Olson Bodies, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1968

170 N.L.R.B. 1729 (N.L.R.B. 1968)

OLSON BODIES, INC. 1729
Olson Bodies, Inc.,, Formerly Grumman Allied In-
dustries , Inc. and International Union , United Au-
tomobile Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO. Case
3-CA-3245
April 23, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 6, 1967, Trial Examiner Charles
W. Schneider issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative, action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
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
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 Deci-
sion , the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclu-
sions, 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 Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Olson Bodies, Inc., for-
merly Grumman Allied Industries, Inc., Athens,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
representative filed by International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO,
herein called the Union, and after a hearing before
a duly designated hearing officer, the Regional
Director for Region 3 of the Board on January 16,
1967, issued a Decision and Direction of Election
in which he found, contrary to the contention of
the Employer, that the production and maintenance
employees at the truck manufacturing plant in
Athens, New York, of Grumman Allied Industries,
Inc., the Employer, constituted an appropriate bar-
gaining unit. The Employer had urged as ap-
propriate a unit including, additionally, truck
manufacturing plants of the Employer in Sturgis,
Michigan, and Sherman, Texas, and its foundry in
Athens.
On February 9, 1967, the Board denied the Em-
ployer's request for review of the Regional
Director's Decision and Direction of Election on
the ground that it raised no substantial issues war-
ranting review.
Pursuant to the Decision and Direction of Elec-
tion, an election by secret ballot was conducted on
February 17, 1967, under the direction and super-
vision of the Regional Director for Region 3. The
Union received a majority of the valid votes cast.
Olson Bodies, Inc., formerly Grumman Allied In-
dustries, Inc., herein called the Respondent, filed
timely objections to the conduct of the election,
and to conduct affecting the results of the election.
A challenge to the ballot of one William Davenport
being determinative of the election, the Regional
Director investigated the challenge and the objec-
tions.
On April 14, 1967, the Regional Director issued
a Supplemental Decision and Certification of
Representative in which he found that the Respon-
dent's objections raised no substantial or material
factual issues with respect to the conduct of the
election, and overruled said objections. He further
sustained the challenge to the ballot of Davenport
and certified the Union as the bargaining represen-
tative under the Act, Thereafter, ' the Employer's
request for review of the Regional Director's Sup-
plemental Decision and Certification of Represen-
tative was denied by direction of the Board on May
23, 1967, as raising no substantial issues warranting
review.
The Complaint Case
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER , Trial Examiner: Upon
petition for certification as collective -bargaining
' In accordance with the General Counsel's request, administrative or of-
ficial notice is taken of the representation proceeding, Case 3-RC-4023
See Section 9(d) of the National Labor Relations Act
On June 13, 1967, the Union filed the unfair
labor practice charge, and on July 18, 1967, the
amended unfair labor practice charge, involved in
the instant case, in which charges it was alleged
that since on or about June 9, 1967, and at all times
thereafter, the Respondent has -refused and con-
tinues to refuse to bargain with the Union. -
170 NLRB No. 34
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 27, 1967, the General Counsel by the
Regional Director of Region 3 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 then Respondent
filed its answer to the complaint in which, inter alia,
it admitted allegations of the complaint with
respect to jurisdiction, but denied thel appropriate-
ness of the unit, the validity of the election and the
certification, the asserted request of the Union to
bargain, and the Respondent's refusal
On August 17, 1967, Counsel for ie General
Counsel filed a motion for summary judgment and
issuance of Trial Examiner's Decision, and argu-
ment in support of said motion, 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 August 25,
1967, counsel for the Union filed a joinder in such
motion.
In the meantime, on August 22', 1967, I issued an
Order to Show Cause on General Counsel's motion
for summary judgment, in which the parties were
directed to show cause on or before September 7,
1967, as to whether or not the motion for summary
judgment should be granted. The Respondent has
filed a response to General Counsel's motion for
summary judgment. -
Thereafter, under date of November 7, 1967,
counsel for the General Counsel filed a motion to
withdraw his motion for summary judgment on the
ground that the Union has filed additional charges
against the Respondent alleging violations of Sec-
tion 8(a)(1),, (3), and (5) of the Act. (Case
3-CA-3226.) Upon an Order to Show Cause why
such motion should not be granted, the Union on
November 20, 1967, filed an objection to the
requested withdrawal. No responses to this Order
to Show Cause were filed by the General Counsel
or the Respondent.
The objection of the Union asserts that there is
no issue to be tried before , a Trial Examiner, that
the facts establish that the Respondent has refused
to bargain collectively , and that therefore the mo-
tion for summary judgment, in which the Union had
joined, should be granted.
Review of the record establishes the contentions
of the Union . Under such circumstances the mere
filing of additional charges of unfair labor practices
by the Union against the Respondent does not ipso
facto constitute adequate ground for the Trial Ex-
aminer to decline to make findings of -established
unfair labor practices. The General CounseI's mo-
tion to withdraw the motion for summary judgment
is therefore denied.
Ruling on Motion for Summary Judgment
The Respondent opposes the motion for summa-
ry judgment. The Respondent raises -the following
defenses: (1) that it is entitled to a hearing on an
unfair labor practice complaint as a matter of right,
and that'in any event the Board's published rules do
not provide for summary judgment; (2) that the
certification is invalid because of various erroneous
factual and legal determinations by the .Regional
Director in the representation case. and the Re-
gional Director's improper denial of a hearing to
the Respondent on material factual issues.'
It is clear that all material issues of fact and law
as to jurisdiction, the appropriateness and composi-
tion of the unit , voter eligibility, the validity of the
election and the certification, and the merit of -the
Respondent's contentions in those respects have al-
ready been decided by the Regional Director or the
Board. Copies of correspondence attached to the
General Counsel's motion for summary judgment,
the authenticity of which is not challenged by the
Respondent, establish that in letters to the Respon-
dent dated April 28 and June 1, 1967, the Union
requested the Respondent to meet with it for the
purposes of collective bargaining, and that on May
8 and June 9, 1967, the Respondent by letter
declined the Union's requests on the ground that
the Decision and Direction of Election, the Supple-
mental Decision and Certification of Representa-
tive, and the Board's denial of the Respondent's
requests for review were invalid.'
It is established Board policy, in the absence of
newly discovered or previously - unavailable
evidence or special circumstances, 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.'
No newly discovered or previously unavailable
evidence is offered here by the Respondent, nor has
it established the existence of special'circumstances
warranting reexamination of the previous deter-
minations . It being established that the Union is the
2In connection with its opposition to the motion for summary judgment
the Respondent also filed a motion moving the Trial Examiner to recom-
mend to the Board in his Decision that the Board reopen the representation
case (3-RC-4023 ) and consolidate it with the present unfair labor practice
case (3-CA-3245) Administrative or official notice has been taken of the
representation proceeding -Consolidation is therefore unnecessary Since
the Respondent 's motion states that the Respondent has simultaneously
filed a similar motion with the Board , the motion to the Trial Examiner is
unnecessary to bring the matter to the Board's attention
' The Respondent in its response to the motion for summary judgment
denies the authority of the Trial Examiner to require the Respondent to
admit or deny the authenticity of correspondence attached to the General
Counsel's motion. However, Respondent has not denied their authenticity,
although specifically requested in the Orden to Show Cause to indicate
whether it did so Under such circumstancesluthenticity is deemed to be
established Banco Cred,toYAliorroPonceno, 167 NLRB 397, fn 2
4 Mi cojnb Pottery Company, 157, N LRB 1616, enfd 376 F 2d 450
(C A 7, 1967), Honard Johnson company, 164 NLRB 801, Metropolitan
Life-Insurance Company, 163 NLRB 579 see Putsurgh Plate Glass Co %.
N L .R B , 313 U S 146, 162 ( 1941), Sections , I02,67( f) and 102.69(c) of
the Board 's Rules and Regulations , Series ,8, as amended ( revised January
1,1965)
OLSON BODIES, INC. 1731
certified bargaining representative and that the
Respondent has refused to bargain with it, there are
no issues litigable before me or to be resolved by
hearing. In such circumstances no hearing is
required.
Where there are no material issues to be resolved
there is no requirement for an evidential hearing
and summary judgment or judgment on the
pleadings is authorized and appropriate. As the
Board said in the case of Clement-Blythe Compa-
nies, 168 NLRB 118:
In its statement in opposition to the General
Counsel's Motion [for Summary Judgment],
Respondent contends that it is entitled to an
evidentiary hearing as a matter of right, and,
alternatively, that it is entitled to a hearing, at
least in the circumstances of this case. We find
these contentions without merit.
Respondent is not entitled to a hearing as a
matter of right. Where no litigable issues are
raised, the Board may entertain and rule upon
motions for judgment on the pleadings or mo-
tions for summary judgment .... Such a mo-
tion may be made at any time prior to hearing,
during a hearing, or following hearing, so long
as made before the issuance of a decision by a
duly-appointed Trial Examiner.
Respondent's contrary contention was recently and
specifically" rejected by the court of appeals in the
case of N.L.R.B. v. Tennessee Packers, Inc., 379
F.2d 172, 179 (C.A. 6, 1967). There the court said:
Respondent also claims that it was unlaw-
fully denied a hearing on these same issues in
the unfair labor practice charge under direct
review herein. Section 160(b), Title 29 U.S.C.
provides: -
"... The person so- complained of shall
have the right to file an answer to- the
original or amended complaint and to ap-
pear in person or otherwise and give
testimony at'the place and time fixed in
the-complaint."
This requirement, respondent argues, has not
been met because it was not permitted to
relitigate its objections- previously considered
by the Board in the certification proceedings.
However, it is a well established principle of
law that the Board is bound by its own prior
determinations in representation -proceedings,
and is not required to grant a hearing on
representational issues ancillary to an unfair
labor practice charge, unless the party
requesting such a hearing has some newly
discovered evidence. Pittsburgh Plate Glass Co.
v. N.L.R.B., 313 U.S. 146, ... rehearing de-
nied, 313 U.S. 599. . N.L.R.B. v. National
Survey Service, Inc., [361 F.2d 199 (:C.A. 7)];
N.L.R.B. v. B. H. Hadley, Inc., 322 F.2d 281
(C.A. 9). A party, in the absence of newly
discovered evidence, is entitled to only one op-
portunity to question the Board's certification
procedures. To require that the Board reopen
and reconsider a matter that was subject to
prior consideration would unnecessarily pro-
long the controversy, and prevent the orderly
settlement of labor disputes. Not having
presented any newly discovered evidence, the
Board was not required, in the present unfair
labor practice proceedings, to grant respon-
dent a hearing on its objections to the certifica-
tion procedures.
To substantially the same effect is N.L.R.B. v.
Worchester Woolen Mills Corp., 170 F.2d 13, 16
(C.A. 1, 1948), where the court said:
an issue covered and decided in unit
proceedings cannot as of right be relitigated in
a subsequent unfair labor practice proceeding.
If such an issue is to be relitigated in an unfair
labor practice proceeding once it has been
canvassed in a certification proceeding it is up
to the party desiring to do so to indicate in
some affirmative way that the evidence offered
is more than cumulative. Otherwise a single
trial of the issue is enough. ...5
This policy is applicable even though no formal
hearing on objections has been provided by the
Board in the representation proceeding. Such a
hearing is not a matter of right unless substantial
and material issues are raised.' The cases cited by
the Respondent (N.L.R.B. v. KVP Sutherland Paper
Co., 356 F.2d 671-(C.A. 6, 1966), and N.L.R.B. v.
Bata Shoe Co., 377 F,2d 821 (C.A. 4)) do not
negate this proposition. They merely hold that
where there are substantial and material issues a
hearing is required.
In these circumstances the prior findings of the
Board constitute, at this "stage of the proceeding,
the, law of the case.-There are thus no issues litiga-
ble before me or to be resolved by, -hearing and
summary judgment is therefore appropriate and en-
tered.
s See also NeuhoffBrothers , Packers , Inc, v . N LR B ., 362 F 2d 611, 613
(C A 5, 1966 ), Macomb Pottery Company, 157,NLRB 1616; enfd 376
F 2d 450 (C A 7, 1967), Krieger-Ragsdale & Company, " Inc, 159 NLRB
490, and cases there cited, enfd 379 F 2d 517 (C A 7, 1967), N L R B v
Laurence Typographical Union , 376 F.2d 643, 651 (C A. 10, 1967), E-Z
Davies Chevrolet, 161 NLRB 1380, Union Brothers , Inc, 162 NLRB 1505,
and cases there cited; Metropolitan Life Insurance Co , 163 NLRB 579,
Red-More Corporation dlbla Disco Fair , 164 NLRB 638, Harry T. Campbell
Sons' Corporation, 164 NLRB,247, Ore-Ida Foods, Inc., 164 NLRB 438,
Continental Nut Co, 164 NLRB 508 /
8 O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A.
5,1961) And see N L R B v Air Control Products, Inc , 335E 2d 245,249
(C A 5, 1964), "If there is nothing to hear, then a hearing , is a senseless
and useless formality-" See also N.L R B v, Bata Shoe-Co , Inc.-, 377 F 2d
821,826(C A 4,1967)
350-999 0 - 71 - 111
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the record established, I make the
following further findings:
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation engaged
in the manufacture of truck bodies at plants in
Athens, New York; Sherman, Texas; and Sturgis,
Michigan. The Respondent annually purchases and
transports to each of these plants in excess of
$50,000 worth of goods and materials from outside
the respective States.
The 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
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 PRACTICES
The following employees of Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act:
All production and maintenance employees
employed at the Employer's Athens, New
York, truck manufacturing plant, excluding of-
fice clerical employees, professional em-
ployees, guards, and supervisors as defined in
the-Act.
On February 17, 1967, a majority of Respon-
dent's employees in the appropriate unit selected
the Union as their collective-bargaining representa-
tive in a secret-ballot election conducted under the
supervision of the Regional Director of Region 3 of
the National Labor Relations Board.
On April 14, 1967,- the Regional Director, pur-
suant to authority vested in him by the National
Labor Relations Board, after consideration of the
Respondent's objections to the above-described
election, certified the Union as the exclusive collec-
tive-bargaining agent of the employees in the said
unit.
At all times since on or about April 14, 1967,
and continuously to the -present, the Union has
been the representative for the purpose of collec-
tive 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 condi-
tions of employment.
' The purpose of this provision is to ensure that the employees in the ap-
propriate unit will be accorded the statutorily prescribed services of their
selected bargaining agent for the period provided bylaw See Mar-Jac
On -April 28 and June 1, 1967, 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 em-
ployment, as the collective-bargaining representa-
tive of Respondent's employees in the appropriate
unit.
On May 8 and June 9, 1967, 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 com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings and conclusions and
the entire record in the case, I recommend that the
Board issue the following.
ORDER
A. For purposes of determining the_ effective
period of 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 bar-
gaining representative in the appropriate unit.'
B. Olson Bodies , Inc., formerly Grumman Allied
Industries , Inc., Athens , New York, its. officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) -Refusing to bargain collectively with Interna-
tional Union , United Automobile , Aerospace and
Agricultural Implement Workers of America
(UAW), AFL-CIO, as the exclusive collective-bar-
gaining representative of the employees in the fol-
lowing appropriate bargaining unit:
All production and maintenance employees
employed at the Employer 's Athens, New
York, truck manufacturing plant, excluding of-
fice clerical employees , professional em-
ployees, guards, and supervisors as defined in
the Act.
(b) Interfering with the efforts, of said Union to
negotiate for or represent the employees in. said ap-
propriate-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 In-
ternational Union , United Automobile , Aerospace
and Agricultural Implement Workers of America
(UAW), AFL-CIO, as the exclusive representative
Poultry Co , Inc , 136 NLRB 785; Comnterce'Co d/b/a Lamar Hotel, 140
NLRB 226, 229, enfd 328 F 2d 600 (C.A 5, 1964), Burnett Construction
Co , 149 NLRB `1419, 1421, enfd 350 F 2d 57 (C A 10, 1965)
OLSON BODIES , INC. 1733
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 employ-
ment, and embody in a signed agreement any un-
derstanding reached.
(b) Post at its Athens, New York, truck manu-
facturing plant copies of the attached notice
marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for Region 3,
after being duly signed by an authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees 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 3, in
writing, within 20 days from the receipt of this
Decision, what steps have been -taken to comply
herewith.'
8 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
9 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 3, 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 Na-
tional 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 Wor-
kers of America (UAW), AFL-CIO, as the ex-
clusive bargaining representative of all the fol-
lowing employees:
All production and maintenance em-
ployees employed at our Athens, New
York, truck manufacturing plant, exclud-
ing office clerical employees, professional
employees, guards, and supervisiors as
defined in the Act.
WE WILL NOT interfere with the efforts of
said Union to negotiate for or represent the
employees in the appropriate unit as the exclu-
sive collective-bargaining representative.
WE WILL bargain collectively with the Union
as the exclusive representative of the em-
ployees, and if an understanding is reached we
will sign a contract with the Union.
OLSON BODIES, INC.,
FORMERLY GRUMMAN
ALLIED INDUSTRIES, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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, 4th Floor, The 120 Building , 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
842-3112.