Janler Plastic Mold Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1971

191 N.L.R.B. 162 (N.L.R.B. 1971)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Janler Plastic Mold Corporation and Pattern, Mold
and Model Makers' Association of Chicago and
Vicinity, affiliated with the Pattern Makers' League
of North America , AFL-CIO. Case 13-CA-9933
June 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on June 26, 1970, and on an
amendment thereto filed on January 14, 1971, by Pat-
tern, Mold and Model Makers' Association of Chicago
and vicinity, affiliated with The Pattern Makers'
League of North America, ALF-CIO, herein called the
Union, and duly served on Janler Plastic Mold Corpo-
ration, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 13, issued a complaint on
February 3, 1971, and, on February 16, 1971, an
amendment thereto, 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
a Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 10, 1970,
following a Board election in Case 13-RC-12101 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about November 24, 1970, and at all times there-
after, 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
or about February 10, 1971, Respondent filed its an-
swer to the complaint admitting in part, and denying
in part, the allegations in the complaint, submitting an
affirmative defense, and requesting that the complaint
be dismissed in its entirety.
On March 19, 1971, counsel for the General Counsel
filed directly with the Board a Motion To Transfer
Proceedings to the Board and Motion for Summary
Judgment. Subsequently, on March 30, 1971, the
Official notice is taken of the record in the representation proceeding,
Case 13-RC-12101 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 Electrosystems, 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.
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a response
to Notice To Show Cause, called Answer to Notice To
Show Cause.
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 powers
in connection with 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 and in its Response to
the Notice To Show Cause, the Respondent contends
that the certification of the Union issued by the Board
in Case 13-RC-121012 is invalid and the Union, there-
fore, is not the exclusive majority bargaining represent-
ative of the employees in the appropriate unit.
The record in Case 13-RC-12101 reflects that, pur-
suant to a Stipulation for Certification Upon Consent
Election, an election by secret ballot was conducted on
April 3, 1970, among the employees in the stipulated
unit. The tally of ballots showed that of approximately
42 eligible voters, 41 cast ballots, of which 21 were for,
and 20 against, the Union. Thereafter, the Respondent
filed timely objections to conduct affecting the results
of the election. The objections alleged in substance that:
(1) The Union made material factual misrepresenta-
tions to eligible employees to which the Respondent did
not have sufficient time to reply; (2) the Union threat-
ened employees with dire consequences if they did not
support and vote for the Union; (3) there was union
surveillance and objectionable conduct near the polls
during the course of the election; (4) the Region refused
Respondent's timely request to provide an absentee
ballot for a hospitalized employee; (5) the union-con-
ducted "mock" election disturbed the laboratory con-
ditions for the April 3 election; and (6) the totality of
the Union's conduct created an atmosphere of fear,
confusion, and doubt among the employees which
affected the results of the election.
After an investigation the Regional Director issued
and caused to be served on the parties a detailed Report
on Objections on May 25, 1970, in which he recom-
mended that the Respondent's objections be overruled
in their entirety and that the Union be certified.
186 NLRB No. 80. On February 1, 1971, pursuant to a stipulation and
agreement executed by the parties on January 29, 1971, the Regional Direc-
tor amended the certification to reflect the correct name of the Union.
191 NLRB No. 24
JANLER PLASTIC MOLD CORPORATION 163
Thereafter, on June 18 , 1970, the Respondent filed
exceptions to the Regional Director 's report together
with a supporting brief. The Respondent specifically
excepted to the Regional Director 's recommendation
that its six objections be overruled in their entirety and
to the failure of the Regional Director to direct a hear-
ing on its objections . The Respondent requested that
the election be set aside on the basis of its objections,
or, alternatively , a hearing be held on its objections on
grounds that the supporting evidence raised substantial
and material factual issues that could only be resolved
at a hearing . After due consideration , the Board, on
November 10, 1970 , with Chairman Miller dissenting,
issued its Decision and Certification of Representative,
186 NLRB No. 80, finding no merit in the Respond-
ent's exceptions , overruling the objections in their en-
tirety, and certifying the Union.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 prop-
erly litigable in this unfair labor practice proceeding.
In its Response to the Notice To Show Cause, the
Respondent reiterates its earlier contentions and in ad-
dition contends that Section 10(b) of the Act explicitly
guarantees it a hearing in the instant unfair labor prac-
tice proceeding, thereby precluding the grant of the
Motion for Summary Judgment . The Respondent fur-
ther contends that the failure to grant a hearing in this
situation constitutes a denial of due process . We find no
merit in these contentions. Although Section 10(b) re-
quires "a Notice of Hearing " to be issued and provides
to the person complained of the right "to appear in
person or otherwise and give testimony ," it cannot logi-
cally mean that an evidentiary hearing must be held in
a case where there isno issue of fact . The Board has
held, with judicial approval, that evidentiary hearings
are not required in unfair labor practice cases where, as
here, there are no substantial and material issues of fact
to be determined ; and in such cases summary judgment
is appropriate.'
' See Pittsburgh Plate Glass Co v. N..L.R.B., 313 U S , 146, 162 (1941),
Rules and Regulations of the Board, Sees. 102 67 (1) and 102.69(c)
4 Crest Leather Manufacturing Corporation , 167 NLRB 1085, 1086, and
As we have found the Respondent's contentions to
be without merit, and as the Respondent has raised no
issues properly litigable in this proceeding , we shall,
accordingly , grant the Motion for Summary Judgment.
On the basis of the entire record , the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein , a corporation duly organized under and existing
by virtue of the laws of the State of Illinois.
At all times material herein , Respondent has main-
tained its principal office and plant facility at 5292
Northwest Highway, Chicago, Illinois, where it is, and
has been at all times material herein , engaged in the
manufacture of plastic molds.
During the past calendar year, a representative
period , the Respondent, in the course and conduct of
its business operations, had a gross volume of business
in excess of $500,000, and it sold and shipped goods
valued in excess of $50,000 directly from its Chicago,
Illinois, establishment to locations in States of the
United States other than the State of Illinois.
We find , on the basis of the foregoing , that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Pattern , Mold and Model Makers' Association of
Chicago and vicinity, affiliated with The Pattern Mak-
ers' League of North America, AFL-CIO, is a labor
organization 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 consti-
tute a unit appropriate for collective -bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All tool room employees , including all mold
makers , machine operators , mold repairmen, ap-
prentices , mold designers , mold polishers , mainte-
nance employees , and tool crib attendants em-
ployed at the Respondent 's plant located at 5292
Northwest Highway , Chicago, Illinois, but ex-
cluding all office clerical employees , professional
cases cited therein ; Lipman Motors, Inc, 187 NLRB No. 36.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, guards and supervisors as defined in
the Act.
2. The certification
On April 3 , 1970 , a majority of the employees of
Respondent in said unit , in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 13, designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent . The Union was certified as the collective-
bargaining representative of the employees in said unit
on November 10, 1970 , 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 November 18, 1970, and
at all times thereafter , the Union has requested the
Respondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit . Commencing on or
about November 24, 1970 , 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 representative for collective bar-
gaining of all employees in said unit.
Accordingly , we find that the Respondent has, since
November 24, 1970 , 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, Respondent 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
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached , embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate 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. Janler Plastic Mold Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Pattern, Mold and Model Makers' Association of
Chicago and vicinity , affiliated with the Pattern Mak-
ers' League of North America , AFL-CIO , is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All tool room employees , including all mold mak-
ers, machine operators, mold repairmen , apprentices,
mold designers , mold polishers , maintenance em-
ployees, and tool crib attendants employed at the Re-
spondent's plant located at 5292 Northwest Highway,
Chicago , Illinois , but excluding all office clerical em-
ployees , professional employees , guards and super-
visors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since November 10, 1970, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about November 24, 1970, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respond-
ent 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, Respondent
has interfered with , restrained , and coerced, and is in-
terfering with, restraining , and coercing , employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
JANLER PLASTIC MOLD CORPORATION
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that Respondent, Janler Plastic
Mold 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 terms and conditions
of employment with Pattern , Mold and Model Makers'
Association of Chicago and vicinity , affiliated with The
Pattern Makers' League of North America , AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All tool room employees , including all mold
makers, machine operators , mold repairmen, ap-
prentices , mold designers , mold polishers , mainte-
nance employees , and tool crib attendants em-
ployed at the Respondent's plant located at 5292
Northwest Highway , Chicago, Illinois, but ex-
cluding all office clerical employees, professional
employees , guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the rights guaran-
teed 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Chicago, Illinois, plant copies of the
attached notice marked "Appendix ."5 Copies of said
notice, on forms provided by the Regional Director for
Region 13 , after being duly signed by Respondent's
representative , shall be posted by Respondent immedi-
ately 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
165
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER, dissenting:
As I would have granted Respondent a hearing on
portions of Objection II, in the underlying representa-
tion case , I dissent from the majority's granting of Gen-
eral Counsel's Motion for Summary Judgment now.
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 Pattern,
Mold and Model Makers' Association of Chicago
and vicinity, affiliated with the Pattern Makers'
League of North America , AFL-CIO , as the ex-
clusive representative of the employees in the bar-
gaining 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 Sec-
tion 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 de-
scribed below , with respect to rates of pay , wages,
hours, and other terms and conditions of employ-
ment , and, if an understanding is reached , embody
such understanding in a signed agreement. The
bargaining unit is:
All tool room employees , including all mold
makers, machine operators , mold repairmen,
apprentices , mold designers , mold polishers,
maintenance employees, and tool crib attend-
ants employed at the Respondent's plant
located at 5292 Northwest Highway,
Chicago, Illinois, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
5 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 be changed JANLER PLASTIC
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED MOLD CORP.
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD." (Employer)
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By days from the date of posting and must not be altered,
(Representative) (Title) defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
This is an official notice and must not be defaced by Office, Everett McKinley Dirksen Building, 219 South
anyone. Dearborn Street, Chicago, Illinois 60604, Telephone
This notice must remain posted. for 60 consecutive 312-353-7572.