Union Brothers, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1967

162 N.L.R.B. 1505 (N.L.R.B. 1967)

UNION BROTHERS, INC. 1505
are equally applicable to the unit sought in the present case. The
Board said in Warren (144 NLRB 204, 208) :
In all the circumstances of this case, including the absence of
any bargaining history and the fact that the engineering division
is a distinct administrative subdivision of the Employer, having
a functional base of maintenance, construction, and utility work
and employing primarily skilled employees who work out of their
respective craft shops and do not work directly in the productive
process, we agree . . . that such unit . . . is appropriate for
collective-bargaining purposes. In reaching this result we are not
unmindful of the fact that there is some overlapping of work
skills among some of the employees doing maintenance work in
the production divisions and some of the lesser skilled employees
in the engineering division. However, we do not believe that in
the circumstances of this case that this factor is sufficient to
destroy the homogeneity and mutuality of interests of employees
in the engineering division.
Accordingly, we find that the following employees constitute a unit
appropriate for collective bargaining within the meaning of Section
9(b) of the Act:
All employees of the Employer employed in the engineering and
utilities department of its Groton, Connecticut plant, including chem-
ical mechanics, mechanical stockroom employees, research mainte-
nance employees, millwrights, pump and oilers, machinists and tool
crib employees, refrigeration employees, carpenters, painters, riggers,
maintenance employees, pipefitters, insulators, employees in the tin
shop, electric shop, instrument shop, valve shop, northwest area,
northeast area, and utility employees and welders, but excluding all
office clerical employees, planning department employees, drafting
room, production employees, professional employees, watchmen,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.] .4
a An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 1 within 7 days
after the date of this Decision and Direction of Election . The Regional Director shall make
the list available to all parties to the election. No extension of time to file this list shall
be granted by the Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236.
Union Brothers , Inc. and United Furniture Workers of America,
AFL-CIO. Case 5-CA-3615. February 8, 1967
DECISION AND ORDER
Upon a charge filed by United Furniture Workers of America,
AFL-CIO, herein called the Union, the General Counsel for the
162 NLRB No. 140.
264-047-67-vol. 16 2-9 6
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board, by the Regional Director for Region
5, issued a complaint dated October 4, 1966, against Union Brothers,
Inc., herein called Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Sections 8(a) (5) and (1) and 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of the charge, the
complaint, and notice of hearing before a Trial Examiner were duly
served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges, in
substance, that on or about April 27, 1966, the Union was duly certi-
fied by the Board 1 as the exclusive bargaining representative of the
Respondent's employees in the unit found appropriate by the Board,
and that, since on or about September 13, 1966, and at all times there-
after, the Respondent has refused and is refusing to recognize or
bargain with the Union as such exclusive bargaining representative,
although the Union has requested and is requesting it to do so. On
October 17, 1966, the Respondent filed its answer, denying the com-
mission of the unfair labor practices alleged.
On October 20, 1966, the General Counsel filed with the Board a
motion for summary judgment, urging that the Board, in view of
admissions contained in the Respondent's answer, enter judgment
against the Respondent on the pleadings herein, making findings of
fact as alleged in the complaint and admitted in the Respondent's
answer, and concluding that the Respondent has violated Section
8(a) (5) and (1) of the Act as alleged in the complaint and denied in
the answer. Thereafter, on October 21, 1966, the Board issued an
order transferring case to the Board and a notice to show cause, on or
before November 10, 1966, why the General Counsel's motion for sum-
mary judgment should not be granted. On November 9, 1966, the
Respondent filed a statement in opposition to General Counsel's
motion for summary judgment.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch, and Members Fanning and
Zagoria].
Upon the entire record in this case, the Board makes the following:
Ruling on the Motion for Summary Judgment
In its statement in opposition to General Counsel's motion for
summary judgment, the Respondent contends, inter alia, that it is
entitled to a hearing to insure full litigation of the facts. This con-
3 Decision and Certification of Representative issued April 27, 1966 , in Case 5-RC-5127
( not published in NLRB volumes).
UNION BROTHERS INC. . 1507
tention is without merit. The Respondent's answer to the complaint
and its statement in opposition establish that the Respondent is seek-
ing to relitigate matters decided by the Board in the prior representa-
tion proceeding.
The record before us establishes that pursuant to a stipulation for
certification upon consent election, approved May 12, 1965, a secret-
ballot election was conducted under the supervision of the Acting
Regional Director for Region 5 on June 10, 1965, in which, of approx-
imately 58 eligible voters, 56 cast ballots, of which 24 were for, and
23 against, the Union, and 9 were challenged. The challenged ballots
were sufficient in number to affect the results of the election. There
after, the Union filed timely objections to conduct affecting the results
of election. After an administrative investigation, the Regional Direc-
tor issued a report of challenges and objections in which he recom-
mended, inter alia, that six challenges be sustained; that two be over-
ruled; and, if determinative, that the challenge to the ballot of John
Ellenberger be resolved by a hearing. No exceptions to the Regional
Director's report were filed. The Board adopted his recommendations,
and directed that the twoballots as to which the challenges were over-
ruled be opened and counted, and further, that, if Ellenberger's ballot
were determinative, a hearing should be held to resolve the issue of
Ellenberger's status. As the revised tally showed that Ellenberger's
ballot was determinative of the results of the election, a hearing was
held on September 17 and October 4, 1965. On January 4, 1966, Hear-
ing Officer Leonard R. Miller issued his report on challenged ballot
in which he found that Ellenberger was a supervisor within the mean-
ing of the Act, and, accordingly, recommended that the challenge to
Ellenberger's ballot be sustained. On April 27, 1966, the Board issued
its decision and certification of representatives, in which it adopted
the Hearing Officer's findings and recommendations and certified the
Union as the exclusive bargaining representative of the employees in
the appropriate unit.2
As the Respondent admits in its answer, the Union has requested
that the Respondent bargain collectively with it, and the Respondent
refused and has continued to refuse the Union's request.
In its opposition, the Respondent contends in substance; (1) that
it is entitled to a hearing on the grounds that the Board is without
jurisdiction to hear and determine motions for summary judgment;
(2) that it would not effectuate the purposes of the Act to require
bargaining now, more than 17 months after an election which was
decided by a margin of only one vote; and (3) that a bargaining
2 In view of this determination , the Board found it unnecessary to consider the Union's
objections to the election.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order should not issue at this time, in any event, on the grounds that
the Board's determination of Ellenberger's status was erroneous and,
therefore, the certification issued by the Board is invalid.
We find no merit in contention (1), as the Board clearly has
authority to rule on such a motion.3 We also find no merit in conten-
tion (2), as the Union, which was certified by the Board, has never
been recognized by the Respondent as the duly designated representa-
tive of its employees. We likewise find no merit in contention (3), as
the Respondent is seeking thereby to relitigate in an unfair labor
practice proceeding issues which were resolved in the prior represen-
tation proceeding. It is established that, in the absence of newly dis-
covered or previously unavailable evidence, a respondent is not
entitled to relitigation in a Section 8(a) (5) proceeding of issues
which were or could have been raised in a related representation pro-
ceeding.' The Respondent has not raised any issue which is properly
triable in the instant unfair labor practice proceeding. As all mate-
rial issues have been previously decided by the Board, are admitted by
the Respondent's answer to the complaint, or stand admitted by the
failure of the Respondent to controvert the averments of the General
Counsel's motion, there are no matters. requiring a hearing before a
Trial Examiner. Accordingly; the General Counsel's motion for sum-
mary judgment is granted. On the basis of the record before it, the
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times material herein, a
corporation duly organized and existing by virtue of the laws of the
State of Maryland, and is engaged in the manufacture of upholstered
furniture at two plants in Baltimore city. During the past year, which
period is representative of all material times herein, the Respondent
received goods, materials, and products valued in excess of $50,000
directly from outside the State of Maryland.
The Respondent admits, and we find, that the Respondent is, and
has been at all times material herein, an employer engaged in com-
mnerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Furniture Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
s Brush -Moore Newspapers, Inc., 161 NLRB 1620 ; E-Z Davies Chevrolet, 161 NLRB
1389 ; Collins & Aikman Corp., 160 NLRB 1750.
4 Pittsburgh Plate Glass Company v. N .L.R.B., 313 U.S . 146; Brush-Moore Newspapers,
Inc., ibid.; Collins ,& Aikman Corp ., ibid.
UNION BROTHERS, INC.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
1. The unit
1509
At all times material herein, the following employees of the
Respondent have constituted a unit appropriate for collective bar-
gaining within the meaning of the Act:
All woodworking and wood finishing employees at the Respond-
ent's operations at Clement Street and Hanover Street , Balti-
more , Maryland , including the intershop driver and receiving
man, but excluding all upholstery employees, over-the-road driv-
ers and their helpers , office clerical employees , guards, profes-
sional employees, and supervisors as defined in the Act.
2. The certification
On June 10, 1965, a majority of the employees of the Respondent
in said unit, in a secret election conducted under the supervision of
the Regional Director for Region 5, designated the Union as their
representative for the purpose of collective bargaining with the
Respondent. On April 27, 1966, the Board certified the Union as the
collective-bargaining representative of the employees in said unit, and
the Union continues to be such representative.
B. The request to bargain and the Respondent's refusal
Commencing on or about September 7, 1966, and continuing to date,
the Union has requested and is requesting the Respondent to bargain
collectively with it as the exclusive collective-bargaining representa-
tive of all the employees in the above-described unit. Since Septem-
ber 13, 1966, and continuing to date, the Respondent did refuse, and
continues to refuse, to bargain collectively with the Union as the
exclusive collective-bargaining representative of all the employees in
said unit.
Accordingly, we find that the Union was duly certified by the
Board as the collective-bargaining representative of the employees of
the Respondent in the appropriate unit described above, and that the
Union, at all times since April 27, 1966, has been and now is the
exclusive bargaining representative of all the employees in the af ore-
said unit, within the meaning of Section 9(a) of the Act. We further
find that the Respondent has, since September 13, 1966, refused to
bargain collectively with the Union as the exclusive bargaining repre-
sentative of its employees in the appropriate unit, and that, by such
refusal, the Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a) (5) and (1) of
the Act.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of the Respondent set forth in section III, above, occurring
in connection with its operations as described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged 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.
CONCLUSIONS OF LAW
1. Union Brothers, Inc., is an employer engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. United Furniture Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All woodworking and wood finishing employees at the Respond-
ent's operations at Clement Street and Hanover Street, Baltimore,
Maryland, including the intershop driver and receiving man, but
excluding all upholstery employees, over-the-road drivers and their
helpers, office clerical employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
4. Since April 27, 1966, the above-named labor organization has
been and now is the certified exclusive representative of all employees
in the aforesaid appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing on or about September 13, 1966, and at all times
thereafter, to bargain collectively with the above-named labor organi-
zation as the exclusive bargaining representative of all the employees
of the Respondent in the aforesaid appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) and (1) of the Act.
6. By the aforesaid refusal to bargain, Respondent has interfered
with, restrained, and coerced, and is interfering with, restraining, and
coercing, its employees in the exercise of the rights guaranteed to
UNION BROTHERS, INC. 1511
them in Section 7 of the Act, and has thereby 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 practices affect-
ing commerce within the meaning 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 the
Respondent, Union Brothers, Inc., Baltimore, Maryland, 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
Furniture Workers of America, AFL-CIO, as the exclusive. bargain-
ing representative of its employees in the following appropriate unit :
All woodworking and wood finishing employees at the Respond-
ent's operations at Clement Street and Hanover Street, Baltimore,
Maryland, including the intershop driver and receiving man, but
excluding the upholstery employees, over-the-road drivers and
their helpers, office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed to them
by 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 organi-
zation 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 understanding is
reached, embody such understanding in a signed agreement.
(b) Post at its Baltimore, Maryland, places of business, copies of
the attached notice marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for Region 5, after being duly
signed by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
3In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order ," the words "a
Decree of the United States Court of Appeals Enforcing an Order."
1.512 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
all places where notices to emplo- -ees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said . liotices
are not altered , defaced, or covered by any other material.
(c) Notify said Regional Director for Region 5, in writing , within
-10 days from the date of this Decision and Order , what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse to bargain collectively with United Furni-
ture Workers of America, AFL-CIO, as the exclusive representa-
tive 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 representative of all our employees in the bar-
gaining 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
agreement. The bargaining unit is:
All woodworking and wood finishing employees at our opera-
tions at Clement Street and Hanover Street, Baltimore, Mary-
land, including the intershop driver and receiving man, but
excluding all upholstery employees, over-the-road drivers and
their helpers, office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
UNION BROTHERS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board's Regional
Office, 707 North Calvert Street, Baltimore, Maryland 21202, Tele-
phone 752-8460, if they have any questions concerning this notice or
compliance with its provisions.