburgh Plate Glass Co v N.L R B, 313 U S 146, 162, NLRB Rules and Regulations, Sections 102.67(f) and 102.69(c). The Union contends, inter aka, that summary judgment should be entered in favor of the General Counsel and, citing the Tiidee Products case as authority,2 that the hearing be kept open to afford the Union opportunity to introduce evidence to support an appropriate make-whole remedy. In its Counter Response to Order to Show Cause Respondent contends, inter alia, that the Tudee Products case is inapplicable to the instant proceeding. Respondent also asserts that it would be improper for a hearing to be opened for the restricted purpose urged by the Union. 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 an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding.3 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.4 Respondent simply seeks to relitigate issues previously disposed of in the representation proceeding. Respondent contends it would be depraved of due process of law if not given a hearing on the complaint, stating its need to examine witnesses and review authority which would show that the Union was improperly certified. Respondent further asserts there are unresolved issues of fact which require hearing, for the reason ". . . that the totality of the Union's conduct may not be properly revealed in the absence of a Hearing...." (Response to Order to Show Cause, p. 3) All contentions raised by the Respondent in its responses were determined by the Board in the representation proceeding and cannot be reviewed by the Trial Examiner in an unfair labor practice case, in the absence of previously unavailable evidence or special circumstances. Respondent not having raised any such contention which I find to be substantial, its request for a hearing must be denied. With respect to the Union's response and request for hearing to determine an appropriate make-whole remedy, I find the Tiidee Products case inapplicable. See United Steelworkers v. N.L.R.B. (Quality Rubber Co.), 430 F.2d 519 (C.A.D.C.), in which the same court, distinguishing the Tiidee Products case, said that: There is no indication in the record presently before us that the company wished unnecessarily to delay the final outcome of this dispute. In Tudee Products, on the other hand, the "position of the Company [was] palpably without merit with respect to its refusal to bargain." There is no evidence in the instant record to support a conclusion that the Respondent's resistance to the certifica- tion here was other than in good faith, and the Union has 4 O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C.A. 5) See N L R B v Air Control Window Products, Inc., 335 F.2d 245, 249 (C A 5) "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), cert denied 389 U.S 917• " . 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 " 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made no specific offer of proof in that regard. I therefore find the Titdee Products case inapplicable. In any event, there being no offer by the Union of specific evidence relevant to a make-whole remedy, there is no basis to order a hearing for such purpose. There thus being no unresolved matters requiring an evidentiary hearing, the motion of counsel for the General Counsel for summary judgment is granted, and the Union's request for a hearing on the remedy is denied.5 Upon the basis of the record before me, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation engaged in the manufacture of air valves and metal products at a plant in Wake Forest, North Carolina. During the past 12 months, which period is representative of all times material herein, Respondent received raw materials valued in excess of $50,000 at its Wake Forest, North Carolina, plant, directly from points outside the State of North Carolina. During the same period of time, Respondent manufactured, sold, and shipped finished products valued in excess of $50,000 directly to points outside the State of North Carolina. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is 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 purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed at the Employer's Wake Forest, North Carolina, plant, but excluding all office clerical employees, technical employees, professional employees, guards, watchmen and supervisors as defined in the Act. At all times since May 12, 1970, the Union has been the representative of a majority of the employees in the appropriate unit for purposes of collective bargaining. On or about May 26, 1970, by letter, the Union requested Respondent meet with it for the purpose of conducting 5 In its counter response the Respondent moved to strike par 2 of the Union's response, in which the Union stated generally that the Trial Examiner should take judicial notice that southern employers commonly seek dissipation of a union's representative status by dilatory tactics and contrived resistance . No authority is cited for such proposition , and I am not aware of any . The requested finding cannot therefore be made In advocacy rhetoric sometimes outruns evidence Unless scandalous or prejudicial, however, overstatement is not ordinarily ground for sinking argument Neither ground seeming applicable here, the statement may stand 6 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., 136 NLRB 785; Commerce Co, d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F.2d 600 collective-bargaining negotiations with respect to said employees. By letter dated May 27, 1970, Respondent refused to meet and negotiate with the Union with respect to the employees in the appropriate unit. By thus refusing to bargain collectively Respondent has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: RECOMMENDED 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 commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit .6 B. Scovill Manufacturing Company, Schrader Division, 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 represent- ative of the employees in the appropriate bargaining unit: All production and maintenance employees employed at the Employer's Wake Forest, North Carolina, plant, but excluding all office clerical employees, technical employees, professional employees, guards, watchmen and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as exclusive collective-bargain- ing representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive representative of all 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 place of business in Wake Forest, North Carolina, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 11, 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 the Respondent for a (C.A 5), cert denied 379 U.S. 817, Burnett Construction Co, 149 NLRB 1419, 1421, 350 F.2d 57 (C.A. 10, 1965). T 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." SCOVILL MANUFACTURING CO. 159 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 said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, in writing, within 20 days from receipt of this Recommended Order what steps the Respondent has taken to comply herewith.8 8 In the event these recommendations are adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 11, in writing, within 10 days from receipt of this Order what steps the Respondent has taken to comply herewith " APPENDIX guards, watchmen 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 under- standing is reached, we will sign a contract with the Union. SCOVILL MANUFACTURING COMPANY, SCHRADER DIVISION (Employer) 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 International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive collective-bargain- ing representative of all our following employees: All production and maintenance employees employed at our Wake Forest, North Carolina, plant, but excluding all office clerical employees, technical employees, professional employees, Dated By (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, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-2300.