Cory Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1955

111 N.L.R.B. 158 (N.L.R.B. 1955)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no bargaining history for any of the Employer's operations and no
labor organization is seeking a larger unit.
On the basis of the foregoing, especially the apparent autonomy of
the operations together with the fact that the operation is entirely in-
trastate, whereas the other operations of the Employer are interstate,
and the further fact that there is no bargaining history or a request by
any other labor organization for a broader unit, we conclude that a
separate unit for the employees of the shuttle service is appropriate.2
"Upon the entire record in this case, we find that the following em-
ployees of the Employer at its Waynesville, Missouri, plant consti-
tute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9 (b) of the Act :
All busdrivers, mechanics, and washboys, but excluding office cleri-
cal employees, all other employees, and supervisors as defined in the
Act.
[Text of Direction of Election omitted from publication.]
8 See Central Wisconsin Motor Transport Company, 85 NLRB 287, at 288; Associated
Transport, Inc., 93 NLRB 1564, at 1565.
In its brief the Employer asserts that subsequent to the hearing , the shuttle service
was sold. The record contains no facts regarding this alleged transfer , and the investi-
gation by the Regional Director reveals that the formal registration requirements for
such sales of the Missouri Public Service Commission and the Interstate Commerce Com-
mission have not been met . On the basis of the foregoing , we see no impediment at this
time to directing an election.
FRESH'ND-AIRE COMPANY, DIvISION OF CORY CORPORATION, A CORPORA-
TION and DISTRICT No. 140, INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, A. F. L. Case No. 13-CA-1735. January 7,1955
Decision and Order
On September 15, 1954, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled 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 affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and a supporting brief. The
Respondent's request for oral argument is denied as the record and
the exceptions and the brief, in our opinion, adequately present the
issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
111 NLRB No. 14.
FRESH'ND-AIRE COMPANY 159
mediate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
On April 14, 1954, the Board certified the Union as the collective-
bargaining representative of the Respondent's employees.' The Union
thereafter requested the Respondent to bargain with it, but the Re-
spondent on May 5, 1954, admittedly refused to bargain with the
Union. The Respondent contends, however, that its admitted refusal
to bargain was not an unfair labor practice, on the ground that the
certification of the Union was illegal. The Respondent's position that
the certification of the Union was illegal is based on the contention
that the Board's procedures and actions in the representation case were
improper. That contention, and the arguments in support thereof,
were fully considered in the representation proceeding, and were re-
jected at that time. For the reasons there stated, we reject that con-
tention here. We find, therefore, that the certification of the Union
was valid, and, accordingly, that the Respondent's admitted refusal
to bargain with the Union was violative of Section 8 (a) (5) and
Section 8 (a) (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices , we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent has refused to bargain col-
lectively with the Union , as the exclusive representative of its em-
ployees in an appropriate unit. We shall therefore order that the
Respondent cease and desist from engaging in such, or any like or re-
lated, conduct ; and, upon request, bargain collectively with the Union
as the representative of such employees , with respect to their rates
of pay, wages, hours of employment , or other conditions of employ-
ment, and, if an agreement is reached , embody its terms in a signed
agreement.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Fresh'nd-Aire Company,
Division of Cory Corporation, Grays Lake, Illinois, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the ex-
clusive representative of all its employees in the appropriate unit with
1 Case No 13-RC-3190.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities, or to refrain from such ac-
tivities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the exclu-
sive representative of the employees in the appropriate unit, and em-
body in a signed agreement any understanding reached.
(b) Post at its plant in Grays Lake, Illinois, copies of the notice at-
tached hereto and marked "Appendix A." 2 Copies of said notice, to
be furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are custom-
arily 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 the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
have been taken to comply herewith.
2 In 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."
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, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with District No. 140,
International Association of Machinists, A. F. L., as the exclusive
representative of all employees in the bargaining unit described
herein with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
FRESH'ND-AIRE COMPANY 161
organization, to form labor organizations, to join or assist District
No. 140, International Association of Machinists, A. F. L., or any
other labor organization, to bargain collectively through represent-
atives of their choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain upon request with District No. 140, Interna-
tional Association of Machinists, A. F. L., as the exclusive rep-
resentative of all employees in the bargaining unit described here-
in with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and embody in a signed agree-
ment any understanding reached. The bargaining unit is :
All of the Company's production and maintenance employees
at its Grays Lake, Illinois, plant, including shipping, receiv-
ing, and stockroom employees, but excluding office clerical
and plant clerical employees, professional employees, guards,
and supervisors as defined in the Act.
FRESH'ND-AIRS COMPANY, DIVISION OF
CORY 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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE AND FINDINGS
Admitting its refusal to bargain, the Company here would test the Board's procedure
and its certification of the Union as the exclusive collective-bargaining representative
of all of the employees in the unit. Admitted are the unit, described infra, the certifi-
cation, and the refusal to bargain; the legality of the certification is denied.
A hearing was held before me at Chicago, Illinois, on July 21, 1954. The Gen-
eral Counsel's motion to correct the record, dated August 9, 1954, and consented to
by the Company and the Union, is hereby granted; the motion papers and pages
6, 6-A, 6-B, and 6-C of the record as corrected are hereby marked Trial Examiner's
Exhibit No. 1.
It was admitted and I find that the Company, a Delaware corporation with prin-
cipal office in Chicago, Illinois, manufactures electric air-conditioning units, fans,
and heaters, and maintains a plant at Grays Lake, Illinois; that it has purchased
materials , parts, and supplies having an annual total cost of approximately $1,000,-
000, of which approximately 75 percent was shipped from points outside the State to
said plant; that it has sold its finished products valued at more than $1,500,000
annually, of which approximately 65 percent was shipped from said plant to points
outside the State; and that the Company has engaged in commerce within the mean-
ing of the Act.
It was also admitted and I find that the Union is a labor organization within the
meaning of the Act.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 8, 1953, in Case No. 13-RC-3190, the Board conducted a representation
election in the unit involved herein. On August 10, 1953, the Board overruled the
Regional Director and sustained the Company's objections to the conduct of the said
election; the Board at that time also directed that a second election be held within
30 days. Although in letters to the Regional Director on August 24 and 26 the Com-
pany summarized its objections to the holding and conduct of the second election,
one of its points being that the effect of the conduct which had led the Board to
direct a second election could not so quickly be dissipated, such election was held on
September 3, 1953. After various further proceedings the Board on April 14, 1954,
certified the Union as collective-bargaining representative. The Union thereafter
requested that the Company bargain with it but the Company on May 5, as admitted,
refused so to bargain. (The letter of refusal is dated May 4.)
The General Counsel argues that aside from the fact that it is the Board's prerog-
ative to determine the adequacy and fairness of conditions surrounding an election,
the established procedure requires the filing of objections within 5 days after an
election, and the Company did not follow that procedure. (With the single excep-
tion, supra, reference throughout is to the second election.) The Company counters
that the Board should have acted on its own knowledge of defect or impropriety which
would prevent a fair election, and that the second election and the prior proceedings
were conducted arbitrarily and illegally.
Aside from the issue of constitutionality,' which is based on the other defenses
raised, the Company's position was presented to the Board in the representation pro-
ceeding. Before me, an offer of proof was made encompassing the matters so pre-
sented and outlined, supra. The Company's defense is based on the Board's pro-
cedures.2 At the instant hearing no matters were offered for consideration which
were not or could not have been presented to the Board. As I stated at the hearing,
I will not presume to review the Board's actions. (It is therefore unnecessary to
repeat and detail here the Company's objections to the election.) Accepting the
certification, and the refusal being admitted, I find that at all times since May 5,
1954, the Company has in violation of the Act refused to bargain with the Union
as the exclusive collective-bargaining representative of the employees in the unit.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. District No. 140, International Association of Machinists, A. F. L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All of the Company's production and maintenance employees at its Grays Lake,
Illinois, plant, including shipping, receiving, and stockroom employees, but exclud-
ing office clerical and plant clerical employees, professional employees, guards, and
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. District No. 140, International Association of Machinists, A. F. L., was, on
April 14, 1954, and at all times since has been the exclusive bargaining representa-
tive within the meaning of Section 9 (a) of the Act, of all employees in the afore-
said unit for the purposes of collective bargaining
4. By refusing to bargain collectively with District No. 140, International Asso-
ciation of Machinists, A. F. L., as the exclusive representative of the employees in
the appropriate unit, Fresh'nd-Aire Company, Division of Cory Corporation, has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By such refusal to bargain, thereby interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the Com-
pany has 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 com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
i The Company included this defense in its amended answer, which was filed after the
hearing by permission and which is hereby included in the record as Respondent's Ex-
hibit No. 4.
2 Cf Poinsett Lumber and Manufacturing Company, 109 NLRB 1079.