Baumritter Corp.

National Labor Relations Board - Board Decisions

May 3, 1967

164 N.L.R.B. 297 (N.L.R.B. 1967)

BAUMRITTER CORP.
Baumritter Corporation ; Kling Factories, Inc.
and District Lodge No. 65, International
Association of Machinists & Aerospace
Workers, AFL-CIO. Case 3-CA-3082.
May 3,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On January 13, 1967, Trial Examiner Charles W.
Schneider issued his Decision in the above
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions 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 supporting brief, 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
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , $aumritter
Corporation; Kling Factories, Inc., New York, New
York, its officers, agents , successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding
CHARLES W. SCHNEIDER,Trial Examiner: Upon petition
for certification as collective-bargaining representative
filed on March 16, 1966, by District Lodge No. 65,
International Association of Machinists & Aerospace
Workers, AFL-CIO, herein called the Union, the Regional
Director for Region 3 of the National Labor Relations
Board on March 30, 1966, approved a stipulation for
certification upon consent election, executed by the
Respondents, Baumritter Corporation, Kling Factories,
Inc., and the Union on March 28, 1966. The appropriate
bargaining unit was stipulated to be the unit set out
hereinafter.'
I Official notice is taken of the representation proceeding,
Baumritter Corporation, Kling Factories , Inc., Case 3-RC-3888
297
On April 15, 1966, an election by secret ballot was
conducted in the appropriate unit under the supervision of
said Regional Director in which election the Union
received a majority of the valid ballots cast. Thereafter,
the Respondents filed timely objections to the election
based on asserted conduct by the Union affecting the
results of the election, and also based on the asserted
actions of a Board agent which allegedly interfered with
rights guaranteed by the National Labor Relations Act, as
amended, and, the employee's rights under the First
Amendment to the Constitution of the United States. It
does not appear that the Respondent at that time
requested a formal hearing on its objections. On May 31,
1966, the Regional Director, after investigation, issued a
report on objections. In this report, the Regional Director
recommended that the objections be overruled and that a
certification of representative issue. On June 20, 1966, the
Respondent filed with the Board timely exceptions to the
Regional Director's report, in which the Respondent
contested the correctness of the Regional Director's
factual and other findings, and requested a formal hearing
on its objections. On September 11, 1966, the Board
issued its Decision and Certification of Representative in
which it found that the Respondent's exceptions raised
"no material issues of fact or law warranting reversal of
the Regional Director's recommendations." Accordingly,
the Board adopted the Regional Director's report and
certified the Union as the bargaining representative under
Section 9(a) of the Act.
The Complaint Case
On October 17, 1966, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged that since the certification the Respondent had
refused to bargain with the Union.
On November 8, 1966, the General Counsel, by the
Acting Regional Director, issued a complaint alleging that
the Respondent had committed unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act by refusing to
bargain with the Union upon request. In due course, the
Respondent filed its answer to the complaint in which
certain allegations of the complaint were admitted and
others were denied.
In its answer, the Respondent admitted most of the
allegations contained in the complaint but denied that the
Union was the exclusive bargaining representative of the
employees and further denied the commission of any
unfair labor practices. The answer admitted: (1) the
jurisdictional allegations of the complaint, (2) the Union is
a labor organization within the meaning of the Act, (3) the
unit is appropriate, (4) the election was held, and
(5) commencing on or about September 26, 1966, the
Union has requested the Respondent to bargain and
commencing on or about October 4, 1966, the Respondent
has refused the request.
On November 23, 1966, counsel for the General Counsel
filed a motion for summary judgment and issuance of Trial
Examiner's Decision accompanied by an argument in
support thereof, contending that the admissions contained
in the answer, in the light of the representation
proceedings, established the allegations of the complaint,
and that therefore there was no necessity for a hearing.
On November 30, 1966, Trial Examiner Charles W.
Schneider issued an order to show cause on the motion for
164 NLRB No. 56
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
summary judgment and indefinitely postponed the
scheduled hearing. The parties were directed to show
cause on or before December 16, 1966, as to whether the
motion for judgment on the pleadings should be granted.
On December 16, 1966, counsel for the Respondents filed
a memorandum in opposition to General Counsel's motion
for summary judgment. The entire record herein has been
considered by me.
Ruling on the Motion for Summary Judgment
The Respondent opposes the General Counsel's motion
for summary judgment, contending that it is entitled to a
hearing on its challenge to the conduct of the election in
order that it might have an opportunity to present evidence
concerning the subject matter of the objections. However,
it is clear that the issues of fact as to which the
Respondents urge a hearing have already been litigated in
the prior representation case. As to these matters it is
established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
relitigate issues which were or could have been litigated in
a prior related representation proceeding.2
This policy is applicable even though a formal hearing
on objections to an election has not been provided by the
Board. In the instant case the Respondents' request for a
hearing on their objections was originally made to the
Board in the Respondents' exceptions to the Regional
Director's report, and was necessarily decided adversely
to the Respondents by the Board's Decision and
Certification of Representatives. The Respondents do not
contend that the evidence which they would offer at a
hearing was previously unavailable or is newly discovered.
In such a circumstance the findings of the Board
constitute, at this stage of the proceedings, the law of the
case and are binding on the Trial Examiner. The factual
allegations of the complaint, if proved, establish the unfair
labor practices asserted. The Respondents have admitted
all essential allegations of the complaint except the result
of the election and the Union's certified representative
status. Of these I take official notice. The allegations of
the complaint are therefore deemed to be true. The record
thus establishes the following facts.
An election was held at the Respondents' plants in the
appropriate bargaining unit; the Union received a majority
of the valid ballots cast; objections filed by the
Respondents were found to be without merit and the
Union accordingly certified by the Board as the collective-
bargaining representative; and upon request of the Union
to bargain, the Respondents refused. As there is no newly
discovered or previously unavailable evidence bearing on
the representation proceeding there are no issues litigable
before me. All material issues having been decided by the
Board, there are no matters requiring an evidential
hearing. Accordingly, the General Counsel's motion for
summary judgment is in order and is granted .3 I hereby
make the following further findings:
1. THE BUSINESS OF THE RESPONDENTS
(a) Respondents are, and have been at all times
material herein, corporations duly organized under, and
existing by virtue of, the laws of the State of New York.
2 Pittsburgh Plate Glass Company v N.L.R.B 313 U S 146,
162, Producers, Inc , 133 NLRB 701,704
' The Puritan Sportswear Corp , 162 NLRB 13, Brush-Moore
(b) At all times material herein Kling Factories, Inc.,
herein called Respondent Kling, has been an entirely
owned subsidiary of Baumritter Corporation, herein called
Respondent Baumritter, with common officers,
ownership, directors, and operators, and they constitute a
single-integrated business enterprise; the said directors
and operators formulate and administer a common labor
policy for the aforementioned Companies affecting the
employees of said Companies.
(c) Respondents, whose principal office is located in
New York, New York, own and operate three plants,
herein called the plants, located in Mayville, Falconer, and
Frewsburg, New York, and are engaged at said locations in
the manufacture and sale of wooden furniture products.
The said plants of Respondents are its only facilities
involved in this proceeding.
(d) During the past year Respondents, in the course and
conduct of their business operations, manufactured, sold,
and distributed at the plants furniture products valued at
in excess of $50,000, of which products valued in excess of
$50,000 were shipped from the plants directly to States
other than the State of New York. Respondents are now
and have been at all times material herein, each
individually and all collectively, 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.
III. THE UNFAIR LABOR PRACTICES
All production and maintenance employees employed at
the Respondents' factories located in Mayville, New York,
Falconer, New York, and Frewsburg, New York, excluding
office clerical employees, professional employees , guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
On or about April 15, 1966, a majority of the employees
of Respondents in the appropriate unit , by secret ballot,
designated and selected the Union as their exclusive
collective-bargaining representative pursuant to Section
9(a) of the Act, and on September 21, 1966, the Board
certified the Union as such representative.
Commencing on or about September 26, 1966, and
continuing to date, the Union has requested, and is
requesting, Respondents to bargain collectively with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment as the exclusive
collective-bargaining representative of all employees in
the appropriate unit.
On or about October 4, 1966, Respondents refused, and
continue to refuse, to recognize and bargain with the
Union as such representative.
By thus refusing to recognize and bargain with the
Union, the Respondents have refused to bargain
collectively in violation of Section 8(a)(5) of the Act and
have interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act. The
Newspaper, Inc d/b/a The Portsmouth Times, 161 NLRB 1620,
Frito-Lay, Inc , 161 NLRB 950.
BAUMRITTER CORP. 299
aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in the case , and pursuant to Section
10(c) of the Act, I recommend that the Board issue the
following:
ORDER
Baumritter Corporation; Kling Factories, Inc., New
York, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with District Lodge
No. 65, International Association of Machinists &
Aerospace Workers, AFL-CIO, as the exclusive
collective-bargaining representative in the following
appropriate bargaining unit: all production and
maintenance employees employed at the Respondents'
factories located in Mayville, New York, Falconer, New
York, and Frewsburg, New York, excluding 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 the employees in said appropriate 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 District
Lodge No. 65, International Association of Machinists &
Aerospace Workers, 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 conditions of employment, and embody in
a signed agreement any understanding reached.
(b) Post at its Mayville, Falconer, and Frewsburg, New
York, plants, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms provided by
the Regional Director for Region 3, shall be posted by the
Respondents after being duly signed by an authorized
representative, immediately upon receipt thereof, and be
maintained by it for 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 3, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 5
4 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 Appeals Enforcing an Order" shall
be substituted for the words " a Decision and Order "
S In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 3, 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 National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
District Lodge No. 65, International Association of
Machinists & Aerospace Workers, AFL-CIO, as the
exclusive bargaining representative of all the
following employees:
All production and maintenance employees
employed at our factories located in Mayville,
New York, Falconer, New York, and Frewsburg,
New York, excluding office clerical employees,
professional employees, guards, and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of their rights under the Act.
WE WILL bargain collectively with the Union as the
exclusive representative of the employees and, if an
understanding is reached , sign a contract with the
Union.
BAUMRITTER CORPORATION;
KLING FACTORIES, INC.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Fourth Floor,
The 120 Building, 120 Delaware Avenue, Buffalo, New
York 14202, Telephone 842-3100.