Van Dorn Plastic Machinery Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Dorn Plastic Machinery Co., Division of Van Dorn Company and District Lodge 54 of the In- ternational Association of Machinists and Aero- space Workers, AFL-CIO and Thomas W. Vale. Case 8-CA-11669, 8-CA-11842, 8-CA- 12243, and 8-CA-12205 November 12, 1980 ORDER REMANDING PROCEEDING TO THE ADMINISTRATIVE LAW JUDGE BY CHAIRMAN FANNING AND Ml:MBIRS JENKINS AND PENILI.O On March 31, 1980, Administrative Law Judge Robert G. Romano issued his Decision in this pro- ceeding. Thereafter, the General Counsel, the Charging Party, and Respondent filed exceptions and supporting briefs, and Respondent filed a brief in opposition to the General Counsel's exceptions. For the reasons explained below, the Board has de- cided to remand this proceeding to the Administra- tive Law Judge for a further hearing and for a sup- plemental decision. The amended consolidated complaint in this pro- ceeding alleged, inter alia, that since February 22, 1978, Respondent had refused to meet and bargain with the Union as the certified bargaining repre- sentative of certain of Respondent's employees in an appropriate unit and that this refusal to meet and bargain violated Section 8(a)(5) and (1) of the Act. However, since he found that the Union was not entitled to certification based upon the related representation proceeding, the Administrative Law Judge concluded that Respondent's refusal to bargain was not a violation of Section 8(a)(5) and (1) of the Act. In reaching this conclusion, the Administrative Law Judge noted the following facts from the rep- resentation proceeding in Case 8-RC-10830. In its Objection 8, Respondent alleged that, on the day of the election, which the Union won, the Union had distributed a flyer . . containing what purported to be a copy of one of the Union's contracts, containing provisions for wage rates for various job clas- sifications, pension and premium pay.... In fact, such "contract" was a forgery in that there are no fixed wage rates contained in the actual contract, and there are no provisions for set-up, leadman, or instructional premiums. The Regional Director applied the then-prevailing law of Shopping Kart Food Markei, Inc.,2 and found that, because the flyer did not involve a forgery or Case 8 RC 10183 228 NLRH 1311 (1977) 253 NLRB No. 29 an improper involvement of the Board and its processes, it was not objectionable. On January 17, 1978, following exceptions by Respondent, the Board (by a panel of Chairman Fanning, Member Jenkins, and then Member Walther) adopted the Regional Director's recommendations, which re- sulted in a certification being issued to the Union." Thereafter, Respondent refused to bargain with the Union as the certified bargaining representative of certain of its employees. This refusal along with other of Respondent's actions was alleged to be an unfair labor practice in the amended consolidated complaint in this proceeding. A hearing on this complaint was held on dates in October and De- cember 1978. At the hearing in the instant proceed- ing, Respondent attempted to relitigate the issue of the leaflet, but, upon objection, the Administrative Law Judge ruled that Respondent was precluded from raising in this unfair labor practice proceeding issues which were raised and disposed of in the representation proceeding in Case 8-RC-10830. Accordingly, no additional evidence involving the leaflet was introduced. Thereafter, on the last day of the hearing and without the parties' knowledge, the Board issued its Decision in General Knit of California. Inc.,4 overruling Shopping Kart, and returning to the standard of review for alleged misrepresentations set out in Hollywood Ceramics Company, Inc. That standard indicated, inter alia, that a misrepresenta- tion which may reasonably be expected to have a significant impact on the election will cause it to be set aside. The Administrative Law Judge analyzed what effect the Board's reversal of Shopping Kart, supra, in General Knit. supra, had on the unfair labor practices alleged in this proceeding. He de- termined, and we agree, that General Knit is con- trolling. The Administrative Law Judge then analyzed Objection 8 under the criteria of General Knit, supra, but he did so based only on the formal papers submitted in the representation proceeding. As set out in his Decision, these papers include the formal objection itself, with exhibits attached; the :' With regard Io the campaign flyer Chairmna Fanning and Nlcmhcr Jenkins slated t fr 2 f the January 1 7 )ecision C(lairilll i:anllilng and Mribecr Jenkin aree ' ith the Regional i- rcclir Ihat hll \' vie d im light of Ihe Board's recent dci in ill .Shopprin Kurt i-,odi t1rAert Inc.. 228 NI.-Ri 1311 (1977), the alleged tlilsrepresentatiIn% do ilot warranl t etting aside the clectiltn Al- though £Chairman Fanninig and Memnber Jenkins dissented i Shopping Kurt, lprt, alld cntnu t suhscribe tio the views stated in their dl - critli i opinion, the) IlSc, rthielcs rcng[i/e thal the majorily opill- iln in Itihal cas represents currenlt Bard poli i and will· tlherefcorc apply that policy ill this protceeding 21) NI RI1 hM (1 9 78) Menbehcrs I'enellil and Murph di.ssenting sep- anrtel) 14(0 NI.R 221 (4621 26 VAN DO()RN PIASIIC MACHINE'RY C.() Regional Director's comments in his report on the objection; Respondent's exceptions to the Regional Director's report; and the Board's Decision adopt- ing the report. 6 From this material, the Administra- tive Law' Judge concluded that there were material misrepresentations in the flyer, involving wage rates, which warranted the setting aside of the elec- tion under General Knit. He accordingly dismissed the allegation of the complaint alleging an 8(a)(5) violation. Both the General Counsel and the Charging Party have excepted to this portion of the Adminis- trative Law Judge's Decision and they urge that the issue be remanded for a full hearing.7 They argue that the Administrative Law Judge was in error in relying solely on the papers in the repre- sentation proceeding in analyzing the objection. They note that, notwithstanding the Regional Di- rector's comments on the alleged misrepresenta- tions in the flyer, he resolved the case based on the application of Shopping Kart. 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 au- thority in this proceeding to a three-member panel. The Board, having duly considered the matter, is of the opinion that there exist material issues of fact and law concerning Objection 8 which warrant a remand of this proceeding to the Administrative Law Judge for the purposes of conducting a fur- ther hearing on that objection under General Knit. supra. The Board is not satisfied that the represen- tation proceeding in Case 8-RC-10830, which was conducted entirely under the standard set out in the now-overruled Shopping Kart Decision, was sufficient to resolve the objection." Accordingly, it is hereby ordered that this pro- ceeding be remanded to Administrative Law Judge Robert G. Romano for the purpose of conducting a further hearing with regard to Respondent's Objec- tion 8 in Case 8-RC-10830 in light of the Board's Decision in General Knit of California, Inc., 239 NLRB 619. At the hearing, all parties shall be al- lowed to adduce whatever evidence they deem pertinent on that objection. + There as nI heartig n any of the objections in the representationl proceeding ' As ;mn alternalise argumenlt, the Union claints ino hearing is ncessar lo find n its f'aor ' Il this regard, the Board does not find it significant that the lUnio did not except to certain (of the Regional Director's commenlts As the then-prcsailing lau of Shtoppiyg Kurt did not call fr such colmmenlt. the Regional Director's observlations there were in the nature (if dicta And, given the las unlder Shopping Karr. the Board finds the t-il vil a, llo t duty hound to respond to there conlmenrnts hich ere nolt in ctnCial clement of the Reg ionl; Directir's report It is further ordered that, upon the conclusion of the hearing, the Administrative Law Judge shall prepare and serve on the parties a Supplemental Decision containing findings of fact, conclusions of law, and recommendations based on the evidence received at the reopened hearing and that, follow- ing service of such Supplemental Decision on the parties, the provisions of Section 102.46 of the Na- tional Labor Relations Board Rules and Regula- tions, Series 8, as amended, shall be applicable "' MlIMN1tR PIeNII 10, dissenting: Once again, the General Knit n majority upsets a certification validly issued under Shopping Kart. Once again, the employees' desires as expressed at the ballot box are frustrated. Once again, I must dissent. The facts tell the all too familiar story of delay, delay, delay. On April 22, 1977, the employees voted for union representation in a secret-ballot election. From that time to the present day, the parties have been locked in litigation over the status of the bargaining agent and related issues, and the employees have been deprived of the serv- ices of their duly elected representative. My col- leagues' decision serves only to exacerbate the problem by remanding this seemingly endless pro- ceeding for yet further litigation concerning Re- spondent's misrepresentation objection that was properly overruled under Shopping Kart when the Board certified the Union almost 3 years ago. I find this result intolerable. Even should the Union eventually prevail, the eroding effects of time and employee turnover would render the certification virtually worthless in terms of effective collective bargaining. I would direct Respondent to the bargaining table now. T he Board I aa:re that, in addition to the general refusal to meet and hargalni ilegation of he conlplaiti, Respondent is alleged to hase iol;aled Sec (a)(51 anid () of the Act in arious other respectl he B lard is a; i, aare that Ihe A dilrnitrattle .as Judge recommendlcd disrissal of these allegations baed ot hi, findilg no general dut 5 to bar- gai on Respolndent't part liov eer. the Board is further cognizant that Ihe Administrative la. Judge imade certain altcrnati re findings on lthet 8(a)(5) allegations: leC. assiUeilie a ahld certification (of the nion, the AdnlinistralieC I:au Judge hcn pissed on ;lch (a)(5) iolitionlrl dl-ged ltie found certain illaln, ailt] di mls ,ed others rhe prtles h ex cepted to Ihohrse finding, which are ad cere to them as suxell as to certain fitingr s on 80(;)(1) allegatins IFhe Bitard rcsere ruling it irl thece ad- dtlinal allegatins, mait iof which lma hbe dependent n the alidl or lack thereof of the certficalion i11 (ase 8 RC- -108I( When the Adnmirs- Irat ll Iass Judge has ruled i hi, Supplemental )ecsiiil on the i sue recnlllded, his recoimilded ()rder Aill reflect that Supplemental Dci:- stin aind the Board xill then paiss tll an exceptions raised to that iSup piemnial; I)DcisAon (Znc ailr krit! ( o l-/,rtticu /tt , 21 NIRB 61 (l I97t81 A I tad nmt (iner Ai dissent. I dherc io tie sound principles of Shppti AorI 1,d itariet. Itn 228 Ni RH 1311 (197i 2th¢