Martin Stamping and Stove Co.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin Stamping and Stove Company and United Glass and Ceramic Workers of North America, AFL-CIO, CLC. Case 10-CA-8325 December 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On September 17, 1970, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment, finding no merit in various contentions made by Respondent in its Memorandum of Position in opposition to the General Counsel's Motion for Summary Judgment, and finding on the pleadings that Respondent had engaged in and was engaging in a certain unfair labor practice within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. The Trial Examin- er recommended that Respondent cease and desist from such unfair labor practice 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 and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed 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 Decision, the exceptions and supporting brief, and the entire record in the 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 Respondent, Martin Stamping and Stove Company, Athens, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.' I In footnote 8 of the Trial Examiner's Decision substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HAROLD X. SUMMERS, Trial Examiner: The case arises on a Motion for Summary Judgment, filed by counsel for the General Counsel, upon an admitted refusal by Martin Stamping and Stove Company (herein called Respondent) to bargain with United Glass and Ceramic Workers of North America, AFL-CIO, CLC (herein, Union). The Representation Proceeding i Upon a petition filed on May 28, 1969, under Section 9(c) of the Act by the Union, and pursuant to a Stipulation for Certification Upon Consent Election, approved by the Regional Director for Region 10 of the Board on July 10, 1969, an election was conducted on August 7, 1969, under the direction and supervision of the Regional Director among the employees in an appropriate bargaining unit, described hereinafter, of employees of Respondent. Upon conclusion of the election, on August 7, 1969, the Regional Director served on the parties a tally of ballots which showed that, of approximately l I1 eligible voters, 109 cast ballots, of which 58 were for the Union, 44 against, and 7 ballots were challenged. Thereafter, on August 14, 1970, Respondent filed timely objections, alleging, in substance, the following grounds for setting aside the election: 1. The Union threatened voters with bodily harm to compel attendance at a meeting. 2. The Union threatened employees with loss of job and economic hardships should the Union lose the election. 3. The Union, in a handbill distributed the day before the election, made material misrepresentations as to benefits gained by its bargaining elsewhere. 4. The Union, at a meeting held the day before the election, made a material misrepresentation as to a working condition prevailing at another plant at which the Union was bargaining agent. 5. The Union threatened voters with bodily harm if they did not vote for the Union. 6. The Union engaged in last minute electioneering at the polling place. On October 30, 1969, the Regional Director issued a Report on Objections, in which he discussed each of the above objections, along with the related evidence. He found that Respondent had submitted no evidence in support of Objections 1, 4, and 6; as for 2 and 5, he found (a) that there was no evidence of union responsibility, (b) that the versions of threats were inconsistent, and (c) that the alleged threats were not so aggravated in character as to preclude a free choice; and, as for 3, he found that there I Administrative or official notice is taken of the record in the representation proceeding, Case 10-RC-7797, 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 No 81, enfd 388 F 2d 683 (C A 4), Golden Age Beverage Co, 167 NLRB No. 24, 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., et at, 164 NLRB No 47, enfd, 397 F.2d 91 (C.A 7), Section 9(d) of the National Labor Relations Act 187 NLRB No. 75 MARTIN STAMPING AND STOVE CO. had been no material misrepresentations. Concluding that the objections lacked merit, he recommended that they be overruled and that the Union be certified as bargaining representative of the employees in the appropriate unit. Respondent filed exceptions with respect to the Regional Director's rulings on Objections 2, 3, and 5 and requested review of the same. The Board overruled the exceptions and adopted the Regional Director's findings and recommenda- tions. The Instant Unfair Labor Practice Case On May 11, 1970, the Union filed the unfair labor practice charge initiating this proceeding, alleging that Respondent had engaged and was engaging in specified unfair labor practices; and, on July 16, 1970, it filed the first amended charge, eliminating all allegations except that Respondent had refused and continued to refuse to bargain with the Union. On July 16, 1970, the Regional Director issued a Complaint and Notice of Hearing alleging that the Respondent had committed unfair labor practices in violation of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act, by refusing and continuing to refuse to bargain collectively with the Union as the exclusive collective- bargaining representative of all the employees in the appropriate unit described hereinafter. On July 23, 1970, the Respondent filed its answer to said complaint, in which it admitted most of the material allegations of the complaint, denied others, and pleaded affirmatively; in effect, it denied the commission of any unfair labor practices on the ground that the Board's certification of the Union as exclusive bargaining repre- sentative was invalid. On August 4, 1970, counsel for the General Counsel filed a Motion for Summary Judgment on the grounds that Respondent's answer raised no issues of fact or law requiring a hearing and that Respondent's answer only attempted to relitigate issues already resolved in the representation proceeding. On August 12, 1970, I issued a telegraphic order that Respondent file a memorandum of position with me on or before the close of business August 21, 1970. On August 21, 1970, Respondent's Memorandum of Position in Opposition to the General Counsel's Motion for Summary Judgment was received. Ruling on Motion for Summary Judgment The Respondent opposed the Motion for Summary Judgment on these grounds: (1) that granting the motion would deprive Respondent of a hearing, depriving it of due process of law; (2) that the Regional Director did not fully review and discuss the evidence submitted by Respondent in support of its objections; and (3) that there still exist unresolved factual issues requiring determination. These are among the grounds raised and passed on in the Board review of the Regional Director's Report on Objections following the related representation proceeding. 2 Krieger-Ragsdale & Co., Inc., 159 NLRB 490, enfd. 379 F.2d 517 (C.A. 7), cert. denied 389 U.S. 1041; N.L.R.B. v. Macomb Pottery, 376 F.2d 450 (C.A. 7); Howard Johnson Company, 164 NLRB No. 121; Metropolitan Life Insurance Company, 163 NLRB 579. See Pittsburgh Plate Glass Co. v. 559 Thus, Respondent merely reiterates issues and argument previously considered and decided by the Board. 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 proceeding.2 Respondent does not claim to present any newly discovered or previously unavailable evidence. Respondent does state that there are genuine, substantial material fact issues which have never been litigated in an adversary proceeding before the Board. The contention that denial of a hearing would deprive Respondent of due process of law is without merit. A hearing such as Respondent seeks is not a matter of right unless substantial and material issues are raised. Respon- dent cites the Bata Shoe Company3 decision as his authority in demanding a hearing, but that case, at page 826, states outright that ". . . 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." And, as stated previously, the Board, in the representation case related hereto, failed to find any substantial or material issues requiring a hearing. Respondent further directs the Trial Examiiner's attention to United States Rubber Company v. N. L. R.B., 4 as a situation where the court found that Respondent was effectively deprived of its only opportunity to be fairly heard in defense of the complaint when the Trial Examiner granted a motion for judgment on the pleadings. However, that case is distinguishable from the instant one in that, there, no opportunity existed to refute a representation in the Union's "midnight hour" letter to employees while here, as the Regional Director's Report on Objections adopted by the Board points out, a copy of the collective-bargaining agreement alluded to by the Union was made available in the plant office for all employees to inspect if they so desired. Thus, there are no unresolved matters requiring an evidentiary hearing. The General Counsel's Motion for Summary Judgment is consequently granted. On the basis of the record, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Alabama corporation with its principal office and place of business located in Athens, Alabama, where it is engaged in the manufacture and sale of electric heaters and related products. During the past calendar year, which period is represent- ative of all times material herein, the Respondent, in the course and conduct of its business operations, sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. The Respondent is now, and has been at all times N.L.R.B., 313 U.S. 146, 162; NLRB Rules and Regulations, Sections 102.67(f) and 102.69(c). 3 N.L.R.B. v. Bala Shoe Co., 377 F.2d 821 (C.A. 4). 4 373 F.2d 602, 607 (C.A. 5). 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material herein, an employer engaged in commerce within the meaning of Sections 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 PRACTICE The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(d) of the Act: All production and maintenance employees em- ployed by Respondent at Athens, Alabama, including shipping and receiving employees, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. On March 24, 1970, the Board certified the Union as the exclusive collective-bargaining representative of the em- ployees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Since on or about April 13, 1970, and at all times thereafter, Respondent did refuse, and continues to refuse, to bargain collectively with the Union as the collective- bargaining representative of the employees in the appropri- ate unit. By thus refusing to bargain collectively Respondent has engaged in unfair labor practices 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)(l) 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 upon the entire record and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDERS Martin Stamping and Stove Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Glass and Ceramic Workers of North America , AFL-CIO, CLC, as the exclusive collective-bargaining representative of the employees in the following appropriate bargaining unit- All production and maintenance employees em- ployed by Respondent at Athens, Alabama, including shipping and receiving employees, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as such 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 United Glass and Ceramic Workers of North America , AFL-CIO, CLC, 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 .6 (b) Post at its place of business in Athens, Alabama, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, in conspicu- ous 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 10, in writing, within 20 days from receipt of this recommended Order what steps the Respondent has taken to comply herewith .8 5 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 6 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 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 Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F 2d 600 (C A 5), cert denied 379 U S. 817, Burnett Construction Company, 149 NLRB 1419, 1421, enfd . 350 F 2d 57 (C A. 10) r 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." 8 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 wasting, 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 United Glass and Ceramic Workers of North America, AFL-CIO, CLC, as the exclusive collective-bargaining representative of all the following employees: All production and maintenance employees at Athens, Alabama, including shipping and receiv- ing employees, but excluding all office clerical employees, professional 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 under- MARTIN STAMPING AND STOVE CO. 561 standing is reached , we will sign a contract with the This is an official notice and must not be defaced by Union. anyone. This notice must remain posted for 60 consecutive days MARTIN STAMPING AND from the date of posting and must not be altered, defaced, STOVE COMPANY or covered by any other material. (Employer) Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, Dated By Peachtree Building, Room 701 , 730 Peachtree Street, N.E., ( Representative) (Title ) Atlanta, Georgia 30308, Telephone 404-526-5760.