Offenhauser Co.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 339 (N.L.R.B. 1969)

OFFENHAUSER COMPANY 339
Offenhauser Company and Sheet Metal Workers'
International Association , AFL-CIO, Local Union
54. Case 23-CA-3367
December 16, 1969
Upon the entire record in this case , the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a charge filed by Sheet Metal Workers'
International Association , AFL-CIO, Local Union
54, herein called the Union , the General Counsel of
the National Labor Relations Board, by the
Regional Director for Region 23, issued a complaint
dated September 15, 1969, ' against Offenhauser
Company, herein called the Respondent , alleging
that it had engaged in and was engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) 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 Respondent.
The complaint alleges, in substance , that on
March 24 the Union was duly certified by the Board
as the exclusive bargaining representative of the
Respondent ' s employees in the unit found
appropriate ,' and that , since on or about March 25,
the Respondent has refused and is refusing to
recognize or bargain with the Union as such
representative , although the Union has requested
and is requesting it so to do. On September 25, the
Respondent filed its answer to the complaint, in
which it admitted in part and denied in part the
allegations contained therein, raised an affirmative
defense, and requested that the complaint be
dismissed . On October 20 and on October 24,
respectively, the Respondent filed a First
Supplemental Answer and a Second Supplemental
Answer.
On October 13, the General Counsel filed with the
Board a Motion for Summary Judgment , alleging
that there are no factual or triable issues warranting
litigation in this proceeding , and requesting , in view
of the admissions contained in the Respondent's
Answer , that the Board enter an order on the
motion , making findings of fact and conclusions of
law as alleged in the complaint that the Respond. ..t
has violated Section 8(a)(5) and ( 1) of the Act, and
grant any such other and further relief as may be
just, equitable , and appropriate . On October 16, the
Respondent filed an Answer to Motion for
Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three -member panel.
All dates refer to 1969 unless otherwise indicated
'175 NLRB No 16
The Respondent's Answer to the Motion for
Summary Judgment is chiefly concerned with
alleged defects in the handling of the prior
representation proceeding.' In large measure, it
alleges that the Board dealt improperly with one of
the several objections filed to the conduct of the
election held on August 30, 1968. A brief
explanation of the development of the objection in
question is necessary to a proper understanding of
the issues involved.
During the preelection campaign, the Union
mailed to the Respondent's employees a letter,
which covered a legal-sized sheet of paper and dealt
with several topics. Following the election, the
Respondent filed seven objections, number five of
which read,
Union made a statement in its last letter to its
employees that "all of the employees in your
shop" can attend a special meeting and vote on
whether or not a strike will be called and that 2/3
of such employees would determine whether a
strike would be called. The above statement is
false and was made for the wrongfully [sic]
purpose of influencing votes.
At the hearing, the Respondent read into the record
that section of the Union's constitution governing
strike votes,4 and questioned Woodall, a union
organizer, regarding strike vote practice.
Following the hearing, in his Report on
Objections, the Hearing Officer recommended that
Objection 5 be overruled, statin'
Woodall testified that all employees of an
Employer, regardless of whether they are
members of the Petitioner, are allowed to
participate in a strike vote. Absent any evidence
that only members of the Petitioner are allowed
to participate in a strike vote whether for the
initial contract or succeeding contracts, it appears
that the statement relating to the strike vote
contained in Company Exhibit No. 1 [the letter]
is a true statement and is not misleading.
The Respondent excepted to the Hearing Officer's
findings of fact and rulings of law regarding
Objection 5, contending, in substance, that the
weight of the evidence compelled a contrary
'On November 10 the Respondent filed a motion to incorporate the
transcript of the hearing on Objections to Election That motion is hereby
granted
'That section reads "No cessation of work through strike or other ways
shall be permitted or ordered by a local union or any officer thereof unless
it is authorized and approved at a special meeting called for the purpose of
voting whether such strike is desirable or advisable Notice of the time and
place and the purpose of such meeting will be given to each member and
shall require a two thirds vote by secret ballot of all members present at
such meeting to legally declare a strike "
180 NLRB No. 74
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion regarding the participation of
nonmembers in strike votes. The Board's Decision
and Certification of Representative of March 24,
1969, adopted the Hearing Officer's
recommendation without comment with respect to
this objection.
On July 10, the Respondent filed a Motion to
Reopen the Record and for a Rehearing in which it
asked that it be allowed to develop certain newly
discovered evidence. This evidence, as stated in an
affidavit attached to the motion, allegedly indicated
that on June 155 certain employees had attended a
meeting at which a union agent (apparently
Woodall) had informed them that there would be a
strike on June 23 and that although "many
employees were there to exercise their right to vote
against the strike," no strike vote was taken at the
meeting. The affidavit further alleged that Otis
McDonald, union negotiating committeeman from
the shop, in a later company meeting, stated that a
strike vote had not been called on June 15 by
Woodall because there "were so many new faces in
the crowd," and because he (Woodall) was afraid
the strike would be voted down.
In its Order Denying Motions of September 5, the
Board declined to reopen the record or conduct a
rehearing on the alleged newly discovered evidence,
stating, inter alia, at p. 3,
The motion of July 10 and the supporting
statement fail to make clear whether a strike vote
had been scheduled for the meeting of June 15,
1969, whether a strike did in fact occur on June
23, 1969, or at any time thereafter, and, if so,
whether a strike vote, of all employees or of
members only, had been taken prior to such
strike. Moreover, insofar as the undated
statement refers to a further undated statement by
employee McDonald concerning Woodall' s reason
for failing to call a strike vote at the June 15
meeting, it is hearsay and an unsupported
statement of opinion.
In its Answer to the Motion for Summary
Judgment, the Respondent, apparently having
concluded from a reading of this Order Denying
Motions that the Board failed to appreciate the
possible relevance of the evidence offered, suggests
that this evidence would show that the Union
excludes members as well as non-mem '-°rs from
strike votes and thus that the original statement
regarding strike votes was entirely false, rather than
false as to non-members only. We find nothing in
this argument, however, which was not adequately
considered in making the Order Denying Motions of
September 5.6
'This date is referred to as June 17 in the Respondent's later motions
'The Respondent admits, in its Third Supplemental Motion to Reopen
the Record , filed on September 24, that the strike that had allegedly been
"set" for June 23 was called off, and that on July 2, pursuant to notice of
the time , place , and purpose of the meeting , the Union held a strike vote in
which a strike was voted down
The Respondent also contends in its Answer to
the Motion for Summary Judgment that the Board
erroneously characterized as hearsay the statement
by the signers of the affidavit as to what McDonald
had said regarding Woodall's reasons for not calling
a strike vote. The Respondent argues that since
McDonald was one of three Union shop
committeemen, he was an agent of the Union, that
his statements are not hearsay as to the Union, and
that the statement should be given its "full weight."
Assuming that McDonald was an agent of the
union , and that the evidence in question would
otherwise be admissible, we conclude, for the
reasons set forth in the Order Denying Motions,
that this evidence does not in any event establish a
misrepresentation sufficient to warrant the setting
aside of the election. Accordingly, it provides no
basis for denying the Motion for Summary
Judgment.
It is alleged in the Respondent's Answer to the
instant motion, as it was alleged previously in the
Second Supplemental Motion to Reopen the
Record, of August 11, the First Amended Third
Supplemental Motion to Reopen the Record, of
September 24, and in the Answer to the Complaint
in this proceeding, that on August 9,' the Union
commenced picketing activities without consulting
or taking a vote of Respondent's employees. This
fact, it is argued, shows that the Union's statement
in the original preelection letter that, "No one else
can vote on any issue in your shop but the
employees in your shop," was a material
misrepresentation. The implication of this statement,
the Respondent argues, was that the employees "can
determine the matters which affect their shop," and
that this may be done "without the interference
from the Union." Yet the statement quoted above
from the Union's letter was not made a part of the
Respondent's objections to the election or its
exceptions to the Hearing Officer's report. Thus, an
objection made on August 11 to this statement
comes untimely.e Moreover, we find that the
statement was made in the context of an explanation
of strike vote eligibility, that the implication of the
statement asserted by the Respondent is
unwarranted, and that, whatever meaning one can
find in the quoted statement, the later posting of a
picket does not make it a material misrepresentation
which would warrant setting aside the election.
Accordingly, we find no basis in this argument for
denying the Motion for Summary Judgment.'
'The August I I motion refers to this date as August 8
'See Rules and Regulations and Statements of Procedure , Section
102 69
'A similar argument is made by the Respondent in its Fourth and Fifth
Supplemental Motions to Reopen the Record, and in its First and Second
Supplemental Answers to the complaint , wherein it is alleged that the
Union again began picketing the Respondent on October 8 without
consulting or taking a vote of the employees Likewise , in its Third
Amended Supplemental Motion to Reopen the Record, the Respondent
alleges that on September 15 the Union began mailing letters to customers
of the Respondent requesting them to cease doing business with
OFFENHAUSER COMPANY
Finally, the Answer to the Motion for Summary
Judgment alleges certain other more general defects
in the representation proceeding as reason why the
Board should set aside the election or order a
hearing . We find no merit in any of these
contentions.
The General Counsel submits, in its Motion for
Summary Judgment, that there are no further
factual or triable issues warranting litigation in this
proceeding. In view of the above discussion, and in
view of the admissions contained in the
Respondent's Answer to the Complaint, we agree.
Accordingly, the General Counsel's Motion for
Summary Judgment is hereby granted.
On the basis of the record before it, including the
General Counsel ' s motion and the Respondent's
answer thereto, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material
herein has been, a corporation with its principal
office and place of business at Houston, Texas, and
is engaged in the business of job shop fabrication.
During the 12 months preceding the issuance of the
complaint herein, Respondent purchased and had
delivered to its Houston, Texas, facility, goods and
materials valued in excess of $ 50,000 , which were
shipped directly to the Houston, Texas, facility from
suppliers in States other than the State of Texas.
The Respondent admits, and we find, that it is,
and at all times material herein has been, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association,
AFL-CIO, Local Union 54, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
At all times material herein, the following
employees have constituted and now constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of the Act:
All production and maintenance employees,
including production control employees and
truckdrivers , at the Respondent ' s Houston , Texas,
Respondent, and that this was also done without consulting the employees.
The First Amended Third and the Fourth Amended Supplemental Motions
to Reopen the Record have previously been denied . (See Order Denying
Motions of October 22.) We hereby deny, for the same reasons as set forth
above , the Fifth Supplemental Motion to Reopen the Record . In addition,
we find that the First and Second Supplemental Answers to the Complaint
raise no issues warranting a hearing in this proceeding.
341
facility, excluding all office clerical employees,
inspectors , draftsmen , professional engineers,
watchmen , guards and supervisors as defined in
the Act.
B. The Request to Bargain and Respondent's
Refusal
A majority of the employees of the Respondent in
said unit having designated the Union as their
representative for the purposes of collective
bargaining with Respondent, the Board duly
certified the Union as the exclusive bargaining
representative of the employees in said unit, and the
Union continues to be such representative. We find
that the Union at all times since March 24, 1969,
has been and is now the exclusive bargaining
representative of all the employees in the
appropriate unit described above, within the
meaning of Section 9(a) of the Act; that the Union
requested and is continuing to request the
Respondent to bargain collectively with it as the
exclusive bargaining representative of all the
employees in the appropriate unit; that the
Respondent has, since March 25, 1969, refused to
bargain collectively with the Union as such
representative; and that, 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 its
operations 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.
V. THE REMEDY
Having found that 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, we
shall order that it cease and desist therefrom, and
upon request, bargain collectively with the Union as
the exclusive representative of all the employees in
the appropriate unit and, if an understanding is
reached, embody such an understanding in a signed
agreement.
In order 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, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative in the appropriate unit . See Maniac
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).
CONCLUSIONS OF LAW
1. Offenhauser Company is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Sheet Metal Workers' International
Association , AFL-CIO, Local Union 54 is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees,
including production control employees and
truckdrivers, at the Respondent's 'Houston , Texas,
facility, excluding all office clerical employees,
inspectors , draftsmen , professional engineers,
watchmen , guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since March 24, 1969, the above - named labor
organization has been and is the exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing , on or about March 25, and at all
times thereafter , to bargain collectively with the
above-named labor organization as the exclusive
representative of all its employees in the appropriate
unit , the 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, the
Respondent has interfered with , restrained, and
coerced , and is interfering with , restraining, and
coercing , employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and has
thereby engaged in and is engaging 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
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Offenhauser Company, Houston, Texas, its 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
conditions of employment with Sheet Metal
Workers ' International Association , AFL-CIO,
Local Union 54, as the exclusive and duly certified
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees,
including production control employees and
truckdrivers , at the Respondent ' s Houston , Texas,
facility, excluding all office clerical employees,
inspectors , draftsmen , professional engineers,
watchmen , 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
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
understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its Houston , Texas, facility , copies of
the attached notice marked "Appendix ."" Copies of
said notice , on forms provided by the Regional
Director for Region 23, after being duly signed by
the Respondent 's 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 the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing , within 10 days from the date of this
Decision and 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
Sheet Metal Workers ' International Association,
AFL-CIO , Local Union 54, as the exclusive bargaining
representative of the employees in the bargaining 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 Section 7 of the Act.
"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 read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
OFFENHAUSER COMPANY
WE WILL, upon request, bargain with the
above-named Union as the exclusive representative of
all employees in the bargaining unit described below
with respect 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 agreement . The bargaining unit is:
All production and maintenance employees, including
production control employees and truckdrivers, at the
Respondent's Houston, Texas, facility, excluding all
office clerical employees, inspectors, draftsmen,
professional engineers, watchmen, guards, and
supervisors as defined in the Act.
Dated By
343
OFFENHAUSER COMPANY
(Employer)
(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,
6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas 77002, Telephone 713-226-4296.