Burroughs Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1957

118 N.L.R.B. 1177 (N.L.R.B. 1957)

13URROUGHS CORPORATION 1177
the impact of labor disputes requires the Board to resume the -prior
policy to assert jurisdiction over this Employer and over all public
utilities subject to the rule of de minimis; and that our caseload does
not preclude our doing so.
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Order.
Burroughs Corporation and International Union of Operating
Engineers, Local 94-94A, AFL-CIO. Case No. 2-CA-6564.
August 27, 1957
DECISION AND ORDER
On May 8, 1957, Trial Examiner John H. Eadie, issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions and a
memorandum.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel 1 [Members Rodgers,
Bean, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
1 The Respondent 's request for oral argument before the Board is hereby denied as the
record and exceptions and memorandum adequately present the issues and positions of
the parties.
2 The Respondent contends that the Board erred in its unit findings in the earlier
representation proceeding ( Case No. 2-RC-8258 ) ; and that the Trial Examiner erred
in adopting those findings and in refusing to permit the Respondent to adduce further
evidence with respect to them. More specifically , the Respondent contends , inter alia,
that the Trial Examiner erred in denying its motion, made after the close of the instant
hearing, to reopen the record to permit it to adduce "additional evidence .. on the
question of the Extent of the Union 's Organization ." However, the unit issues , includ-
ing the Respondent 's contention that the Union's unit request was based on the extent
of its organization , were fully litigated and considered by the Board in the representation
proceeding. It is clear, therefore , that these issues are not properly the subject of re-
litigation in the instant complaint case. Esquire, Inc. (Coronet Industrial Films Divi-
sion), 109 NLRB 530 , enfd . 222 F. 2d 253 ( C. A. 7) ; Pittsburgh Plate Glass Co. V.
N. L. R. B ., 813 U . S. 146; N. L. it. B. v. West Kentucky Coal Co., 152 F. 2d 198
(C. A. 6), cert. denied 328 U . S. 866 ; Phillips Petroleum Co., 100 NLRB 684, 686-687,
enfd . 206 F. 2d 26, 30 (C. A. 5) ; N. L. it . B. v. Worcester Woolen Hills Corp ., 170 F. 2d
18, 16 ( C. A. 1), cert. denied 836 U. S. 903. Moreover, in the representation case, the
Board found that the service employees at the Hempstead branch constituted a cohesive
and permanent group of employees with common interests , and that the possibility that
the union , in the future, might seek to represent service employees in other branch
offices of the Respondent had no bearing. upon the determination of the appropriate unit
at the Hempstead branch . See The Berger Brothers Company, 116 NLRB 439 ; Morgan-
118 NLRB No. 161.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the exceptions and memorandum, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. The Respondent, Burroughs Corporation, 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 conditions of employment with International Union
of Operating Engineers, Local 94-94A, AFL-CIO, as the exclusive
representative of all service employees at its Hempstead, Long Island,
New York, branch including field and shop servicemen A and B,
the branch service instructor, and the janitor utility clerk, but exclud-
ing office clerical employees, guards, professional employees, and su-
pervisors as defined in the Act.
(b) Engaging in any like or related acts or conduct interfering.
with the efforts of International Union of Operating Engineers, Local
94-94A, AFL-CIO, to negotiate for or represent the employees in the
aforesaid appropriate unit as the exclusive bargaining agent.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the International Union
of Operating Engineers, Local 94-94A, AFL-CIO, as the exclusive
representative of all employees in the aforesaid appropriate unit, with
respect to rates of pay, wages, hours of employment, or other con-
ditiolls of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its Hempstead, Long Island, New York, branch, copies
of the notice attached hereto marked "Appendix A." 3 Copies of said
ton Full Fashioned Hosiery Company , 115 NLRB 1267, 1272 , enfd . 241 F. 2d 913
(C. A. 4).
The Respondent also contends, in effect, that the Board erred in the representation
proceeding in not formally ruling on its request that the Board "take judicial notice of
prior determinations (14 NLRB 829, 81 NLRB 1239: and 93 NLRB 98) and to incorporate
those proceedings" with the representation proceeding. We find no merit in this con-
tention. Although the Board did not specifically rule on the Employer's request, the
Board did in fact consider those earlier cases in deciding the representation issues upon
which this case is bottomed . Thus, in the representation case, the Board cited these
earlier representation cases to show that, for the past 18 years, the Board had con-
sistently found that units of service employees confined to individual branch offices of
the Respondent are appropriate for the purposes of collective bargaining. Moreover, it
is clear that in the representation proceeding the Respondent was afforded every oppor-
tunity to present all of the evidence which it considered necessary to the proper
determination of the unit issues.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
BURROUGHS CORPORATION 1179
notice, to be furnished by the Regional Director for the Second Region,
shall, after having been duly signed by an authorized representative of
the Respondent, be posted by the Respondent immediately upon the
receipt thereof, and maintained by it for a period of not less than
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that
such notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A,
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with International
Union of Operating Engineers, Local 94-94A, AFL-CIO, as the
exclusive representative of all our employees at our Hempstead,
Long Island, New York, branch in the bargaining unit described
below, or in any like or related manner interfere with the efforts
of the aforesaid Union to negotiate for or represent the employees
in said bargaining unit.
WE WILL, upon request, bargain collectively with International
Union of Operating Engineers, Local 94-94A, AFL-CIO, as the
exclusive representative of all of our employees in the bargaining
unit described below, with respect to rates of pay, wages, hours
of employment, or other conditions of employment, and, if an
understanding is reached, we will embody it in a signed agreement.
The bargaining unit is:
All service employees employed at our Hempstead, Long
Island, New York, branch including field and shop service-
men A and B, the branch service instructor, and the janitor
utility clerk, but excluding office clerical employees, guards,
professional employees, and supervisors as defined in the Act.
BURROUGHS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by International Union of Operating Engineers, Local
94-94A, AFL-CIO, herein called the Union, the General Counsel of the National
Labor Relations Board, by the Acting Regional Director for the Second Region
(New York, New York), issued a complaint dated March 18, 1957, against Bur-
roughs Corporation, herein called the Respondent, alleging that the Respondent
had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
(5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
herein called the Act.
On about March 25, 1957, the Respondent filed an answer, in which it admitted
the jurisdictional allegations of the complaint, but denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
at New York, New York, on April 2, 1957. At the conclusion of the hearing, the
General Counsel moved to conform the pleadings to the proof, as to names, dates, and
other minor variances . The motion was granted without objection. The General
Counsel and the Respondent argued orally on the record. None of the parties filed
a brief with the Trial Examiner.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation. It maintains its home office and has
manufacturing plants in the State of Michigan. It has other manufacturing plants
located throughout the United States. The Respondent operates branch offices in
21 foreign countries and in various States. of the United States, including a branch
office in West Hempstead, Long Island, New York, herein called the Hempstead
branch. The branch offices,are engaged primarily in the service of the Respondent's
equipment. This proceeding is concerned only with the Hempstead branch.
During the calendar year 1956, the Respondent's gross sales amounted to in excess
of $218,000,000.
The complaint alleges, the answer admits, and the Trial Examiner finds that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 94-94A, AFL-CIO, is a
labor organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
By a Decision and Direction of Election, dated November 15, 1956, in Case
No. 2-RC-8258, the Board directed an election among the Respondent's employees,
with the bargaining unit specified as, "All service employees at the Employer's
Hempstead, Long Island, New York, branch including field and shop servicemen
A -and B, the branch service instructor, and the janitor utility clerk, but excluding
office clerical employees, guards, professional employees, and supervisors as defined
in the Act." On or about December 12, 1956, a majority of the Respondent's
employees in the unit described above, by a secret election conducted under the
supervision of the Regional Director for the Second Region, designated or selected
the Union as their representative for the purposes of collective bargaining with
the Respondent. On about December 20, 1956, said Regional Director certified
the Union as the exclusive collective-bargaining representative of all employees
in the said unit.
By letter dated January 3, 1957, the Union requested the Respondent for a meeting
in order to engage in collective bargaining. The complaint alleges and the answer
admits that on or about January 25, 1957, and at all times thereafter, the Respondent
refused to bargain collectively with the Union. The answer states that the
Respondent's reasons "among others" for its refusal to bargain were: "That the
Board's action was Arbitrary and Capricious. That the finding of the Board was
against the preponderance of Evidence. That the Board in reality based its finding
upon the extent of the Union's organization which is contrary to Law."
The Respondent's contentions are rejected; and it is found that its refusal on and
after about January 25, 1957, to bargain collectively with the Union was violative
of Section 8 (aj (5) of the Act.
SEBASTOPOL APPLE GROWERS UNION 1181
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in
connection with its business operations described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers , Local 94-94A, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. All service employees at the Respondent 's Hempstead branch , including field
and shop servicemen A and B, the branch service instructor , and the janitor utility
clerk, but excluding office clerical employees , guards, professional employees, and
all supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
3. The Union was on December 12, 1956, and at all times thereafter has been,
and now is , the exclusive representative of all employees in the aforesaid unit
for the purposes of collective bargaining , within the meaning of Section 9 (a) of
the Act.
4. By refusing on and after January 25, 1957, to bargain collectively with the
Union, as the exclusive representative of its employees in the aforesaid unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain collectively, the Respondent interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Sebastopol Apple Growers Union and General Truck Drivers,
Warehousemen and Helpers Union, Local No. 980, AFL-CIO
Sebastopol Apple Growers Union and General Truck Drivers,
Warehousemen and Helpers Union, Local No. 980, AFL-CIO,
Petitioner . Cases Nos. 20-GA-1035 and 20-RC-2637. August 27,
1957
DECISION AND ORDER
On March 7, 1956, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above -entitled proceedings , finding that
the 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 copy of the In-
termediate Report attached hereto. The Intermediate report also
embodied the Trial Examiner's findings with respect to the rep-
resentation case. Thereafter , the Respondent filed exceptions and a
supporting brief.
118 _NLRB -No. 162.