O. S. Walker Co., Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1972

195 N.L.R.B. 1027 (N.L.R.B. 1972)

O. S.WALKER COMPANY 1027
O. S. Walker Company , Inc. and United Steelworkers
of America, AFL-CIO. Case 1-CA-7956
March 24, 1972
DECISION AND ORDER
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 au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the Board
makes the following:
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on November 10, 1971, by the
United Steelworkers of America, AFL-CIO, herein
called the Union, and duly served on O. S. Walker
Company, Inc., herein called the Respondent, the Gen-
eral Counsel of the National Labor Relations Board, by
the Regional Director for Region 1, issued-a complaint
on December 10, 1971, 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 parctices, the com-
plaint alleges in substance that on October 28, 1971,
following a Board election in Case 1-RC-11,565, 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 3, 1971, 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
January 10, 1972, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On January 14, 1972, counsel for the General Coun-
sel filed directly with the Board a Motion for Summary
Judgment. Subsequently, on January 21, 1972, the
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.
' Official notice is taken of the record in the representation proceeding,
Case I-RC-11,565, 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 Electrosysteme 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
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
The Respondent's answer in response to the Notice
To Show Cause put in issue the validity of the Union's
certification and its status as the exclusive representa-
tive of the unit employees. In particular the Respond-
ent contends that material misrepresentations by the
Union present issues on which evidence should be
heard and warrant setting aside the election held in the
representation proceeding.
On June 15, 1971, pursuant to a Stipulation for Cer-
tification Upon Consent Election, an election was held
in which 24 ballots were cast for the Union, 20 against,
and 3 were challenged, a number not sufficient to affect
the results of the election. The Respondent subse-
quently filed objections to the conduct affecting the
results of the election alleging that the Union had made
material representations with regard to wages, the Re-
spondent's pension plan, and its insurance benefits.
Upon conducting an investigation, the Regional Direc-
tor issued a Report on Objections on July 23, 1971, in
which he recommended that the objections be over-
ruled and the Union certified. The Regional Director
found that the statements concerning wages were not
material misrepresentations, and that the Respondent
had replied to them effectively. He found any misrepre-
sentation concerning the Respondent's pension plan
was too insubstantial to warrant setting aside an elec-
tion in that the employees could be expected to have as
much knowledge as the Union and further that the
Respondent had informed them of the true facts. Fi-
nally, the Regional Director found the employees had
enough information about the insurance benefits to
evaluate the Union's statements for themselves.
The Respondent filed timely exceptions to the report,
reiterating its arguments concerning the Union's mis-
representations about the pension plan and insurance
benefits, that the misrepresentations were material, and
that the employees were not able to evaluate them effec-
tively. On October 28, 1971, the Board issued its Deci-
sion and Certification of Representative, finding that
the Respondent's exceptions raised no issues warrant-
ing reversal of the Regional Director's findings and
recommendations, and certifying the Union.
195 NLRB No. 180
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that in the absence of newly discov-
erea 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.2
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.'
We shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Massachusetts corporation en-
gaged in the manufacture, sale, and distribution of
magnetic devices and related products which maintains
its principal office and place of business at Rockdale
Street, Worcester, Massachusetts. In the course of its
business the Respondent uses large quantities of raw
materials purchased from outside the Commonwealth
of Massachusetts and transported in interstate com-
merce. The Respondent also sells and transports mag-
netic devices, valued in excess of $50,000, to points
outside the Commonwealth of Massachusetts.
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
United Steelworkers of America, AFL-CIO , is a la-
bor organization within the meaning of Section 2(5) of
the Act.
' See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
' In its answer, the Respondent contends that as a matter of due process
it is entitled to a hearing on the issues raised by its objections to the election
and exceptions to the Regional Director's report. A hearing is required only
where the evidence presented raises substantial and material issues of fact.
Janler Plastic Mold Corporation, 191 NLRB No. 24; Lipman Motors, Inc.,
187 NLRB No. 36; Crest Leather Manufacturing Corporation, 167 NLRB
1085, 1086, fn. 1 (1967), and cases cited therein. As stated above, the Board
has already determined that no such issues are presented by the evidence
relied on here.
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 production and maintenance employees em-
ployed by the Respondent at its Rockdale Street,
Worcester, Massachusetts, location including
leadmen, electronic technicians, janitors and ship-
pers-receivers, excluding office clerical employees,
professional employees, guards and supervisors as
define in the Act.
2. The certification
On June 16, 1971, 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 1, pursuant to a Stipulation for Certification
Upon Consent Election, designated the Union as their
representative 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 October 28, 1971, 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 October 28, 1971, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about November 3, 1971, 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
October 28, 1971, 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 the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
O S.WALKER COMPANY 1029
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. O. S. Walker Company, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees em-
ployed by the Respondent at its Rockdale Street,
Worcester, Massachusetts, location including leadmen,
electronic technicians , janitors and shippers -receivers,
excluding office clerical employees , professional em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since October 28 , 1971, 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 3, 1971, 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.
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 O. S. Walker
Company, Inc., its officers, agents, successors , and as-
signs, 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 United Steelworkers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at its Rockdale Street,
Worcester , Massachusetts, location including
leadmen, electronic technicians , janitors and ship-
pers-receivers, excluding officer clerical em-
ployees, 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 exercise of the
rights guaranteed 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 Rockdale Street , Worcester, Massa-
chusetts , location , copies of the attached notice marked
"Appendix ."" Copies of said notice, on forms provided
by the Regional Director for Region 1, after being duly
signed by Respondent 's representative , shall be posted
° 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
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices 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 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APENDIX
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 United
Steelworkers of America, AFL-CIO, as the exclu-
sive 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 production and maintenance em-
ployees employed by the Respondent at its
Rockdale Street, Worcester, Massachusetts,
location including leadmen, electronic tech-
nicians, janitors and shippers-receivers, ex-
cluding office clerical employees, professional
employees, guards and supervisors as defined
in the Act.
O. S. WALKER
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 7th Floor, Bulfinch Building, 15 New Chardon
Street, Boston, Massachusetts 02114, Telephone 617-
223-3300.