Monroe Auto Equipment Co.

National Labor Relations Board - Board Decisions

May 25, 1967

164 N.L.R.B. 1051 (N.L.R.B. 1967)

MONROE AUTO EQUIPMENT CO.
Monroe Auto Equipment Company, Hartwell
Division and International Union, United
Automobile, Aerospace and Agricultural
Implement Workers of America, UAW,
AFL-CIO. Case 10-CA-6705.
May 25,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On March 29, 1967, Trial Examiner Charles W.
Schneider 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 Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
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.
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 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
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Monroe Auto
Equipment Company, Hartwell Division, Hartwell,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
i The Charging Party has filed exceptions to the Trial
Examiner's rejection of its request for a monetary remedy to make
the employees whole for losses they may have suffered as a result
of the Respondent's unlawful refusal to bargain We deem it
inappropriate in this case to depart from our existing policy with
respect to remedial orders in cases involving violations of Section
8(a)(5), and therefore deny the said request However, in adopting
the Trial Examiner's disposition of this matter , we do not pass on
or adopt his rationale for rejecting the Charging Party's
contentions
1051
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER , Trial Examiner : Upon petition
for certification as collective-bargaining representative
filed by International Union , United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, AFL-CIO, herein called the Union, the
Regional Director for Region 10 of the Board on July 17,
1964 , approved a stipulation for certification upon consent
election executed by Monroe Auto Equipment Company,
Hartwell Division , Hartwell , Georgia, herein called the
Respondent , and by the Union on July 15, 1964. The
appropriate bargaining unit was stipulated to be the unit
set out hereinafter.
An election held on July 23 and 24 , 1964 , pursuant to the
stipulation , was set aside by the Board on November 6,
1964 , upon recommendation of the Regional Director, and
a second election was directed by the Board . Pursuant
thereto, a second election by secret ballot was conducted
on March 3 and 4 , 1966 , under the direction and
supervision of said Regional Director , in which election
the Union received a majority of the valid ballots cast. The
Respondent filed timely objections to the conduct of the
election and to conduct affecting the results of the
election . On May 16, 1966 , the Regional Director, after
investigation , issued a report on objections in which he
recommended that the objections be overruled and that
the Union be certified as bargaining representative of the
employees involved . Thereafter the Respondent filed
timely exceptions to the Regional Director 's report on
objections . On August 18, 1966 , the Board issued its
Supplemental Decision and Certification of Representative
in which it found that the Respondent's exceptions raised
"no material or substantial issues of fact or law which
would warrant reversal of the Regional Director's findings
and recommendations or require a hearing ." Accordingly
the Board adopted the Regional Director 's report and
certified the Union as the bargaining representative under
the Act . Thereafter , a petition for reconsideration and a
subsequent motion for clarification filed by the
Respondent were denied by the Board on September 16
and 22 , 1966 , respectively.
The Complaint Case
On September 30, 1966, the Union filed the unfair labor
practice charge involved in the instant case, in which it
alleged that since September 19, 1966, the Respondent
had refused to bargain with the Union.
On December 9, 1966, the General Counsel, by the
Regional Director of Region 10, issued a complaint
alleging that the Respondent had committed unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act by
refusing to bargain with the Union upon request. In due
course the Respondent filed its answer to the complaint in
which certain allegations of the complaint were admitted,
others denied, and to still others, lack of knowledge was
pleaded.
i In accordance with the General Counsel's request,
administrative or official notice is taken of the representation
proceeding, Case 10-RC-5960. See Section 9(d) of the National
Labor Relations Act
164 NLRB No. 144
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer the Respondent admitted the allegations of
the complaint numbered 1, 2, 3, and 4, which paragraphs
in part form the basis for jurisdiction. The Respondent
denied the following allegations: (1) At all times since
August 18, 1966, the Union has been, and is, the collective-
bargaining representative of a majority of the employees in
the appropriate unit , and (2) the Respondent engaged in
unfair labor practices within the meaning of Sections
8(a)(5) and (1) and 2(6) and (7) of the Act. The answer neither
admitted nor denied the following allegations of the com-
plaint: On August 18, 1966, the Board certified the Union
as the exclusive collective-bargaining representative;
and Respondent has refused to bargain collectively with
the Union. With respect to the following allegations of the
complaint, the answer averred that the Respondent had no
knowledge of the matter, that the Union is, and has been at
all times material, a labor organization within the meaning
of Section 2(5) of the Act, and that the unit alleged in the
complaint constitutes a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
On January 16, 1967, counsel for the General Counsel
filed a motion for summary judgment contending that facts
of official record and other facts submitted with the motion
established the allegations of the complaint as a matter of
law, and that therefore there is no necessity for a hearing.
On January 20, 1967, I issued an order to show cause on
the motion for summary judgment. The parties were
directed to show cause on or before February 6, 1967, as to
whether the motion for summary judgment should be
granted . The Union has filed a response and brief in
support of the motion for summary judgment , and the
Respondent has filed a resistance to the motion.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation in a complaint case of issues which were,
or could have been, litigated in a prior, related
representation proceeding.4
No newly discovered or previously unavailable evidence
is offered here by the Respondent. In such a circumstance
the prior findings of the Board constitute, at this stage of
the proceedings, the law of the case and are binding on
me. There are thus no issues litigable before me and no
issues to be resolved by hearing.
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Michigan corporation with an office and
plant in Hartwell , Georgia, is engaged at said location in
the manufacture , sale, and distribution of automotive
shock absorbers and related products . During the year
preceding the issuance of the complaint herein, a
representative period , Respondent sold and shipped
products valued in excess of $50,000 from its plant in
Hartwell , Georgia, directly to customers outside the State
of Georgia.
As is admitted by Respondent , it 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
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.
Ruling on Motion for Summary Judgment
The Respondent opposes the General Counsel' s motion
for summary judgment. The Respondent contends that its
answer raises substantial material issues of fact which
cannot be resolved without hearing. However, it is clear
that, with the exception of the demand to bargain and the
refusal, all the material issues of fact raised by the
Respondent's answer have been decided by the Board.
In a prior case involving the Respondent at this same
plant the Respondent admitted, and the Board found, that
the Union involved is a labor organization within the
meaning of the Act.2 No reason is suggested here for
departure from that admission and determination. The
appropriateness of the bargaining unit and the Union's
status as the statutory representative of the employees
was decided by the Board in the related representation
case. Indeed, the Respondent therein agreed to the
election in this unit. As to the demand and refusal to
bargain , the Union, in letters to the Respondent dated
August 22 and September 14, 1966, requested the
Respondent to meet with it for the purposes of collective
bargaining. Under date of September 19, 1966, the
Respondent, by its counsel,. declined to bargain "until we
have exhausted our lawful remedies. '13
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Hartwell, Georgia, plant, including inspectors,
truckdrivers, leadmen, and temporarily laid-off
employees, but excluding factory administrative clerks,
quality control personnel , time-study personnel, technical-
experimental department employees, production
engineers , administrative personnel, office clerical
employees, permanently laid-off employees, watchmen,
and supervisors as defined in the Act.
On March 3 and 4, 1966, a majority of Respondent's
employees in the said unit selected the Union as
their collective -bargaining representative in a secret-ballot
election conducted under the supervision of the Regional
Director for Region 10 of the National Labor Relations
Board in Case 10-RC-5960.
On August 18, 1966, the National Labor Relations
Board, after consideration of Respondent's objections to
the above-described election, certified the Union as the
exclusive collective-bargaining agent of the employees in
the said unit.
I Monroe Auto Equipment Company, 159 NLRB 613. 162, Producers, Inc., 133 NLRB 701, 704; Kreiger-Ragsdale &
3 Copies of these letters are attached to the motion for Company, Inc., 159 NLRB 490, Collins & Aikman Corporation,
summary judgment . No question is raised by the Respondent in 160 NLRB 1750, Frito-Lay, Inc., 161 NLRB 950. See also Section
its response to the order to show cause as to the authenticity of 102 67(f) and 102 69(c) of the Board Rules and Regulations, Series
these letters. 8, as amended , revised January 1,1965.
4 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146,
MONROE AUTO EQUIPMENT CO. 1053
At all times since on or about August 18, 1966, and,
continuously to the present, the Union has been the
representative for the purpose of collective bargaining of
the employees in the said unit, and, by virtue of Section
9(a) of the Act, has been and is now the exclusive
representative of all the employees in said unit for the
purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
On August 22 and September 14, 1966, the Union
requested the Respondent to bargain collectively with it
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, as the
collective-bargaining representative of Respondent's
employees in the appropriate unit.
On or about September 19, 1966, Respondent refused,
and continues to refuse, to recognize and bargain with the
Union as such representative.
By thus refusing to recognize and bargain with the
Union the Respondent has refused to bargain collectively
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)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(5) and (1) of the
Act, I shall recommend 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 and still refuses to bargain
collectively with the Union as the exclusive representative
of the employees in the appropriate unit herein. I shall
therefore recommend that the Respondent bargain
collectively upon request with the Union as the exclusive
representative of these employees and, if an
understanding is reached, embody such understanding in
a signed agreement.
The Charging Party contends that the foregoing remedy,
conventional in cases of 8(a)(5) violations, is inadequate,
and in its response to motion for summary judgment and
brief in support thereof urges that in addition I grant a
monetary remedy to make the employees whole for losses
they may have suffered as a result of the Respondent's
wrongful conduct.
The Charging Party urges that any of the following three
yardsticks be used to determine the amount of backpay:
1. Comparing the increases both direct and indirect
enjoyed by Respondent's employees from September
1966, to the date that the Respondent discontinues its
unlawful refusal to bargain, with the average increases
directly and indirectly negotiated by the Union at other
similar plants.
2. Comparing the increases, direct and indirect,
enjoyed by Respondent's employees from September
1966, to the aforesaid date, with the average increase
negotiated by the Union with other Georgia-located
employers engaged in the manufacture of auto parts or
equipment or similar products.
3. Comparing the economic gains of Respondent's
employees with Bureau of Labor Statistics' average
figures of negotiated increases for the geographical area,
the particular industry, or for manufacturing of precision
parts and machinery generally.
This issue, namely, the propriety of an order directing
reimbursement of employees for losses occasioned by the
refusal of an employer, in violation of the statute, to
bargain with a union not recently under contract with the
particular employer as the bargaining representative of the
employees involved, has been, and is now, before the
Board and United States Courts of Appeals in a number of
cases, as follows.
The issue has been before the Board in three cases. In
each the Board has declined to order this type of remedy.
The cases are Preston Products Company, Inc., 158 NLRB
322, Saks and Co., 160 NLRB 682, and United Insurance
Co., 162 NLRB 439. In the Preston Products case the
matter was first raised before the Board and the request
was summarily denied as being "without merit." (Id., fn.
1.) In the Saks and United Insurance cases the issue was
raised before the Trial Examiners (Paul E. Weil and Harold
X. Summers, respectively), who refused to recommend
reimbursement orders, either on the ground that there was
no precedent for it, or that it would be based on
speculation as to the result of bargaining. The Board in
these two cases adopted the Examiners' Decisions without
comment as to the remedial issue. All three cases are
presently pending before various United States courts of
appeals: Preston and Saks before the Court of Appeals for
the District of Columbia and United Insurance before the
Court of Appeals for the Third Circuit.5
In addition, the issue is presented in four cases pending
before the Board at the present time: Ztnke's Foods, Case
30-CA-372, TXD-662-66, Trial Examiner Josephine
Klein; Kawneer Company, a Division of American Metal
Climax, Inc., Case 9-CA-3335, TXD-330-66 [164 NLRB
No. 138], Trial Examiner Sidney Asher; Herman Wilson
Lumber Company, Case 26-CA-2536, TXD-757-66,
Trial Examiner Thomas N. Kessel; and Ex-Cell-O Corp.,
Case 25-CA-2377, TXD-80-67, Trial Examiner Owsley
Vose.
In Zinke's Foods and in Ex-Cell-O Corp., Trial
Examiners Klein and Vose took evidence respecting the
remedial issue and, finding reimbursement orders
warranted by the record, recommended the issuance of
such orders by the Board. In the other cases presenting
the issue to the Board and the courts, there is no indication
that any evidential record was made providing a basis for
such a remedy.°
In the instant case no evidential record was made or
offered to support the propriety of the requested
reimbursement order. On the basis of the record before
me, I find no adequate foundation for recommending such
an order.
Though in some cases employees may properly and
feasibly be ordered made whole for losses occasioned by a
5I am informed that the Board has requested the court of
appeals to remand the Preston case to it for further consideration
In the United Insurance case the company has filed a motion to
transfer the proceedings to the Seventh Circuit.
6 In the United Insurance case the union offered in evidence a
collective - bargaining contract which it had made with a
predecessor employer as supporting the propriety of a
reimbursement order, but apparently offered no other evidence
The Trial Examiner rejected the evidence on the ground that he
regarded the Union's contention as speculative (162 NLRB
439, fn 65). The Board, without specific reference to that issue,
affirmed the Trial Examiner's rulings.
1054 DECISIONS OF NATIONAL
refusal to bargain (see, for example, Fibreboard Paper
Products Corp. v. N.L.R.B., 379 U.S. 203, 215, et seq., and
cases cited by Trial Examiner Vose in Ex-Cell-O Corp.,
supra), on the record here the fact and amount of losses
appear too speculative to warrant attempt at
ascertainment. Absent experiential presumption or
statistical or other evidence from which reasonable
inference of possible loss may flow, there is no basis in this
record for a make-whole order. Without more than we
have, it cannot be said, with sufficient certainty to warrant
a reimbursement order, that the Respondent and the
Union would probably have bargained to a contract
containing, without offsetting bargaining trades, monetary
benefits above the present scale. What the Board said in
the case of Chemrock Corporation, 151 NLRB 1074, 1082,
in another connection seems applicable: ". . .'. .' it is
speculative, and cannot be determined, what rate or rates
of pay might have governed ... had the Respondent
fulfilled its obligation to bargain. . . ." What the result
might be upon a different record it is unnecessary to
decide.
Upon the foregoing findings and conclusions and the
entire record in the case, I recommend that the Board
issue the following:
ORDER
Monroe Auto Equipment Company, Hartwell Division,
Hartwell, Georgia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, AFL-CIO, as the
exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit:
All production and maintenance employees of
Respondent at its Hartwell, Georgia, plant, including
inspectors, truckdrivers, leadmen, and temporarily laid-off
employees, but excluding factory administrative clerks,
quality control personnel, time-study personnel, technical-
experimental department employees, _ production
engineers, administrative personnel, office clerical
employees, permanently laid-off employees, watchmen,
and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent the employees in said appropriate unit as
the 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
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit described above, with
respect to rates of pay, wages, hours of work, and other
terms and conditions of employment, and embody in a
signed agreement any understanding reached.
(b) Post at its Hartwell, Georgia, plant copies of the
attached notice marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for Region
10, after being duly signed by an authorized
representative, shall 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
LABOR RELATIONS BOARD
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 the receipt of this Decision,
what steps have been taken to comply herewith.8
I 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 "
8 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps 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
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America,
UAW, AFL-CIO, as the exclusive bargaining
representative of all the following employees:
All production and maintenance employees at
our Hartwell, Georgia , plant, including
inspectors , truckdrivers , leadmen, and
temporarily laid-off employees , but excluding
factory administrative clerks, quality control
personnel, time-study personnel , technical-
experimental department employees , production
engineers , administrative personnel , office
clerical employees, permanently laid-off
employees , watchmen , and supervisors as
defined in the Act.
WE WILL NOT interfere with the efforts of said
Union to negotiate for or represent the employees in
said appropriate unit as the exclusive collective-
bargaining representative.
WE WILL bargain collectively with the Union as the
exclusive representative of the employees , and if an
understanding is reached we will sign a contract with
the Union.
MONROE AUTO EQUIPMENT
COMPANY, HARTWELL
DIVISION
(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 provisions, they may communicate
directly with the Board' s Regional Office, 730 Peachtree
Street, N.E., Atlanta, Georgia 30323, Telephone 526-5760.