Scovill Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 11, 1970

187 N.L.R.B. 156 (N.L.R.B. 1970)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scovill Manufacturing Company , Schrader Division
and International Union of Electrical Radio and
Machine Workers , AFL-CIO. Case 11-CA-4267
December 11, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 9, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding granting General Counsel's Motion for
Summary Judgment on the ground that there are no
unresolved issues requiring an evidentiary hearing
and 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. The Trial Examiner recommended that the
Respondent cease and desist from such unfair labor
practices 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 considered the Trial Examiner's
Decision, the exceptions and briefs, 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 adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Scovill Manufacturing Company,
Schrader Division, Wake Forest, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order.
i Administrative or official notice is taken of the record in the
representation proceeding, Case 11-RC-3038, 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, Inc, 166 NLRB
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner: The case arises
on a motion of counsel for the General Counsel for
summary judgment, on the ground that Respondent seeks
to raise defenses to allegations of the complaint based on
matters decided in the representation proceeding and on an
admitted refusal by the Respondent to bargain with the
certified Charging Union.
THE REPRESENTATION PROCEEDING 1
Upon petition filed on November 18, 1969, under Section
9 of the National Labor Relations Act (29 U.S.C.A. 159),
by International Union of Electrical, Radio & Machine
Workers, AFL-CIO, herein called the Union, the Union
and Scovill Manufacturing Company, herein called the
Respondent, entered into a Stipulation for Certification
Upon Consent Election, which was approved by the
Regional Director for Region 11 of the Board on
November 28, 1969.
Pursuant to the stipulation, an election in an appropriate
unit, described hereinafter, was held on December 18, 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 ballots, which showed that, of approximately 280 eligible
voters, 132 cast valid ballots for the Union, 129 cast valid
ballots against the Union, and 1 ballot was challenged. The
challenged ballot was not sufficient to affect the results of
the election.
On December 29, 1969, the Respondent filed timely
objections to the election, alleging in substance that the
Union made substantial and material misrepresentations of
fact calculated to inflame or to mislead or misinform
employees. Respondent also contended that employees
were coerced and restrained by the use of threatening
telephone calls and by threats of loss of jobs and bodily
harm if they did not vote for the Union and, further, that
the Board agent conducting the election acted in such a
manner as to deprive the employees of a free and uncoerced
choice in the election. Respondent requested that a second
election be held.
On February 27, 1970, the Regional Director issued his
Report on Objections. In the report, the Regional Director
stated, in sum, that an investigation of said objections had
been conducted under the direction of the Regional
Director, that time was permitted all parties for presenta-
tion of evidence bearing on the issues, and that, after
considering all evidence secured in the investigation, he had
reviewed the objections. The Regional Director thereupon
discussed the objections, concluded that they were without
merit, and recommended that they be overruled and that a
certification of representative issue.
938, enfd 388 F.2d 683 (C A 4), Golden Age Beverage Co, 167 NLRB 151,
enfd 415 F.2d 26 (C A. 5), Intertype Co v Penello, 269 F Supp 573 (D C
Va.); Intertype Co v. N L R.B, 401 F 2d 41 (C.A. 4), Follett Corp., 164
NLRB 378, enfd 397 F 2d 91 (C A 7), Section 9(d) of the National Labor
Relations Act
187 NLRB No. 29
SCOVILL MANUFACTURING CO. 157
Thereafter, on March 16, 1970, Respondent filed timely
exceptions to the Regional Director's Report on Objec-
tions, in which exception was taken to all findings and
recommendations of the Regional Director on the ground
that they were contrary to the facts, the evidence, and the
law.
On May 12, 1970, the Board issued a Decision and
Certification of Representative in which the Board stated,
inter aka, that "the Board has considered the objections, the
Regional Director's Report, and the Employer's exceptions,
and hereby adopts the Regional Director's findings,
conclusions, and recommendations." The Board further
said, inter aka, that "[the Respondent's exceptions ] raise no
issue requiring a hearing or which would warrant reversal
of the Regional Director's findings and recommendations."
Accordingly, the Board certified the Union as the
collective-bargaining representative of the employees in the
appropriate unit.
THE UNFAIR LABOR PRACTICE CASE
On June 2, 1970, the Union filed the instant unfair labor
practice charge alleging that since the certification the
Respondent has refused to recognize or meet with the
Union as the collective-bargaining representative of the
employees in the appropriate unit.
On June 30, 1970, the Regional Director issued a
complaint and notice of hearing alleging violations by the
Respondent of Sections 8(a)(1) and (5) and 2(6) and (7) of
the Act, by refusing on May 27, 1970, to meet and negotiate
with the certified union, though requested to do so.
On July 9, 1970, Respondent filed its answer to
complaint, in which Respondent admitted most of the
material allegations of the complaint, but denied the
commission of unfair labor practices, and prayed that the
complaint be dismissed in its entirety.
On July 20, 1970, counsel for the General Counsel filed a
Motion for Summary Judgment, dated July 17, 1970. On
July 22, 1970, I issued an Order to Show Cause on General
Counsel's Motion for Summary Judgment, returnable
August 5, 1970. Thereafter, on July 31, 1970, counsel for the
Union, and on August 5, 1970, counsel for Respondent,
filed their responses to the Order to Show Cause, and on
August 6, 1970, Respondent filed its Counter Response to
Order to Show Cause. No other responses have been
received.
RULING ON MOTION FOR SUMMARY JUDGMENT
Respondent opposes granting of the Motion for Summa-
ry Judgment. Respondent reiterates its contentions made in
the representation proceeding, disputing the Board's
findings and conclusions made therein and asserts that
factual issues exist which can only be resolved by a hearing.
2 International Union of Electrical, Radio & Machine Workers v
N L R B, (Tndee Products) 426 F 2d 1243 (C A D C) The court there held.
in sum, that, where an employer's resistance to a valid Board certification
is not in good faith, remedies going beyond an order to bargain may be
appropriate
3 Krieger-Ragsdale & Co, Inc, 159 NLRB 490, enfd 379 F 2d 517 (C A
7), cert denied 389 U S 1041 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).
The Union contends, inter aka, that summary judgment
should be entered in favor of the General Counsel and,
citing the Tiidee Products case as authority,2 that the
hearing be kept open to afford the Union opportunity to
introduce evidence to support an appropriate make-whole
remedy.
In its Counter Response to Order to Show Cause
Respondent contends, inter alia, that the Tudee Products
case is inapplicable to the instant proceeding. Respondent
also asserts that it would be improper for a hearing to be
opened for the restricted purpose urged by the Union.
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.3 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 and material issues are raised.4
Respondent simply seeks to relitigate issues previously
disposed of in the representation proceeding. Respondent
contends it would be depraved of due process of law if not
given a hearing on the complaint, stating its need to
examine witnesses and review authority which would show
that the Union was improperly certified. Respondent
further asserts there are unresolved issues of fact which
require hearing, for the reason ". . . that the totality of the
Union's conduct may not be properly revealed in the
absence of a Hearing...." (Response to Order to Show
Cause, p. 3)
All contentions raised by the Respondent in its responses
were determined by the Board in the representation
proceeding and cannot be reviewed by the Trial Examiner
in an unfair labor practice case, in the absence of previously
unavailable evidence or special circumstances. Respondent
not having raised any such contention which I find to be
substantial, its request for a hearing must be denied.
With respect to the Union's response and request for
hearing to determine an appropriate make-whole remedy, I
find the Tiidee Products case inapplicable. See United
Steelworkers v. N.L.R.B. (Quality Rubber Co.), 430 F.2d 519
(C.A.D.C.), in which the same court, distinguishing the
Tiidee Products case, said that:
There is no indication in the record presently before us
that the company wished unnecessarily to delay the
final outcome of this dispute. In Tudee Products, on the
other hand, the "position of the Company [was]
palpably without merit with respect to its refusal to
bargain."
There is no evidence in the instant record to support a
conclusion that the Respondent's resistance to the certifica-
tion here was other than in good faith, and the Union has
4 O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C.A.
5) See N L R B v 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 Bata 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 "
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made no specific offer of proof in that regard. I therefore
find the Titdee Products case inapplicable. In any event,
there being no offer by the Union of specific evidence
relevant to a make-whole remedy, there is no basis to order
a hearing for such purpose.
There thus being no unresolved matters requiring an
evidentiary hearing, the motion of counsel for the General
Counsel for summary judgment is granted, and the Union's
request for a hearing on the remedy is denied.5
Upon the basis of the record before me, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation engaged in the
manufacture of air valves and metal products at a plant in
Wake Forest, North Carolina.
During the past 12 months, which period is representative
of all times material herein, Respondent received raw
materials valued in excess of $50,000 at its Wake Forest,
North Carolina, plant, directly from points outside the
State of North Carolina. During the same period of time,
Respondent manufactured, sold, and shipped finished
products valued in excess of $50,000 directly to points
outside the State of North Carolina.
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.
II. THE LABOR ORGANIZATION INVOLVED
The Union is 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 production and maintenance employees em-
ployed at the Employer's Wake Forest, North Carolina,
plant, but excluding all office clerical employees,
technical employees, professional employees, guards,
watchmen and supervisors as defined in the Act.
At all times since May 12, 1970, the Union has been the
representative of a majority of the employees in the
appropriate unit for purposes of collective bargaining.
On or about May 26, 1970, by letter, the Union requested
Respondent meet with it for the purpose of conducting
5 In its counter response the Respondent moved to strike par 2 of the
Union's response, in which the Union stated generally that the Trial
Examiner should take judicial notice that southern employers commonly
seek dissipation of a union 's representative status by dilatory tactics and
contrived resistance . No authority is cited for such proposition , and I am
not aware of any . The requested finding cannot therefore be made In
advocacy rhetoric sometimes outruns evidence Unless scandalous or
prejudicial , however, overstatement is not ordinarily ground for sinking
argument Neither ground seeming applicable here, the statement may
stand
6 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
collective-bargaining negotiations with respect to said
employees.
By letter dated May 27, 1970, Respondent refused to
meet and negotiate with the Union with respect to the
employees in the appropriate unit.
By thus refusing to bargain collectively Respondent has
engaged in unfair labor practices within the meaning of
Sections 8(a)(1) and (5) and 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:
RECOMMENDED 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
bargaining representative in the appropriate unit .6
B. Scovill Manufacturing Company, Schrader Division,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union of Electrical, Radio and Machine Workers,
AFL-CIO, as the exclusive collective-bargaining represent-
ative of the employees in the appropriate bargaining unit:
All production and maintenance employees employed
at the Employer's Wake Forest, North Carolina, plant,
but excluding all office clerical employees, technical
employees, professional employees, guards, watchmen
and supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent employees as exclusive collective-bargain-
ing representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with International
Union of Electrical, Radio and Machine Workers,
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 Wake Forest, North
Carolina, copies of the attached notice marked
"Appendix." 7 Copies of said notice, on forms provided by
the Regional Director for Region 11, after being duly
signed by an authorized representative of the Respondent,
shall be posted by the Respondent immediately upon
receipt thereof and be maintained by the Respondent for a
(C.A 5), cert denied 379 U.S. 817, Burnett Construction Co, 149 NLRB
1419, 1421, 350 F.2d 57 (C.A. 10, 1965).
T 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."
SCOVILL MANUFACTURING CO. 159
period of 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 11, in
writing, within 20 days from receipt of this Recommended
Order what steps the Respondent has taken to comply
herewith.8
8 In the event these recommendations are adopted by the Board, this
provision shall be modified to read "Notify the Regional Director for
Region 11, in writing , within 10 days from receipt of this Order what steps
the Respondent has taken to comply herewith "
APPENDIX
guards, watchmen and supervisors as defined in
the Act.
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 under-
standing is reached, we will sign a contract with the
Union.
SCOVILL MANUFACTURING
COMPANY, SCHRADER
DIVISION
(Employer)
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
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, as the exclusive collective-bargain-
ing representative of all our following employees:
All production and maintenance employees
employed at our Wake Forest, North Carolina,
plant, but excluding all office clerical employees,
technical employees, professional employees,
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-2300.