Spaulding Fibre Co., Inc.

MYCALEX DIVISION Mycalex Division of Spaulding Fibre Company, Inc and United Automobile, Aerospace and Agricultur- al Implement Workers of America Case 22-CA-5027 December 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on July 21, 1972, by United Automobile, Aerospace and Agricultural Implement Workers of America, herein called the Union, and duly served on Mycalex Division of Spaulding Fibre Company, Inc, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, issued a complaint on August 22, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 before an Administrative Law Judge' were duly served on the parties to this proceeding With respect to the unfair labor practices, the complaint alleges in substance that on June 20, 1972, following a Board election in Case 22-RC-5198 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate, 2 and that, commenc- ing on or about July 7, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so On August 31, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint On September 13, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment Subsequently, on September 26, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted Respon- 1 The title of Trial Examiner was changed to Administrative Law Judge ' effective August 19 1972 2 Official notice is taken of the record in the representation proceeding Case 22-RC-5198 as the term record is defined in Secs 102 68 and 102 69(f) of the Board s Rules and Regulations Series 8, as amended See LTV Electrosystemr Inc 166 NLRB 938 enfd 388 F 2d 683 (C A 4 1968) Golden Age Beverage Co, 167 NLRB 151 Intertype Co v Penello 269 F Supp 573 (D C Va 1967) Follett Corp 164 NLRB 378 enfd 397 F 2d 91 (C A 7 1968), Sec 9(d) of the NLRA 3 The ballot was marked with the word NO printed in pencil on the 767 dent thereafter filed a response to Notice To Show Cause, with attached affidavits Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel Upon the entire record in this proceeding, the Board makes the following RULING ON THE MOTION FOR SUMMARY JUDGMENT In its answer to the complaint herein, Respondent contends that the Board improperly certified the Union as the exclusive bargaining representative of Respondent's employees in the appropriate unit In support of this contention, Respondent, in its affidavits in opposition to the Motion for Summary Judgment, argues that the Regional Director failed to count a valid "no" vote cast in the underlying representation election,3 and that, in any event, the voided ballot raised a question as to the intent of the voter, thereby requiring the Regional Director to conduct a hearing to adduce evidence on the circumstances surrounding the election in order to determine that intent The General Counsel contends that the Respondent is attempting to rehtigate the issues it raised in the related representation case We find meet in the General Counsel's position A review of the entire record in the representation proceeding in Case 22-RC-5198 reveals that the election conducted on March 10, 1972, pursuant to a Stipulation for Certification Upon Consent Election, resulted in a vote of 57 to 51 in favor of the Union, with 7 ballots challenged 4 The challenged ballots were sufficient in number to affect the results of the election Thereafter, the Respondent filed timely objections to conduct affecting the results of the election, alleging, in substance, that the Board agent had refused to count the two ballots which he declared void and which in fact were valid After investigation, the Regional Director, on April 14, 1972, issued his report on Objections and Challenges in which he recommended that the objections be overruled, 5 that one of the two previously disputed ballots be considered void, as it was ambiguous on its face and did not clearly indicate the voter's intent, that the other disputed YES side of the ballot directly below the YES square and had no other markings 4 At the election the Board agent found that two ballots were void Upon the Respondents immediate objection the Board agent placed the two disputed ballots into envelopes provided for challenged ballots and the two ballots were thenceforth treated as challenged ballots 5 As the Regional Director subsequently treated the two disputed ballots as challenged ballots he found that the substance of Respondents objections had been rendered moot and thus did not raise substantial or material issues with respect to the conduct of the election 200 NLRB No 93 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballot be counted, that the challenge to one other ballot be sustained, and that the challenges to the remaining four ballots be overruled The Regional Director further recommended that these latter four ballots should not be opened and counted if the Board adopted his other recommendations, as they then would not be determinative of the election Thereafter, the Respondent filed timely exceptions to the Regional Director's report, and a supporting brief, contending that the Regional Director had erred in treating the two previously disputed ballots as "challenged" rather than "void" ballots, that the ballot declared "void" by the Regional Director was clearly valid under Board law, and that the Regional Director had erred in not opening and counting the remaining four ballots, the challenges to which were previously overruled On June 20, 1972, the Board issued its Decision and Certification of Representative finding that Respondent's exceptions raised no substantial issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations, adopting his report and recommendations, and duly certifying the Union With respect to the Respondent's contention herein that the Regional Director failed to count a valid "no" vote cast in the representation election, had treated two void ballots as challenged, and failed to open and count four ballots, the challenges to which he had overruled, it is well settled that in the absence of newly discovered or previously unavailable evi- dence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to rehtigate issues which were or could have been litigated in a prior representation proceed- ing 6 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding However, Respondent, in its response to the Motion for Summary Judgment, for the first time contends that since the issue raised with respect to the voided ballot is concededly one of determining the "intent" of the voter, it is entitled, at the very 6 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941) Rules and Regulations of the Board Secs 102 67(f) and 102 69(c) 9 4llted Foods Inc 189 NLRB No 79 and cases cited in fn 6 Clarytona Manor Inc 192 NLRB No 114 and cases cited in fn 3 minimum, to a factual hearing to adduce evidence on the circumstances surrounding the election in order to determine that intent We find no merit in this contention As indicated above, the Regional Direc- tor, in his Report on Objections and Challenges, determined as a matter of law that the disputed ballot did not clearly manifest the voter's intent and the Board determined that Respondent's contentions with respect to the voided ballot raised no substantial issues of fact or law which would require reversal of the Regional Director's findings and recommenda- tions We note in this regard that ordinary concepts of fairness require that the validity of a ballot be determined by its content, and that where this cannot be ascertained in a manner free from ambiguity, the ballot must be deemed void Parol testimony as to a voter's intent, in such circumstances, is incompetent It is well established that parties do not have an absolute right to a hearing on objections to the election It is only when the moving party presents a prima facie showing of "substantial and material" issues that he is entitled to an evidentiary hearing 7 It is clear that absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitu- tional requirements 8 We shall, accordingly, grant the General Counsel's Motion for Summary Judgment On the basis of the entire record, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a New Jersey corporation with its principal office and plant at 125 Clifton Boulevard, Clifton, New Jersey, and is engaged in the manufac- ture, sale, and distribution of glass bonded mica components and related products During the fiscal year ending June 30, 1972, a representative period, Respondent caused to be manufactured, sold, and distributed at said plant, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plant in interstate commerce directly to States of the United States other than New Jersey We find, on the basis of the foregoing, that Respondent is, 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, and that it will effectuate the policies of the Act to assert jurisdiction herein 8 Amalgamated Clothing Workers of America v N L KB 424 F 2d 818 828 (C A D C 1970) NLRB v Golden Age Beverage Co 415 F 2d 26 32 (CA 5 1969) MYCALEX DIVISION II THE LABOR ORGANIZATION INVOLVED United Automobile, Aerospace and Agricultural Implement Workers of America is a labor organiza- tion within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Representation Proceeding 1 The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act All production and maintenance employees employed at Respondent's Clifton, New Jersey, plant, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act, and all other employees 2 The certification On March 10, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 22, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent The Union was certified as the collective-bargaining representative of the em- ployees in said unit on June 20, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act B The Request To Bargain and Respondent's Refusal Commencing on or about July 7, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit Com- mencing on or about July 7, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit Accordingly, we find that the Respondent has, since July 7, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 769 The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement In order 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, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit See Mar-Jac Poultry Company, Inc, 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) The Board, upon the basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW 1 Mycalex Division of Spaulding Fibre Compa- ny, Inc, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 United Automobile, Aerospace and Agricul- tural Implement Workers of America is a labor organization within the meaning of Section 2(5) of the Act 3 All production and maintenance employees employed at Respondent's Clifton, New Jersey, plant, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since June 20, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act 5 By refusing on or about July 7, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 6 By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Mycalex Division of Spaulding Fibre Company, Inc, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Automobile, Aerospace and Agricultural Implement Workers of America as the exclusive bargaining representative of its employees in the following appropriate unit All production and maintenance employees em- ployed at Respondent's Clifton, New Jersey, plant, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act, and all other employees (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action which the Board finds will effectuate the policies of the Act (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement (b) Post at its Clifton, New Jersey, facility copies of the attached notice marked "Appendix "9 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith 9 In the event that this 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 read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with United Automobile, Aerospace and Agricultural Imple- ment Workers of America as the exclusive representative of the employees in the bargaining unit described below WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment The bargaining unit is All production and maintenance employees employed at Respondent's Clifton, New Jersey, plant, excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act, and all other employees MYCALEX DIVISION OF SPAULDING FIBRE COMPANY, INC (Employer) Dated By (Representative) (Title) MYCALEX DIVISION 771 This is an official notice and must not be Any questions concerning this notice or comph- defaced by anyone ance with its provisions may be directed to the This notice must remain posted for 60 consecutive Board's Office, Federal Building, 16th Floor, 970 days from the date of posting and must not be Broad Street, Newark, New Jersey 07102, Telephone altered, defaced, or covered by any other material 201-645-2100