Penfield Plumbing and Heating, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1970

181 N.L.R.B. 914 (N.L.R.B. 1970)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penfield Plumbing and Heating , Inc. and UA, Local
13, United Association of Journeymen and
Apprentices of the Plumbing and Steamfitting
Industry of the United States and Canada,
AFL-CIO. Case 3-CA-3869
Union, the Respondent contending that the Union
engaged in pre-election conduct violative of the Board's
rules and that therefore the election and the Union's
certification based thereon are null and void
The Representation Proceeding'
April 3, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On December 30, 1969, 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 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
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 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
this 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 hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Penfield Plumbing and
Heating, Inc., East Rochester, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
'With respect to Respondent 's contention relating to the Excelsior issue,
see Bishop-Hansel Ford Sales, Inc, 180 NLRB No 176
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W SCHNEIDER, Trial Examiner The case
arises on a Motion for Summary Judgment filed by
Counsel for the General Counsel upon an admitted refusal
by the Respondent to bargain with the certified charging
Upon a petition filed under Section 9(c) of the National
Labor Relations Act (29 U.S.C.A. 159(c)) on April 30,
1969, by UA Local 13, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO, herein called
the Union, the Union and Penfield Plumbing and Heating,
Inc , the Respondent herein, entered into a Stipulation for
Certification Upon Consent Election on May 7, 1969,
which was approved by the Regional Director of Region 3
of the Board on May 12, 1969.
Pursuant to the stipulation, an election in an
appropriate bargaining unit, described hereinafter, was
held on May 27, 1969, under the direction and supervision
of the Regional Director to determine the question of
representation Upon conclusion of the election the parties
were furnished a tally of the ballots which showed that of
approximately 26 eligible voters, 15 cast ballots for the
Union, I I against, and no ballots were challenged
On June 2, 1969, the Respondent filed timely objections
to the election and to conduct affecting the results of the
election, alleging, in substance, the following
1. That a business agent for the Union engaged in
pre-election conduct violative of the Board's rules by
purposely seeking out and approaching an employee
who was dust entering the voting area to cast his ballot,
and engaging in conversation with said employee.
2. That the Board required the Employer to furnish,
under protest, an Excelsior list prior to the election, in
violation of the decision of the Supreme Court in
NLRB v Wyman-Gordon Co, 394 U S 759 (1969)
In conclusion the Respondent requested that the
election be set aside and a new election ordered No
request was made in the objections for a hearing thereon
On June 19, 1969, the Regional Director issued a
Report on Objections, in which, after a recitation of
evidence, the Regional Director found the Respondent's
objections to the election not to be sustained He
accordingly recommended that the objections be overruled
and that the Union be certified as the
collective-bargaining representative of the employees in
the appropriate unit Specifically the Regional Director
ruled, with respect to the first objection, that there was no
evidence of electioneering or that the statements made to
the employee were coercive As to the second objection
the Regional Director ruled that the Board proceeding
was an adjudicatory one within the meaning of the
Wyman-Gordon case
On July 7, 1969, the Respondent filed with the Board in
Washington, D.C , Exceptions to Regional Director's
Report on Objections and a Memorandum In Support
'Administrative or official notice is taken of the record in the
representation proceeding, Case 3-RC-4660, as the term "record" is
defined in Section 102 68 and 102 69(f) of the Board's rules (Rules and
Regulations and Statements of Procedure, National Labor Relations
Board, Series 8 as amended ) See LTV Electrosystems, 166 NLRB No 81,
enfd 388 F 2d 683 (C A 4), Golden Age Beverage Co, 167 NLRB No
24, enfd 415 F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp , 573
(D C Va 1967), Intertype Co v N L R B. 401 F 2d 41 (C A 4), Follett
Corp , et al, 164 NLRB No 47, enfd 397 F 2d 91 (C A 7), Section 9(d)
of the National Labor Relations Act
181 NLRB No 152
PENFIELD PLUMBING AND HEATING, INC. 915
thereof, stating in substance that the Regional Director
erred in his findings and recommendations concerning the
Respondent's objections. The Respondent therefore urged
that the election held on May 27, 1969, was null and void
and that, therefore, the Board must order a second
election to determine the representative status of the
Union.
On. August 18, 1969, the Board issued a Decision and
Certification of Representative in which, after
consideration of the Regional Director's Report, the
Respondent's exceptions and the entire record, the Board
adopted the - Regional Director's findings and
recommendations, and certified the Union as the
bargaining representative z
The Unfair Labor Practice Case
On September 2, 1969, the Union filed the instant
unfair labor practice charge alleging that since the
certification the Respondent had refused and continues to
refuse to bargain with the Union. .
On September 30, 1969, the Regional Director issued a
Complaint alleging that the Respondent had committed
unfair labor practices in violation of Sections 8(a)(1) and
(5) and 2(6) and (7) of the Act by refusing to bargain with
the Union upon request.
On October 13, 1969, the Respondent filed its Answer
in which it admitted most of the material allegations of
the complaint but denied others and denied the
commission of unfair labor practices. As affirmative
defenses the answer reiterated the Respondent's objections
to the election.
On November 10, 1969, Counsel for the General
Counsel filed a Motion for Summary Judgment and
Issuance of Trial Examiner's Decision, and Argument in
Support thereof, on the ground that the Respondent's
Answer does not allege newly discovered evidence nor
contend that such evidence exists which would justify
relitigation of the matters and issues raised and
determined in the prior representation proceedings, or
require hearing.
On November 17, 1969, 1 issued an Order to Show
Cause on the Motion for Summary Judgment returnable
December 1, 1969, and subsequently extended to
December 8, 1969. On December 8, 1969, the Respondent
filed a Brief in Opposition to Motion for Summary
Judgment, which has been considered No responses have
been received from the other parties
Ruling on Motion for Summary Judgment
The Respondent opposes the motion for summary
judgment on the same grounds stated in its objections to
the election, in its exceptions to the 'Regional Director's
Report, and in its answer. The Respondent thus merely
reiterates issues and argument previously considered and
decided by the Board in the representation proceeding
The Respondent further states that the Board did not fully
consider the issues raised by the denials and affirmative
defenses in the Answer This contention I find not to be
sustained, the Board having certified in its Decision that it
had considered the Respondent's exceptions and the entire
record in the case.
With respect to the Respondent ' s exceptions , the Board stated that they
raised "no material or substantial issues of fact or law which would
warrant a reversal of the Regional Director's findings and recommendation
or would require the holding of a hearing " (fn 1)
It is established Board policy in 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 ' This policy is applicable even
though no formal hearing on objections has been provided
by the Board Such a hearing is not a matter of right
unless substantial or material issues are raised.'
Respondent does not claim to present any newly
discovered or previously unavailable evidence or special
circumstances In these circumstances the Board's
Decision is, at this point, the law of the case, subject to
possible further review by the Board and the Court of
Appeals.
The Respondent's Answer and its Brief in Opposition
to Motion for Summary Judgment admit the essential
allegations of the complaint There thus being no
unresolved matters requiring an evidentiary hearing the
Motion of Counsel for the General Counsel for Summary
Judgment and Issuance of Trial Examiner's Decision is
granted.
Upon the basis of the record before me, I make the
following further
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of New York.
At all times material herein, Respondent has
maintained its principal office and place of business at 533
East Commercial Street, in the city of East Rochester,
and State of New York, herein called the East Rochester
office, and is, and has been at all times material herein,
engaged at said location as a heating and plumbing
contractor and in related services The Respondent's East
Rochester office is the only facility involved in this
proceeding.
During the past year Respondent in the course and
conduct of its business operations, purchased, transferred,
and delivered to its East Rochester office, plumbing and
heating materials and other goods, materials and supplies,
valued in excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported to said
location directly from States of the United States other
than the State of New York
Respondent is 'now 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.
'Krieger-Ragsdale & Co. Inc . 159 NLRB 490 , enfd 379 F 2d 517
(C A 7), cert denied 389 U S 1041, N L R B v Macomb Pottery, 376
F 2d 450 (C A 7), Howard Johnson Company 164 NLRB No 121,
Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh
Plate Glass Co v N L R B, 313 U S 146, 162, NLRB Rules and
Regulations , Sections 102 67(f) and 102 69(c)
'O K Van and Storage . Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A
5) See Air Control Window Products, Inc. 335 F 2d 245, 249 (C A 5)
"If there is nothing to hear, then a hearing is a senseless and useless
formality " See also N L R B v Beta Shoe Co. 377 F 2d 821, 826 (C A
4), cert denied 389 U S 917 " there is no requirement , constitutional
or otherwise , that there be a hearing in the absence of substantial and
material issues crucial to determination of whether NLRB election results
are to be accepted for purposes of certification "
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lI THE LABOR ORGANIZATION INVOLVED
The Union is, 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 constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act
All plumbers and plumber apprentices employed at
Respondent's East Rochester, New York, place of
business, excluding all office clerical employees,
professional employees, guards, and supervisors as
defined in the Act
At all times since May 27, 1969, the Union has been
the representative for the purposes of collective bargaining
of all employees in the appropriate unit, and by virtue of
Section 9(a) of the Act, has been, and is now, the
exclusive representative of all employees in said unit for
the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment
On July 8, July 10, and August 20, 1969, the Union
requested the Respondent to meet and bargain collectively
with the Union with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment
On July 9, July 11, and August 25, 1969, Respondent
did refuse and continues to refuse, to recognize and/or
bargain with the Union as such representative
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5) of the Act and has interfered with, restrained and
coerced 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.
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following
ORDER
A. For the purpose of determining the 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
exclusive collective- bargaining representative in the
appropriate unit S
B Penfield Plumbing and Heating, Inc , its officers,
agents, successors , and assigns, shall-
1 Cease and desist from:
(a) Refusing to bargain collectively with UA Local 13,
United Association of Journeymen and Apprentices of the
Plumbing and Steamfitting Industry of the United States
and Canada , AFL-CIO, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit
'The purpose of this provision is 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 See Mar-Jac Poultry Co , 136
NLRB 785, Commerce Co, d/b/a Lamar Hotel. 140 NLRB 226, 229, 328
F 2d 600 (C A 5), cert denied 379 U S 817, Burnett Construction Co .
149 NLRB 1419, 1421, 350 F 2d 57 (C A 10)
All plumbers and plumber apprentices employed at
Respondent's East Rochester, New York, place of
business, excluding all office clerical employees,
professional employees, guards, and supervisors as
defined in the Act
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such 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 UA Local
13, United Association of Journeymen and Apprentices of
the Plumbing and Steamfitting Industry of the United
States and Canada, AFL-CIO, as the exclusive
representative of all employees in the appropriate unit
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and
embody in a signed agreement any understanding reached
(b) Post at its place of business in East Rochester, New
York, copies of the attached notice marked "Appendix "°
Copies of said notice on forms provided by the Regional
Director for Region 3, shall, after being duly signed by an
authorized representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof and be
maintained by the Respondent for a period of 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted Resasonable 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 receipt of this recommended
Order what steps the Respondent has taken to comply
herewith.'
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes 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 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 "
'in the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 3, in writing, within 10 days from receipt of this 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 UA
Local 13, United Association of Journeymen and
Apprentices of the Plumbing and Steamfitting Industry
of the United States and Canada, AFL-CIO, as the
exclusive collective-bargaining representative of all the
following employees
All plumbers and plumber apprentices employed at
our East Rochester, New York, place of business,
excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the
Act.
PENFIELD PLUMBING AND HEATING, INC
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative-
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit , and if an
understanding is reached we will sign a contract with
the Union.
PENFIELD PLUMBING AND
HEATING, INC.
(Employer)
Dated By
917
(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,
Fourth Floor, The 120 Building, 120 Delaware Avenue,
Buffalo, New York 14202, Telephone 518-472-2215