Kerr Glass Mfg. Corp.

National Labor Relations Board - Board Decisions

Dec 11, 1967

168 N.L.R.B. 802 (N.L.R.B. 1967)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas A. Nelson d/b/a Trio Metal Cap Division,
Kerr Glass Mfg. Corp . and International Molders
and Allied Workers Union, Local 233 , AFL-CIO.
Case 13-CA-7960
December 11, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
Upon a charge filed by International Molders and
Allied Workers Union, Local 233, AFL-CIO,
herein called the Union, the General Counsel for
the National Labor Rlations Board, by the Regional
Director for Region 13, issued a complaint dated
August 4, 1967, against Thomas A. Nelson, d/b/a
Trio Metal Cap Division, Kerr Glass Mfg. Corp.,
herein called Respondent, alleging that the Respond-
ent did engage in and is engaging in unfair labor
practices 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
and of the complaint and notice of hearing were
duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on June 17,
1966, a majority of the Respondent's employees in
a unit stipulated by the parties as appropriate, and
subsequently so found by the Board,' in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 13 of the National
Labor Relations Board designated and selected the
Union as their representative for the purpose of col-
lective bargaining, and on May 15, 1967, the Union
was certified. The complaint further alleges that since
on or about May 15, 1967, and particularly on or
about May 15, 25, and June 5, 1967, the Respond-
ent has failed or refused to recognize and bargain
with the Union as the exclusive bargaining agent of
its employees, although the Union has requested
and is requesting him to do so. On August 16, 1967,
the Respondent filed his answer, admitting in part,
and denying in part, the allegations of the com-
plaint, presenting an affirmative defense, and
requesting that the complaint be dismissed.
On September 6, 1967, the General Counsel filed
with the Board a Motion to Transfer Proceedings
and a Motion for Summary Judgment, alleging that
no genuine issue of fact pertinent to the alleged
violation of Section 8(a)(5) of the Act exists.
Thereafter, on September 8, 1967, the Board issued
an Order Transferring Proceedings to the Board
and Notice to Show Cause. On October 2, 1967,
Decision and Certification of Representative issued May 15, 1967, in
Case 13-RC-10828 (not published in NLRB volumes).
2 Amalgamated Industrial Union, Local No. 44, also participated in the
March 29, 1966, election, but failed to receive any votes. Its withdrawal
was approved by the Regional Director on June 7, 1966
the Respondent filed a Motion to Revoke Certifica-
tion, and an Answer to the Notice to Show Cause,
requesting the Board to deny the Motion for Sum-
mary Judgment, revoke the Union's certification,
dismiss the complaint, and direct that a new elec-
tion be held. On the same day the Union filed a
Memorandum in Opposition to Employee's Motion
to Revoke Certification. On October 6, 1967, the
Respondent filed a Motion to Strike the Memoran-
dum in Opposition to Employer's Motion to
Revoke Certification.
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 case to a three-
member panel.
RULINGS ON THE MOTION FOR SUMMARY
JUDGMENT
In its opposition to the General Counsel's Mo-
tion for Summary Judgment the Respondent con-
tends, in substance, that he is entitled to have a new
election or at least a hearing on his Objection 2 con-
cerning the failure to use foreign language ballots.
This contention is without merit for the following
reasons.
On March 29, 1966, pursuant to a Stipulation for
Certification upon Consent Election entered into by
the parties hereto, an election was conducted under
the direction of the Regional Director for Region
13. The tally of ballots showed that there were ap-
proximately 58 eligible voters and that 58 ballots
were cast, of which 29 were for the Union and 16
were against the participating labor organization
with 13 challenges.2 On April 4, 1966, the Em-
ployer filed timely objections to conduct affecting
the results of the election.
On August 6, 1966, the Respondent filed excep-
tions to the Regional Director's report on objec-
tions and requested the Board to set aside the Re-
gional Director's overruling of Objection 2 and
order a hearing on that objection.
On September 8, 1966, the Board issued a Deci-
sion and Order in which it deferred ruling on the
Employer's exceptions until the issuance of a Hear-
ing Officer's Report on Objection I and remanded
the proceeding to the Regional Director for the pur-
pose of arranging the hearing.3 Thereafter, a hearing
was held before Hearing Officer Samuel Jacobson.
In his Report on Objections, dated December 9,
1966, the Hearing Officer recommended that Ob-
jection 1 be overruled and that, pursuant to the
Board's Decision and Order of September 8, 1966,
3 In the absence of an exception , the Regional Director 's recommenda-
tion that the challenge to one of the ballots be sustained and that therefore
it was unnecessary to report or make recommendations as the remaining
challenged ballots , was adopted pro forma.
168 NLRB No. 105
TRIO METAL CAP DIV., KERR GLASS MFG. CORP.
the case be transferred to the Board for a ruling on
Objection 2. Thereafter, both the Union and the
Respondent filed exceptions to the Hearing Of-
ficer's report. On May 15, 1967, the Board adopted
the findings and recommendations of the Hearing
Officer in overruling Objection 1, and the findings
and recommendations of the Regional Director in
overruling Objection 2, and certified the Union as
the exclusive bargaining representative of the em-
ployees in the appropriate unit. Respondent's Mo-
tion for Reconsideration, dated May 18, 1967, was
denied by the Board on May 25, 1967.
In his answer, the Respondent admits that on or
about June 5, 1967, the Union requested the
Respondent to bargain collectively with respect to
wages, hours, and other terms and conditions of em-
ployment, and that on June 13, 1967, he refused to
bargain with the Union.4 In defense, the Respond-
ent contends that (1) the underlying certification
is invalid in view of the Board's recent decision in
Fibre Leather Manufacturing Corp., 167 NLRB
No. 51; (2) there, is new evidence with respect to
the uses of foreign language ballots; (3) Respondent
is entitled to a hearing at some stage with respect to
the failure to use foreign language ballots; and (4)
the Board erred in holding that Respondent's ex-
ceptions to the Hearing Officer's report with
respect to Respondent's other objection did not
warrant reversal of the findings and recommenda-
tion of the Hearing Officer.
The Board, in Fibre Leather, supra, ordered a
new election where there were 15 or 20 Portuguese-
speaking employees in an 86-employee unit who
could not read English. Both the notices and ballots
were issued in English only thereby, under the cir-
cumstances there present, failing to assure an effec-
tive and informed expression of all employees of
their true desires. The present case differs from
Fibre Leather, supra, in that, while the ballots were
in English only, the notices of election were in En-
glish, Polish, and Spanish, thereby assuring the
Polish- and Spanish-speaking employees of an op-
portunity to make an effective and informed expres-
sion of their true desires. S
There is no merit in the Respondent's contention
that the items he described in his memorandum in
support of his answer constitute new evidence
requiring a hearing. In his attempt to obtain a hear-
ing, Respondent is attempting to relitigate issues de-
cided by the Board in the earlier related
proceedings. It is well established that, in the
absence of newly discovered or previously
unavailable evidence, a Respondent is not entitled
4 The General Counsel has attached to the Motion for Summary
Judgment copies of letters purporting to show that the Union requested
bargaining with Respondent by letter dated June 5, 1967, and that
Respondent declined to bargain with the Union by letter dated June 13,
1967. The Respondent does not question the authenticity of these docu-
ments.
5 Member Brown joins in the results reached in this decision but finds
803
to relitigate in a Section 8(a)(5) proceeding issues
which were or could have been raised in a related
representation proceeding. 6
All material issues having been either decided by
the Board or admitted in the answer to the com-
plaint, there are no matters requiring a hearing be-
fore a Trial Examiner. Accordingly, the General
Counsel's Motion for Summary Judgment is
granted.' On the basis of the record before it, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, Thomas A. Nelson, is, and has
been at all times material herein, an individual
proprietor doing business under the trade name and
style of Trio Metal Cap Division, Kerr Glass
Mfg. Corp. At all times material herein, Re-
spondent has maintained a plant and place of busi-
ness at 317 North Francisco Avenue, Chicago,
Illinois, where he is and has been at all times
material herein continuously engaged in the
manufacture of metal caps. During the last calen-
der year, Respondent, in the course and con-
duct of his business operations, purchased goods
and materials valued in excess of $50,000, all of
which was shipped to Respondent's plant directly
from States outside the State of Illinois, and sold
and shipped finished products valued in excess of
$50,000 directly to customers located outside the
State of Illinois.
The Respondent admits, and we find, that he is,
and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Molders and Allied Workers'
Union, Local 233, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein, the following em-
ployees have constituted and now constitute a unit
appropriate for purposes of collective bargaining
within the meaning of the Act:
All production and maintenance employees of
it unnecessary to distinguish this case from Fibre Leather, supra, in which
he did not participate.
6 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146
' Respondent's Motion to Revoke Certification and Motion to Strike
the Memorandum in Opposition to Employer's Motion to Revoke Certifi-
cation are without merit and are hereby denied.
336-845 0 - 70 - 52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer, but excluding office clerical em-
ployees, plant clerical employees, professional
employees, guards, and supervisors as defined
in the Act.
2. The certification
tion 8(a)(5) and (1) of the Act, we shall order that he
cease and desist therefrom and, upon request, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
On June 17, 1966, a majority of the employees in
said unit, voting in a secret-ballot election con-
ducted under the supervision of the Regional
Director for Region 13 of the National Labor Rela-
tions Board, designated the Union as their
representative for the purposes of collective bar-
gaining with Respondent, and on May 15, 1967, the
Board certified the Union as the exclusive bargain-
ing representative of the employees in said unit, and
the Union continues to be such representative.
B. The Request to Bargain and the Respondent's
Refusal
On or about June 5, 1967, the Union requested
and continues to request the Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about
June 13, 1967, the Respondent refused, and con-
tinues to refuse, to bargain collectively with the
Union as exclusive bargaining representative of the
employees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of the Respondent in the ap-
propriate unit described above; that the Union at all
times since May 15, 1967, has been and now is the
exclusive bargaining representative of all the em-
ployees in the aforesaid unit, within the meaning of
Section 9(a) of the Act; and that the Respondent
has since June 13, 1967, refused to bargain collec-
tively with the Union as the exclusive bargaining
representative of his employees in the appropriate
unit. By such refusal , the 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 acts of the Respondent set forth in Section
III, above , occurring in connection with his opera-
tions as 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 of commerce.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
CONCLUSIONS OF LAW
1. Thomas A. Nelson d/b/a Trio Metal Cap
Division, Kerr Glass Mfg. Corp., is an employer
engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Molders and Allied Workers
Union, Local 233, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
the Employer, but excluding office clerical em-
ployees, plant clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since May 15, 1967, the above-named or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the
aforesaid appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about June 13, 1967, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
the Respondent in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, and has thereby en-
gaged in , and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respond-
ent, Thomas A. Nelson d/b/a Trio Metal Cap
Division , Kerr Glass Mfg. Corp., Chicago, Illinois,
his 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 con-
ditions of employment with International Molders
and Allied Workers Union, Local 233, AFL-CIO,
TRIO METAL CAP DIV.,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees of
the Employer , but excluding office clerical em-
ployees, plant 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 exer-
cise of the rights guaranteed to them by 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
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment , and, if an un-
derstanding is reached , embody such understanding
in a signed agreement.
(b) Post at his 317 North Francisco Avenue,
Chicago, Illinois, place of business , copies, in En-
glish , Polish, and Spanish , of the attached notice
marked "Appendix .'" Copies of said notice, to be
furnished by the Regional Director for Region 13,
after being duly signed by the Respondent's
representative , shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained by him for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by 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 10 days from the date of this
Order, what steps have been taken to comply
herewith.
N 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 "a Decision and
Order" the words "a Decree of the United States Court of Appeals, En-
forcing an Order."
KERR GLASS MFG. CORP.
APPENDIX
NOTICE TO ALL EMPLOYEES
805
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 you that:
WE WILL NOT refuse to bargain collectively
with International Molders and Allied Workers
Union , Local 233, AFL-CIO , as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act,
WE WILL, upon request , bargain with the
above-named Union as the exclusive represent-
ative of all our employees in the bargaining
unit described below with respect to rates of
pay, wages , hours, and other terms and condi-
tions of employment , and if an understanding
is reached , embody such understanding in a
signed agreement.
The bargaining unit is:
All production and maintenance em-
ployees of the Employer, but excluding of-
fice clerical employees , plant clerical em-
ployees, professional employees , guards,
and supervisors as defined in the Act.
THOMAS A. NELSON
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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, 881 U.S. Courthouse and Federal Office
Building, 219 South Dearborn Street, Chicago, Il-
linois 60604, Telephone 828-7570.