Olson Bodies, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 23, 1968170 N.L.R.B. 1729 (N.L.R.B. 1968) Copy Citation 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. Copy with citationCopy as parenthetical citation