Sola Basic Industries, Inc.

HEVI-DUTY ELECTRIC COMPANY 929 Hevi-Duty Electric Company, A Division of Sola ruled without hearing, and that the certification is Basic Industries, Inc. and Communications Work- consequently invalid. ers of America, AFL-CIO. Case 11-CA-3567 The case involves an employer's refusal to bar- July 1, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On May 13, 1968, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. 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 orders that Respondent, Hevi-Duty Electric Com- pany, a Division of Sola Basic Industries, Inc., Goldsboro, North Carolina, its officers, agents, suc- cessors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order.' ' Delte from paragraph 2(b) of the Trial Examiner 's Recommended Order that part thereof which reads "to be furnished " and substitute therefor "on forms provided TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Trial Examiner: The case involves an employer's refusal to bargain with a certified union on the ground that the employer's objections to the election were improperly over- 172 NLRB No. 98 gain with a certified union on the ground that the employer's objections to the election were im- properly overruled without hearing , and that the certification is consequently invalid. Upon a charge filed on March 12, 1968, by Com- munications Workers of America, AFL-CIO, herein called the Union , the General Counsel for the National Labor Relations Board , by the Re- gional Director for Region 11, issued a complaint and notice of hearing dated March 14, 1968, against Hevi-Duty Electric Company, a Division of Sola Basic Industries, Inc., Goldsboro, North Carolina, herein called the Respondent , alleging that the Respondent had engaged in and was engag- ing in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that pursuant to a Stipulation for Certification Upon Consent Election an election involving the Union and the Respon- dent was held on November 1, 1967, in an ap- propriate unit hereinafter described , in which the Union received a majority of the valid votes cast; that upon timely objections filed by the Respondent to conduct assertedly affecting the results of the election the Regional Director , after having con- ducted an investigation , issued his report on objec- tions on December 4, 1967, recommending that the objections be overruled and that the Union be cer- tified; that the Respondent thereafter filed excep- tions to the Regional Director 's report on objec- tions; that on February 12, 1968, the Board issued its Decision and Certification of Representative adopting the Regional Director 's findings and recommendations and certifying the Union with the statement that the Respondent 's objections raised no material or substantial issues of fact or law war- ranting reversal of the Regional Director 's findings and recommendations or requiring hearing; that commencing on or about February 17, 1968, the Union requested the Respondent to bargain for the appropriate unit, and that commencing on or about February 27, 1968, the Respondent refused to bar- gain with the Union, although the Union is the col- lective-bargaining representative. On March 27 , 1968, the Respondent filed its answer in which it admitted certain allegations of the complaint and denied others . Specifically the answer admits the jurisdictional allegations, the ap- propriateness of the bargaining unit , the fact of the ' Official notice is taken of the record in the representation proceeding, Hew-Duty Electric Co , Case I I -RC-2623, as the term "record" is defined in Sections 102 68 and 102 69(f) of the Board 's Rules and Regulations and Statements of Procedure, National Labor Relations Board , Series 8, as revised January I, 1965 354-126 O-LT - 73 - pt 1 - 60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election and the certification of the Union, the Union's request to bargain, and the Respondent's refusal thereof. The answer denies, however, that the Union is the representative of the employees and denies the commission of unfair labor prac- tices. Affirmatively the answer contests the validity of the election and the certification, and the failure to grant a hearing on its objections. On March 28, 1968, counsel for the General Counsel filed a Motion for Summary Judgment on the ground that the pleadings disclose no factual matter in dispute requiring hearing and that the General Counsel is therefore entitled to judgment as a matter of law. On April 1, 1968, I issued an Order To Show Cause (amended on April 2, 1968) on the Motion for Summary Judgment returnable April 15, 1968. Thereafter the Union filed a memorandum brief in support of the General Counsel's Motion for Sum- mary Judgment and the Respondent a memoran- dum in opposition to the motion. The Respondent in its memorandum urging that a Board decision' issued subsequent to the Board's Decision and Certification of Representative established a new rule governing the previous determinations of fact by the Regional Director and the Board, and therefore required hearing, I issued a further order on April 18, 1968, deferring ruling on the Motion for Summary Judgment in order to afford the Respondent opportunity to file with the Board a motion for reconsideration of the Decision and Certification of Representative. On May 7, 1968, the Board issued its Order denying the mo- tion of the Respondent for reconsideration, finding that the Milchem case "clearly inapposite" and that the motion for reconsideration constituted nothing not previously considered by the Board. The issue is therefore whether the General Coun- sel's Motion for Summary Judgment should be granted. RULING ON MOTION FOR SUMMARY JUDGMENT these circumstances the Board's disposition of the representation matter constitutes the law of the case at this stage of the proceeding. The refusal to meet and confer with the Union being conceded, the refusal to bargain is established; there are no is- sues litigable before a Trial Examiner, no matter requiring hearing, and summary judgment is there- fore appropriate.5 The General Counsel's Motion for Summary Judgment is granted, and on the basis of the record I make the following further: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Wisconsin corporation engaged in the manufacture of transformers and other elec- trical devices at its Goldsboro , North Carolina, plant, which plant is the only one involved in this proceeding. Respondent, during a typical 12-month period, which period would be representative of all times material herein , expects to receive goods and materials valued in excess of $50,000, which goods and materials will be shipped to its Goldsboro, North Carolina, plant directly from points and places outside the State of North Carolina. During the same period of time , Respondent expects to produce and ship products valued in excess of $50,000 from its Goldsboro, North Carolina, plant to points and places 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 now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. In the absence of newly discovered or previously unavailable evidence or special circumstances it is established Board policy not to permit litigation be- fore 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.3 This policy is applicable even though no for- mal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial or material issues are raised by the ob- jections." That there is no such issue here has been decided by the Regional Director and the Board. In ' Milchem, Inc, 170 NLRB 362. 'Howard Johnson Company, 164 NLRB 801, Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co. v N.L.R B, 313 U S 146, 161-162 (1941), Rules and Regulations of the Board, Secs. 102 67(f) and 102 69(c) 4 O.K Van Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74 (CA 5, III. THE UNFAIR LABOR PRACTICES All production and maintenance employees em- ployed by Respondent at its Goldsboro, North Carolina, plant, excluding office clerical employees, production control expediters, professional em- ployees, technical employees, confidential em- ployees, guards and supervisors, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. At all times since February 12, 1968, the Union has been, and is now, the representative of the 1961), LTV Electrosystems, Inc. v N L R.B., 388 F 2d 683 (C A 4, 1968) And see N.L R B v Air Control Products of St Peterburg, Inc, 335 F.2d 245, 249 (C A. 5, 1954)• " If there is nothing to hear , than a hearing is a senseless and useless formality " ' LTV Electrosystems v N L R B, supra HEVI-DUTY ELECTRIC COMPANY 931 majority of the employees in the appropriate unit for purposes of collective bargaining and by virtue of Section 9(a) of the Act has been and is now the exclusive bargaining representative of all the em- ployees in said unit for the purposes of collective bargaining. Commencing on or about February 17, 1968, and continuing to date, the Union has requested, and is requesting, Respondent to bargain collective- ly with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment as the exclusive bargaining representative of all employees of Respondent in the appropriate unit. Commencing on or about February 27, 1968, and continuing at all times thereafter, Respondent did refuse, and continues to refuse, to bargain col- lectively with the Union as the exclusive collective- bargaining representative of the employees in the appropriate unit. By refusing to bargain collectively with the representative of its employees, the Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, I recommend that the Board issue the following; ORDER A. For the purpose of determining the effective period of the certification, the initial year of certifi- cation 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 units B. Hevi-Duty Electric Company , a Division of Sola Basic Industries , Inc., Goldsboro, North Carolina, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from (a) Refusing to bargain collectively with Com- munications Workers of America, AFL-CIO, as the exclusive collective -bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Goldsboro, North Carolina, plant, excluding office clerical employees, production control expediters, professional employees , technical employees, confidential employees, guards and super- visors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) 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 Communications Workers of America , AFL-CIO. as the exclusive representative of the employees 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 Goldsboro, North Carolina, plant copies. of the attached notice marked "Appendix. "7 Copies of said notice , to be furnished by the Re- gional Director for Region 11, 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 con- secutive days thereafter, in conspicuous places, in- cluding 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 the receipt of this Decision, what steps have been taken to comply herewith.8 6 The purpose of this provision is to ensure that the employees in the ap- propriate 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. d/b/a Lantar Hotel, 140 NLRB 226, 229, enfd 328 F.2d 600 (C.A 5, 1964 ), Burnett Construction Co, 149 NLRB 1419, 1421,enfd 350F.2d57(C.A 10, 1965) ' 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 " 8 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Re- gion 1 I, 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 Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Communications Workers of America, AFL-CIO, as the exclusive collective -bargain- ing representative of all the following em- ployees: All production and maintenance em- ployees at our Goldsboro , North Carolina, plant, excluding office clerical employees, production control expediters, profes- sional employees , technical employees, confidential employees , guards and super- visors. WE WILL NOT interfere with the efforts of said Union to negotiate for or represent the 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the appropriate bargaining unit as exclusive collective-bargaining representa- tive. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in the appropriate unit and if an un- derstanding is reached we will sign a contract with the Union. HEVI-DUTY ELECTRIC COMPANY, A DIVISION OF SOLA BASIC INDUSTRIES, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, 16th Floor, Wachovia Building , 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911.