Spaulding Fibre Co., Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1972

200 N.L.R.B. 767 (N.L.R.B. 1972)

MYCALEX DIVISION
Mycalex Division of Spaulding Fibre Company, Inc
and United Automobile, Aerospace and Agricultur-
al Implement Workers of America Case
22-CA-5027
December 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on July 21, 1972, by United
Automobile, Aerospace and Agricultural Implement
Workers of America, herein called the Union, and
duly served on Mycalex Division of Spaulding Fibre
Company, Inc, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 22,
issued a complaint on August 22, 1972, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge' were duly
served on the parties to this proceeding
With respect to the unfair labor practices, the
complaint alleges in substance that on June 20, 1972,
following a Board election in Case 22-RC-5198 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate, 2 and that, commenc-
ing on or about July 7, 1972, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so
On August 31, 1972, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint
On September 13, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment Subsequently, on September 26,
1972, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted Respon-
1 The title of Trial Examiner was changed to Administrative Law
Judge ' effective August 19 1972
2 Official notice is taken of the record in the representation proceeding
Case 22-RC-5198 as the term record is defined in Secs 102 68 and
102 69(f) of the Board s Rules and Regulations Series 8, as amended See
LTV Electrosystemr Inc 166 NLRB 938 enfd 388 F 2d 683 (C A 4 1968)
Golden Age Beverage Co, 167 NLRB 151 Intertype Co v Penello 269
F Supp 573 (D C Va 1967) Follett Corp 164 NLRB 378 enfd 397 F 2d
91 (C A 7 1968), Sec 9(d) of the NLRA
3 The ballot was marked with the word NO printed in pencil on the
767
dent thereafter filed a response to Notice To Show
Cause, with attached affidavits
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
Upon the entire record in this proceeding, the
Board makes the following
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
In its answer to the complaint herein, Respondent
contends that the Board improperly certified the
Union as the exclusive bargaining representative of
Respondent's employees in the appropriate unit In
support of this contention, Respondent, in its
affidavits in opposition to the Motion for Summary
Judgment, argues that the Regional Director failed to
count a valid "no" vote cast in the underlying
representation election,3 and that, in any event, the
voided ballot raised a question as to the intent of the
voter, thereby requiring the Regional Director to
conduct a hearing to adduce evidence on the
circumstances surrounding the election in order to
determine that intent The General Counsel contends
that the Respondent is attempting to rehtigate the
issues it raised in the related representation case We
find meet in the General Counsel's position
A review of the entire record in the representation
proceeding in Case 22-RC-5198 reveals that the
election conducted on March 10, 1972, pursuant to a
Stipulation for Certification Upon Consent Election,
resulted in a vote of 57 to 51 in favor of the Union,
with 7 ballots challenged 4 The challenged ballots
were sufficient in number to affect the results of the
election Thereafter, the Respondent filed timely
objections to conduct affecting the results of the
election, alleging, in substance, that the Board agent
had refused to count the two ballots which he
declared void and which in fact were valid
After investigation, the Regional Director, on April
14, 1972, issued his report on Objections and
Challenges in which he recommended that the
objections be overruled, 5 that one of the two
previously disputed ballots be considered void, as it
was ambiguous on its face and did not clearly
indicate the voter's intent, that the other disputed
YES side of the ballot directly below the YES square and had no other
markings
4 At the election the Board agent found that two ballots were void
Upon the Respondents immediate objection the Board agent placed the
two disputed ballots into envelopes provided for challenged ballots and the
two ballots were thenceforth treated as challenged ballots
5 As the Regional Director subsequently treated the two disputed ballots
as challenged ballots he found that the substance of Respondents
objections had been rendered moot and thus did not raise substantial or
material issues with respect to the conduct of the election
200 NLRB No 93
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballot be counted, that the challenge to one other
ballot be sustained, and that the challenges to the
remaining four ballots be overruled The Regional
Director further recommended that these latter four
ballots should not be opened and counted if the
Board adopted his other recommendations, as they
then would not be determinative of the election
Thereafter, the Respondent filed timely exceptions to
the Regional Director's report, and a supporting
brief, contending that the Regional Director had
erred in treating the two previously disputed ballots
as "challenged" rather than "void" ballots, that the
ballot declared "void" by the Regional Director was
clearly valid under Board law, and that the Regional
Director had erred in not opening and counting the
remaining four ballots, the challenges to which were
previously overruled
On June 20, 1972, the Board issued its Decision
and Certification of Representative finding that
Respondent's exceptions raised no substantial issues
of fact or law which would warrant reversal of the
Regional Director's findings and recommendations,
adopting his report and recommendations, and duly
certifying the Union
With respect to the Respondent's contention herein
that the Regional Director failed to count a valid
"no" vote cast in the representation election, had
treated two void ballots as challenged, and failed to
open and count four ballots, the challenges to which
he had overruled, it is well settled that in the absence
of newly discovered or previously unavailable evi-
dence or special circumstances a respondent in a
proceeding alleging a violation of Section 8(a)(5) is
not entitled to rehtigate issues which were or could
have been litigated in a prior representation proceed-
ing 6
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding
However, Respondent, in its response to the
Motion for Summary Judgment, for the first time
contends that since the issue raised with respect to
the voided ballot is concededly one of determining
the "intent" of the voter, it is entitled, at the very
6 See Pittsburgh Plate Glass Co v NLRB 313 U S 146 162 (1941)
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
9 4llted Foods Inc 189 NLRB No 79 and cases cited in fn 6 Clarytona
Manor Inc 192 NLRB No 114 and cases cited in fn 3
minimum, to a factual hearing to adduce evidence on
the circumstances surrounding the election in order
to determine that intent We find no merit in this
contention As indicated above, the Regional Direc-
tor, in his Report on Objections and Challenges,
determined as a matter of law that the disputed
ballot did not clearly manifest the voter's intent and
the Board determined that Respondent's contentions
with respect to the voided ballot raised no substantial
issues of fact or law which would require reversal of
the Regional Director's findings and recommenda-
tions We note in this regard that ordinary concepts
of fairness require that the validity of a ballot be
determined by its content, and that where this cannot
be ascertained in a manner free from ambiguity, the
ballot must be deemed void Parol testimony as to a
voter's intent, in such circumstances, is incompetent
It is well established that parties do not have an
absolute right to a hearing on objections to the
election It is only when the moving party presents a
prima facie showing of "substantial and material"
issues that he is entitled to an evidentiary hearing 7 It
is clear that absent arbitrary action, this qualified
right to a hearing satisfies all statutory and constitu-
tional requirements 8 We shall, accordingly, grant the
General Counsel's Motion for Summary Judgment
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a New Jersey corporation with its
principal office and plant at 125 Clifton Boulevard,
Clifton, New Jersey, and is engaged in the manufac-
ture, sale, and distribution of glass bonded mica
components and related products
During the fiscal year ending June 30, 1972, a
representative period, Respondent caused to be
manufactured, sold, and distributed at said plant,
products valued in excess of $50,000, of which
products valued in excess of $50,000 were shipped
from said plant in interstate commerce directly to
States of the United States other than New Jersey
We find, on the basis of the foregoing, that
Respondent is, 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, and that
it will effectuate the policies of the Act to assert
jurisdiction herein
8 Amalgamated Clothing Workers of America v N L KB 424 F 2d 818
828 (C A D C 1970) NLRB v Golden Age Beverage Co 415 F 2d 26 32
(CA 5 1969)
MYCALEX DIVISION
II THE LABOR ORGANIZATION INVOLVED
United Automobile, Aerospace and Agricultural
Implement Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act
All production and maintenance employees
employed at Respondent's Clifton, New
Jersey, plant, excluding all office clerical
employees, guards, professional employees
and supervisors as defined in the Act, and all
other employees
2 The certification
On March 10, 1972, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 22, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 20, 1972, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act
B The Request To Bargain and Respondent's
Refusal
Commencing on or about July 7, 1972, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit Com-
mencing on or about July 7, 1972, and continuing at
all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit
Accordingly, we find that the Respondent has,
since July 7, 1972, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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
769
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship 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 com-
merce
V THE REMEDY
Having found that 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 employees in the
appropriate unit, and, if an understanding is reached,
embody such 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 period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit See Mar-Jac 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)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Mycalex Division of Spaulding Fibre Compa-
ny, Inc, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 United Automobile, Aerospace and Agricul-
tural Implement Workers of America is a labor
organization within the meaning of Section 2(5) of
the Act
3 All production and maintenance employees
employed at Respondent's Clifton, New Jersey,
plant, excluding all office clerical employees, guards,
professional employees, and supervisors as defined in
the Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
4 Since June 20, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act
5 By refusing on or about July 7, 1972, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has 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 mean-
ing 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 Respondent,
Mycalex Division of Spaulding Fibre Company, Inc,
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 United Automobile,
Aerospace and Agricultural Implement Workers of
America as the exclusive bargaining representative of
its employees in the following appropriate unit
All production and maintenance employees em-
ployed at Respondent's Clifton, New Jersey,
plant, excluding all office clerical employees,
guards, professional employees, and supervisors
as defined in the Act, and all other employees
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in 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 under-
standing is reached, embody such understanding in a
signed agreement
(b) Post at its Clifton, New Jersey, facility copies of
the attached notice marked "Appendix "9 Copies of
said notice, on forms provided by the Regional
Director for Region 22, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
9 In the event that this 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
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America as the exclusive
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
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive 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 agree-
ment The bargaining unit is
All production and maintenance employees
employed at Respondent's Clifton, New
Jersey, plant, excluding all office clerical
employees, guards, professional employees,
and supervisors as defined in the Act, and all
other employees
MYCALEX DIVISION OF
SPAULDING FIBRE
COMPANY, INC
(Employer)
Dated By
(Representative) (Title)
MYCALEX DIVISION 771
This is an official notice and must not be Any questions concerning this notice or comph-
defaced by anyone ance with its provisions may be directed to the
This notice must remain posted for 60 consecutive Board's Office, Federal Building, 16th Floor, 970
days from the date of posting and must not be Broad Street, Newark, New Jersey 07102, Telephone
altered, defaced, or covered by any other material 201-645-2100