Martin Stamping and Stove Co.

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 558 (N.L.R.B. 1970)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin Stamping and Stove Company and United
Glass and Ceramic Workers of North America,
AFL-CIO, CLC. Case 10-CA-8325
December 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On September 17, 1970, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment, finding no merit in various
contentions made by Respondent in its Memorandum
of Position in opposition to the General Counsel's
Motion for Summary Judgment, and finding on the
pleadings that Respondent had engaged in and was
engaging in a certain unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended. The Trial Examin-
er recommended that Respondent cease and desist
from such unfair labor practice and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner 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 supporting brief, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Martin Stamping and Stove Company,
Athens, Alabama, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's recommended Order.'
I In footnote 8 of the Trial Examiner's Decision substitute "20" for "10"
days.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HAROLD X. SUMMERS, Trial Examiner: The case arises on
a Motion for Summary Judgment, filed by counsel for the
General Counsel, upon an admitted refusal by Martin
Stamping and Stove Company (herein called Respondent)
to bargain with United Glass and Ceramic Workers of
North America, AFL-CIO, CLC (herein, Union).
The Representation Proceeding i
Upon a petition filed on May 28, 1969, under Section 9(c)
of the Act by the Union, and pursuant to a Stipulation for
Certification Upon Consent Election, approved by the
Regional Director for Region 10 of the Board on July 10,
1969, an election was conducted on August 7, 1969, under
the direction and supervision of the Regional Director
among the employees in an appropriate bargaining unit,
described hereinafter, of employees of Respondent.
Upon conclusion of the election, on August 7, 1969, the
Regional Director served on the parties a tally of ballots
which showed that, of approximately l I1 eligible voters,
109 cast ballots, of which 58 were for the Union, 44 against,
and 7 ballots were challenged.
Thereafter, on August 14, 1970, Respondent filed timely
objections , alleging , in substance, the following grounds for
setting aside the election:
1. The Union threatened voters with bodily harm to
compel attendance at a meeting.
2. The Union threatened employees with loss of job and
economic hardships should the Union lose the election.
3. The Union, in a handbill distributed the day before
the election, made material misrepresentations as to
benefits gained by its bargaining elsewhere.
4. The Union, at a meeting held the day before the
election, made a material misrepresentation as to a working
condition prevailing at another plant at which the Union
was bargaining agent.
5. The Union threatened voters with bodily harm if they
did not vote for the Union.
6. The Union engaged in last minute electioneering at
the polling place.
On October 30, 1969, the Regional Director issued a
Report on Objections, in which he discussed each of the
above objections, along with the related evidence. He found
that Respondent had submitted no evidence in support of
Objections 1, 4, and 6; as for 2 and 5, he found (a) that there
was no evidence of union responsibility, (b) that the
versions of threats were inconsistent, and (c) that the
alleged threats were not so aggravated in character as to
preclude a free choice; and, as for 3, he found that there
I Administrative or official notice is taken of the record in the
representation proceeding , Case 10-RC-7797, as the term "record" is
defined in Section 102 68 and 102.69(f) of the Board's rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board , Series 8 , as amended) See LTV Electrosystems, Inc, 166 NLRB No
81, enfd 388 F 2d 683 (C A 4), Golden Age Beverage Co, 167 NLRB No.
24, enfd 415 F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp. 573
(D C Va ), Intertype Co v N L R B, 401 F.2d 41 (C.A. 4), Follett Corp., et
at, 164 NLRB No 47, enfd, 397 F.2d 91 (C.A 7), Section 9(d) of the
National Labor Relations Act
187 NLRB No. 75
MARTIN STAMPING AND STOVE CO.
had been no material misrepresentations. Concluding that
the objections lacked merit, he recommended that they be
overruled and that the Union be certified as bargaining
representative of the employees in the appropriate unit.
Respondent filed exceptions with respect to the Regional
Director's rulings on Objections 2, 3, and 5 and requested
review of the same. The Board overruled the exceptions and
adopted the Regional Director's findings and recommenda-
tions.
The Instant Unfair Labor Practice Case
On May 11, 1970, the Union filed the unfair labor
practice charge initiating this proceeding, alleging that
Respondent had engaged and was engaging in specified
unfair labor practices; and, on July 16, 1970, it filed the first
amended charge, eliminating all allegations except that
Respondent had refused and continued to refuse to bargain
with the Union.
On July 16, 1970, the Regional Director issued a
Complaint and Notice of Hearing alleging that the
Respondent had committed unfair labor practices in
violation of Sections 8(a)(5) and (1) and 2(6) and (7) of the
Act, by refusing and continuing to refuse to bargain
collectively with the Union as the exclusive collective-
bargaining representative of all the employees in the
appropriate unit described hereinafter.
On July 23, 1970, the Respondent filed its answer to said
complaint, in which it admitted most of the material
allegations of the complaint, denied others, and pleaded
affirmatively; in effect, it denied the commission of any
unfair labor practices on the ground that the Board's
certification of the Union as exclusive bargaining repre-
sentative was invalid.
On August 4, 1970, counsel for the General Counsel filed
a Motion for Summary Judgment on the grounds that
Respondent's answer raised no issues of fact or law
requiring a hearing and that Respondent's answer only
attempted to relitigate issues already resolved in the
representation proceeding. On August 12, 1970, I issued a
telegraphic order that Respondent file a memorandum of
position with me on or before the close of business August
21, 1970. On August 21, 1970, Respondent's Memorandum
of Position in Opposition to the General Counsel's Motion
for Summary Judgment was received.
Ruling on Motion for Summary Judgment
The Respondent opposed the Motion for Summary
Judgment on these grounds: (1) that granting the motion
would deprive Respondent of a hearing, depriving it of due
process of law; (2) that the Regional Director did not fully
review and discuss the evidence submitted by Respondent
in support of its objections; and (3) that there still exist
unresolved factual issues requiring determination.
These are among the grounds raised and passed on in the
Board review of the Regional Director's Report on
Objections following the related representation proceeding.
2 Krieger-Ragsdale & Co., Inc., 159 NLRB 490, enfd. 379 F.2d 517 (C.A.
7), cert. denied 389 U.S. 1041; N.L.R.B. v. Macomb Pottery, 376 F.2d 450
(C.A. 7); Howard Johnson Company, 164 NLRB No. 121; Metropolitan Life
Insurance Company, 163 NLRB 579. See Pittsburgh Plate Glass Co. v.
559
Thus, Respondent merely reiterates issues and argument
previously considered and decided by the Board.
It is established Board policy, in absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a trial examiner in an unfair labor
practice case of issues which were or could have been
litigated in a prior related representation proceeding.2
Respondent does not claim to present any newly discovered
or previously unavailable evidence. Respondent does state
that there are genuine, substantial material fact issues
which have never been litigated in an adversary proceeding
before the Board.
The contention that denial of a hearing would deprive
Respondent of due process of law is without merit. A
hearing such as Respondent seeks is not a matter of right
unless substantial and material issues are raised. Respon-
dent cites the Bata Shoe Company3 decision as his authority
in demanding a hearing, but that case, at page 826, states
outright that ". . . there is no requirement, constitutional or
otherwise, that there be a hearing in the absence of
substantial and material issues crucial to determination of
whether NLRB election results are to be accepted for
purposes of certification." And, as stated previously, the
Board, in the representation case related hereto, failed to
find any substantial or material issues requiring a hearing.
Respondent further directs the Trial Examiiner's attention
to United States Rubber Company v. N. L. R.B., 4 as a
situation where the court found that Respondent was
effectively deprived of its only opportunity to be fairly
heard in defense of the complaint when the Trial Examiner
granted a motion for judgment on the pleadings. However,
that case is distinguishable from the instant one in that,
there, no opportunity existed to refute a representation in
the Union's "midnight hour" letter to employees while here,
as the Regional Director's Report on Objections adopted
by the Board points out, a copy of the collective-bargaining
agreement alluded to by the Union was made available in
the plant office for all employees to inspect if they so
desired.
Thus, there are no unresolved matters requiring an
evidentiary hearing. The General Counsel's Motion for
Summary Judgment is consequently granted.
On the basis of the record, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Alabama corporation with its
principal office and place of business located in Athens,
Alabama, where it is engaged in the manufacture and sale
of electric heaters and related products.
During the past calendar year, which period is represent-
ative of all times material herein, the Respondent, in the
course and conduct of its business operations, sold and
shipped finished products valued in excess of $50,000
directly to customers located outside the State of Alabama.
The Respondent is now, and has been at all times
N.L.R.B., 313 U.S. 146, 162; NLRB Rules and Regulations, Sections
102.67(f) and 102.69(c).
3 N.L.R.B. v. Bala Shoe Co., 377 F.2d 821 (C.A. 4).
4 373 F.2d 602, 607 (C.A. 5).
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material herein , an employer engaged in commerce within
the meaning of Sections 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
The following employees of Respondent constitute a unit
appropriate for purposes of collective bargaining within the
meaning of Section 9(d) of the Act:
All production and maintenance employees em-
ployed by Respondent at Athens, Alabama, including
shipping and receiving employees, but excluding all
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
On March 24, 1970, the Board certified the Union as the
exclusive collective-bargaining representative of the em-
ployees in the above-described unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
Since on or about April 13, 1970, and at all times
thereafter, Respondent did refuse, and continues to refuse,
to bargain collectively with the Union as the collective-
bargaining representative of the employees in the appropri-
ate unit.
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) of the Act and has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(l) of the
Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and upon
the entire record and pursuant to Section 10(c) of the Act, I
recommend that the Board issue the following:
ORDERS
Martin Stamping and Stove Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Glass
and Ceramic Workers of North America , AFL-CIO, CLC,
as the exclusive collective -bargaining representative of the
employees in the following appropriate bargaining unit-
All production and maintenance employees em-
ployed by Respondent at Athens , Alabama , including
shipping and receiving employees , but excluding all
office clerical employees , professional employees,
guards , and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent employees as such exclusive collective-
bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with United Glass
and Ceramic Workers of North America , AFL-CIO, CLC,
as the exclusive representative of all employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment and embody in a signed agreement any
understanding reached .6
(b) Post at its place of business in Athens, Alabama,
copies of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional Director
for Region 10, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, in conspicu-
ous 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 Regional Director for Region 10, in
writing, within 20 days from receipt of this recommended
Order what steps the Respondent has taken to comply
herewith .8
5 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
6 For the purpose of determining the duration of the certification, the
initial year of certification shall be deemed to begin on the date the
Respondent commences to bargain in good faith with the Union as the
recognized exclusive bargaining representative in the appropriate unit The
purpose of this provision is to insure that the employees in the appropriate
unit will be accorded the services of their selected bargaining agent for the
period provided by law See Mar-Jac Poultry Co, 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)
r In the event that the Board's 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 to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
8 In the event this recommended Order is adopted by the Board, this
provision shall be modified to read - "Notify the Regional Director for
Region 10, in wasting, within 10 days from receipt of this Order, what steps
the Respondent has taken to comply herewith "
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 with
United Glass and Ceramic Workers of North America,
AFL-CIO, CLC, as the exclusive collective-bargaining
representative of all the following employees:
All production and maintenance employees at
Athens , Alabama, including shipping and receiv-
ing employees , but excluding all office clerical
employees , professional employees , guards, and
supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the Union
'to negotiate for or represent employees as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive collective -bargaining representative of the
employees in the appropriate unit , and, if an under-
MARTIN STAMPING AND STOVE CO. 561
standing is reached , we will sign a contract with the This is an official notice and must not be defaced by
Union . anyone.
This notice must remain posted for 60 consecutive days
MARTIN STAMPING AND from the date of posting and must not be altered, defaced,
STOVE COMPANY or covered by any other material.
(Employer) Any questions concerning this Notice or compliance with
its provisions , may be directed to the Board's Office,
Dated By Peachtree Building, Room 701 , 730 Peachtree Street, N.E.,
( Representative) (Title ) Atlanta, Georgia 30308, Telephone 404-526-5760.