Macomb Pottery Co.

National Labor Relations Board - Board Decisions

Apr 11, 1966

157 N.L.R.B. 1616 (N.L.R.B. 1966)

1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feurs, Warehousemen and Helpers of America, Local No. 537, as their exclusive
collective-bargaining representative, or by supporting or assisting the circulation
of any decertification petition or the solicitation of employee signatures for such
a petition, or by any like or related conduct-with respect to their right to par-
ticipate in self-organization, to form labor organizations, to join or assist Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 537, or any other labor organization, to bargain collectively
through representatives of their own free choice, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent that
such right may be affected by some agreement, hereinafter negotiated, which may
require membership in a labor organization as a condition of employment, author-
ized in Section 8 (a) (3) of the Act, as amended.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by a lawful agreement which requires membership in a labor orga-
nization as a condition of employment.
INTER-MOUNTAIN DAIRYMEN, 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 pro-
visions, they may communicate directly with the Board's Regional Office, 609 Rail-
way Exchange Building, Seventeenth and Champa Streets, Denver, Colorado, Tele-
phone No. 297-3551.
Macomb Pottery Company, a subsidiary of Haeger Potteries
Inc., and Ceramics Inc., a subsidiary of Macomb Pottery Com-
pany and International Brotherhood of Operative Potters,
AFL-CIO . Case No. 38-CA-132. April 11, 1966
DECISION AND ORDER
On January 5, 1966, Trial Examiner Charles W. Schneider issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Deci-
sion.' Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
Pursuant to the provision 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 [Chairman McCulloch and Members Brown and Zagoria].
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 Trial
I On January 10, 1966, the Trial Examiner issued an erratum correcting his Decision
in a minor respect.
157 NLRB No. 124.
MACOMB POTTERY COMPANY 1617
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,,
and recommendations of the Trial Examiner.2
[The Board adopted the Trial Examiner's Recommended Order.]
2 Cf. N.L.R B. v . Douglas County Electric Membership Corpov ation, 358 F. 2d 125.
(C.A. 5).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding
Pursuant to a Decision and Direction of Election issued by the Regional Director
for the National Labor Relations Board, Region 13, in Case No 38 -RC-12, an:
election by secret ballot was conducted on February 11, 1965, at the plants of the
Respondent Employer described in section 1 below. International Brotherhood of
Operative Potters, AFL-CIO, herein called the Union , received a majority of the valid
votes cast (excluding several challenged ballots insufficient to affect the results of
the election ). The Respondent filed timely objections to the conduct of said election;
based upon certain asserted preelection conduct by the Union. The Repondent did'
not request a hearing on its objections . In due course , following investigation, the
Regional Director issued a report on objections in which he found the objections
not sustained and recommended to the Board that they be overruled in their entirety-
The Respondent filed exceptions with the Board to the Regional Director 's report
and requested that the Regional Director be overruled . The Respondent did not
request a hearing nor did it appear to take issue with the Regional Director 's factual
findings. On July 21 , 1965, the Board issued its Decision and Certification of Repre-
sentatives in which it found that the Respondent 's exceptions raised no substantial
or material issues of fact or law which would warrant reversal of the Regional
Director 's findings and recommendations , and sustained the Regional Director 's action.
At the same time the Board certified the Union as the collective -bargaining repre-
sentative of the Respondent 's employees in the appropriate unit.
The Complaint Proceeding
On September 28, 1965 , upon a charge filed by the Union , the General Counsel
caused a complaint to be issued alleging that the Respondent committed unfair labor
practices in violation of Section 8(a)(1) and ( 5) of the Act by refusing since on or
about July 28, 1965, to bargain with the Union on demand , and by granting a wage
increase on or about September 5, 1965, to certain employees in the appropriate unit
without notice to or consultation with the Union.
In due course the Respondent filed its answer to the complaint in which it denied
the commission of unfair labor practices , but admitted most other allegations of the
complaint: those concerning jurisdiction, that the Union is a labor organization, the
appropriate unit , the election results, and the Union 's certification . In defense the
Respondent asserted that the election and certification of the Union are unlawful
and invalid because the Respondent 's objections and exceptions were erroneously
overruled . In addition , the Respondent stated that the Regional Director and the
Board deprived the Respondent of due process of law by failing to hold or direct a
hearing on the Respondent 's contentions.
Thereafter , on October 28, 1965, the General Counsel filed a motion for summary
judgment and for issuance of a Trial Examiner 's Decision and Recommended Order,
based upon the ground that all material issues or facts not admitted in the Respondent's
answer had been litigated in the representation case and were not open to relitiga-
tion in a complaint proceeding . Upon a rule to show cause issued by Trial Examiner
Thomas Kessel , the Respondent filed an opposition to the General Counsel 's motion
for summary judgment. Subsequently Charles W. Schneider was designated as Triat
Examiner to rule on the matter.
Ruling on the Motion for Summary Judgment
In its opposition to the motion for summary judgment, the Respondent's sole con-
tention is that Section 10(b) of the Act makes a hearing mandatory in an unfair
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice case if requested by a respondent, thereby precluding granting of the
instant motion. This contention is not sustained.
A hearing for the presentation of evidence is not required where there are no
factual issues to decide. As was said by the Second Circuit Court of Appeals in
Charles Fay, as president of Amalgamated Machine Instrument and Metal Local 475,
NE (Parker-Kalon Corp.) v. Douds, 172 F. 2d 720, 725:
Neither the statute [N.L.R.A.], nor the Constitution, gives a hearing where there
is no issue to decide.... The Constitution protects procedural regularity, not as
an end in itself, but as a means of defending substantive interests. Every sum-
mary judgment denies a trial upon issues formally valid.
While the immediate issue in that case was the denial of a representation hearing under
Section 9 of the Act, the language of the court does not suggest a different standard
in that respect in Section 10 proceedings.
The Tenth Circuit Court of Appeals has said: 1
. it is fundamental to the law that the submission of evidence is not required
to characterize `a full hearing', where such evidence is material to the issue to
be decided. . . . Where no genuine or material issue of fact is presented the
court or administrative body may pass upon the issues of law after according
the parties the right of augment.
See also Harvey Aluminum (Inc.), et al., d/b/a Wallace Detective and Security
Agency v. N.L.R.B., 335 F. 2d 749, 757-758. Fed. R. Civ. P. 56(c) authorizes the
entry of summary judgment where "there is no genuine issue as to any material fact,"
or on "failure by a party to set forth specific facts showing that there is a genuine
issue for trial." (56(e).) There is no apparent reason to conclude that Congress
provided differently with respect to proceedings under the N.L.R.A.
As had been seen, the Respondent did not request either the Regional Director or
the Board to hold a hearing in the representation proceeding. Its presentation in the
representation case shows no evident difference with the Regional Director or the
Board over the facts. Nor does the Respondent's opposition to the motion for sum-
mary judgment assert the existence of any factual controversy. In sum, the Respond-
ent's position is that the Regional Director and the Board reached erroneous results
on the facts and the law. Under such circumstances there is no necessity or require-
ment for a hearing to develop evidence.
The Respondent thus seeks to relitigate here the correctness of the Board's action
in dismissing its objections to the election and in certifying the Union. This it may
not do. In the absence of newly discovered or previously unavailable evidence, issues
which were or could have been raised in a related representation case may not be
relitigated in an unfair labor practice proceeding? The Board has said:
It is the policy of the Board not to allow a party to relitigate in a complaint
proceeding such' as this one the legal effect of matters which the party has
already litigated and the Board has decided in a prior representation pro-
ceeding.3
There is no contention by the Respondent that it would seek at a hearing before a
Trial Examiner in the unfair labor practice proceeding to adduce evidence newly
discovered or previously unavailable.
In any event, other than its contention that Section 10 of the Act requires a hearing
whenever requested by a respondent (which has been found not to be sustained), all
the issues raised by the Respondent, both in the representation case and now, were
presented to the Board and finally decided by it; whether correctly is not for me to
say. The Board's disposition of the matter constitutes, at this stage of the proceed-
ings, the law of the case, and is binding on me. As was said by Trial Examiner
Nachman in a similar situation in the case of Schapiro & Whitehouse, Inc., 148 NLRB
958, 960: "If, as Respondent contends, these findings of the Board are in error, then
only the Board, or some court of competent jurisdiction, can correct such error."
All material issues having thus been decided by the Board or admitted in the answer
to the complaint, there are no matters requiring a hearing before a Trial Examiner.
Accordingly, the General Counsel's. motion for judgment on the pleadings and for
issuance of a Trial Examiner's Decision and Recommended Order is granted. On the
basis of the record before me, I make the following:
1Producers Livestock Marketing Association, a Corporation of Salt Lake City, Utah v.
United States of America, etc., 241 F. 2d 192, 196 (C.A. 10), affil. 356 U.S. 282.
s Pvttsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146; United States Rubber
Company, 155 NLRB 1298.
8 Producers, Inc., 133 NLRB 701, 704.
MACOMB POTTERY COMPANY 1619
FINDINGS OF FACT
1. JURISDICTION
Macomb Pottery Company, a subsidiary of Haeger Potteries Inc., and Ceramics
Inc., a subsidiary of Macomb Pottery Company, is, and has been at all times material
herein, an Illinois corporation, with its principal office and place of business located
at Macomb , Illinois, where it is engaged in the manufacture and sale of pottery.
Respondent , during the past calendar year, which period is representative of all
times material herein , sold and shipped finished products valued in excess of $50,000
to'customers located outside the State of Illinois.
Respondent is, and has been at all times material herein , engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Operative Potters, AFL-CIO, is, and at all times
material herein has been , a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
All production and maintenance employees at the two plants of the Employer
located at Macomb , Illinois, excluding all office personnel , foremen , assistant fore-
men, 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 February 11, 1965 , a majority of the employees in the appropriate unit, by a
secret-ballot election conducted under the supervision of the Regional Director of the
National Labor Relations Board, designated and selected the Union as their repre-
sentative for the purposes of collective bargaining with Respondent , and on July 21,
1965, the Board certified the Union as the exclusive bargaining representative of the
employees in the said unit , within the meaning of Section 9(a) of the Act.
Since on or about July 28, 1965 , Respondent has refused to bargain collectively
-with the Union as the exclusive representative of all the employees of Respondent in
the appropriate unit, in that:
(a) Respondent has refused to recognize and bargain collectively with the Union,
notwithstanding its certification by the Board as the exclusive representative of
Respondent's employees in said unit; and
(b) Respondent , on or about September 5, 1965 , granted a--wage increase to certain
of its employees in the appropriate unit without notice to or consultation with the
Union. _
These refusals to bargain constitute unfair labor practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities as set forth in section III, above , occurring in connection
with the operations of Respondent set forth 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.
Upon the foregoing findings of fact and the record before me, I make the following:
CONCLUSIONS OF LAW
1. Macomb Pottery Company, a subsidiary of Haeger Potteries Inc., and Ceramics
Inc., a subsidiary of Macomb Pottery Company, Macomb, Illinois, is an employer
within the meaning of Section 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Operative Potters, AFL-CIO, is 'a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees at the two plants of the Employer
located at Macomb, Illinois, excluding all office personnel , foremen, assistant foremen,
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.
4. At all times since February 11, 1965, International Brotherhood of Operative
Potters, AFL-CIO, has been and is now the exclusive representative of all employees
in the appropriate unit within the meaning of Section 9(a) of the Act.
221-374-66-vol. 157-103
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By refusing to bargain collectively with the Union since on or about July 28,
1965, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon the
record in this case, I recommend that Respondent, Macomb Pottery Company, a
subsidiary of Haeger Potteries Inc., and Ceramics Inc., a subsidiary of Macomb
Pottery Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Brotherhood of Operative
Potters, AFL-CIO, as the exclusive bargaining representative of the employees in the
following appropriate unit: All production and maintenance employees at the two
plants of the Employer located at Macomb, Illinois, excluding all office personnel,
foremen, assistant foremen, professional employees, guards, and supervisors as
defined in the Act.
(b) Making unilateral changes in wages of the employees in the appropriate unit
above, without consulting and negotiating with the International Brotherhood of
Operative Potters, AFL-CIO.
(c) In any like or related manner, interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act
(a) Upon request, bargain collectively with the International Brotherhood of
Operative Potters, AFL-CIO, as the exclusive representative of the employees in the
appropriate unit as above found, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plants in Macomb, Illinois, copies of the attached notice marked
"Appendix." a Copies of said notice, to be furnished by the Officer-in-Charge for
Subregion 38, shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent 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 Officer-in-Charge for Subregion 38, in writing, within 20 days from
the receipt of this Decision, what steps the Respondent has taken to comply herewith.5
'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."
6In the event that this Recommended Order is 'adopted by the Board , this provision
shall be modified to read: "Notify the Officer-in-Charge, in writing, within 10 days from
the date of this Order, what steps the 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 Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with the International Brother-
hood of Operative Potters, AFL-C10, as the exclusive bargaining representative
of the employees in the following appropriate unit:
All production and maintenance employees at the two plants of the
Employer located at Macomb, Illinois, excluding all office personnel, fore-
men, assistant foremen , professional employees, guards, and supervisors as
defined in the Act. -
WE WILL NOT unilaterally make changes in the wages of the employees in the
appropriate unit without consulting and negotiating with the International
Brotherhood of Operative Potters, AFL-CIO.
TEAMSTERS , CHAUFFEURS, ETC., LOCAL UNION 631 1621
WE WILL, upon request, bargain collectively with the aforesaid labor organiza-
tion as the exclusive representative of the employees in the appropriate unit, and,
if an understanding is reached , embody such understanding in a signed agreement.
WE WILL NOT, in any like or related manner, interfere with, restrain , or coerce
employees in the exercise of their rights guaranteed by Section 7 of the Act.
MACOMB POTTERY COMPANY, A SUBSIDIARY OF
HAEGER POTTERIES INC., AND CERAMICS INC.,
A SUBSIDIARY OF MACOMB POTTERY COMPANY,
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 provi-
sions, they may communicate directly with the Board 's Subregional Office, Fourth
Floor, Citizen 's Building , 225 Main Street, Peoria, Illinois, Telephone No. 673-9061,
Extension 282.
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union
No. 631 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and Reynolds Electrical
& Engineering Company, Inc. Case No. 20-CD-134. April 19,
1966
DECISION AND ORDER
On December 27, 1965, Trial Examiner James T. Barker issued his
Decision 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 attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The General Counsel, the
Charging Party, and the Intervenor I filed briefs in support of the
Trial Examiner's Decision.
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. [Members Fanning, Brown, and Zagoria].
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 Trial
Examiner's Decision, the exceptions and briefs, and the, entire record
in this case,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
I International Brotherhood of Electrical Workers, Local 357.
2 The parties agreed to incorporate the record in the 10 (k) proceeding in the present
proceeding.
157 NLRB No. 130.