Versall Mfg., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1977

232 N.L.R.B. 374 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Versail Manufacturing, Inc., Subsidiary of Phillips
Industries, Inc. and United Paper & Allied
Workers Teamsters Local 1049 a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 25-CA-
6493
September 26, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on August 27, 1974, by United
Paper & Allied Workers Teamsters Local 1049 a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Versail
Manufacturing, Inc., Subsidiary of Phillips Indus-
tries, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 25, issued a
complaint on October 7, 1974, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 July 29, 1974,
following a Board election in Case 25-RC-5512, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about July 29, 1974, and at all times
thereafter, and more particularly on or about August
14, 1974, 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 October 15, 1974, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint and alleging certain
affirmative defenses. Counsel for the General Coun-
sel filed a motion for a bill of particulars dated
October 18, 1974, to which Respondent filed an
opposition dated October 31, 1974. Respondent also
filed a motion for the production of documents and a
motion for prehearing discovery dated October 31.
Official notice is taken of the record in the representation proceeding,
Case 25 RC 5512, as the term "record" is defined in Secs. 102.68 and
1
02
.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electroisterms, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
232 NLRB No. 80
By documents dated November 5, 1974, counsel for
the General Counsel filed a response to the opposi-
tion to motion for bill of particulars and an
opposition to Respondent's motions.
Thereafter, by orders dated November 8, 1974,
Administrative Law Judge Arthur Leff granted the
General Counsel's motion for a bill of particulars
and denied Respondent's motion for the production
of documents and motion for prehearing discovery.
Accordingly, Respondent filed a bill of particulars
dated November 18, 1974.
On November 29, 1974, counsel for the General
Counsel filed directly with the Board a motion to
strike portions of Respondent's answer and Motion
for Summary Judgment. Respondent filed an opposi-
tion to the Motion for Summary Judgment on or
about January 2, 1975, and filed a supplemental
footnote to the opposition on January 13, 1975. The
General Counsel filed a response to the supplemental
footnote on January 27, 1975. Subsequently, on April
1, 1975, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's motion to strike
portions of Respondent's answer and Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to the Notice To
Show Cause.
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 Respondent denies
the material allegations of the complaint and asserts
as affirmative defenses that: (I) the Union "improp-
erly and illegally offered to waive initiation fees,
made material and misleading representations and
otherwise interferred [sic] with, restrained and
coerced employees in the exercise of their rights
under Section 7 of the Act during the period of the
representation campaign ... ."; (2) a valid majority
of the ballots in the election conducted in Case 25-
RC-5512 were not cast for the Union; and (3) the
Union "has been and is engaging in illegal discrimi-
nation on the basis of race, sex and age," citing
N. LR.B. v. Mansion House Center Management
Corp., 473 F.2d 471 (C.A. 8, 1973). Respondent
further asserts its third affirmative defense in its
opposition to Motion for Summary Judgment, its
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1%9); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1%7);
Follerr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
374
VERSAIL MANUFACTURING, INC.
motions for prehearing discovery and for production
of documents, and its response to Notice To Show
Cause. The General Counsel asserts that Respon-
dent's first two affirmative defenses involve matters
which were litigated in the underlying representation
proceeding, that the Board has rejected these
contentions, and that the Board's decision on these
issues is therefore resjudicata. Respondent makes no
claim that such alleged defenses are in fact newly
discovered or based on previously unavailable
evidence.
Our review of the record herein, including the
record in Case 25-RC-5572, discloses that pursuant
to a Stipulation for Certification Upon Consent
Election an election was conducted among the
employees in the stipulated unit on December 7,
1973, and that the tally of ballots furnished the
parties after the election showed 75 votes cast for and
71 against the Union, 4 ballots were void, and 10
ballots were challenged, a sufficient number to affect
the result. Respondent filed timely objections which
alleged in substance that the Union (I) coerced
employees into not voting in the election; (2)
promised to waive initiation fees for current employ-
ees if it won the election; (3) prevented two eligible
employees from voting by establishing an illegal
highway blockade; and (4) furnished transportation
to the polling place, thereby granting voters an
economic benefit in order to influence their votes.
After investigation, the Acting Regional Director on
April 4, 1974, issued his Report on Challenged
Ballots, Objections to Conduct Affecting Results of
Election and Recommendations to the Board in
which he recommended that the objections be
overruled, that eight of the challenges be sustained,
and that, if the Board adopted his recommendations,
the remaining two challenged ballots would no
longer be determinative, and a Certification of
Representative in favor of the Union should be
issued. The Acting Regional Director further recom-
mended that, if the Board did not adopt his
recommendation that eight of the challenges be
sustained, thus causing the remaining two challenges
to become determinative, a hearing be directed
thereon.
On April 18, 1974, Respondent filed exceptions to
the Acting Regional Director's report and a support-
ing brief in which it essentially reiterated the
allegations set forth in its objections and the
contentions made in support thereof and its position
on the challenges. On July 29, 1974, the Board issued
2 212 NLRB 592.
:' Respondent made a similar contention in its supplemental footnote to
opposition to Motion for Summary Judgment.
Amalgamated Clothing Workers of America, AFL CIO /Winfield
Muanmaciuring Complln', Inc./ v. N.L.R B. 424 F.2d 818. 828 (C.A.D.C.,
1970)
a Decision and Certification of Representative 2
adopting the Acting Regional Director's report and
recommendations, with certain modifications not
material herein.
On or about August 14, 1974, in response to a
request for bargaining by the Union, Respondent
informed the Union by telegram that the validity of
the certification was at issue in pending litigation in a
United States District Court and that "bargaining
sessions can serve no useful purpose."
In response to the Notice To Show Cause of April
1, 1975, Respondent contends, inter alia, that because
no hearing was held on its objections in Case 25-
RC-5512, "Respondent has never been afforded
access to the full record upon which its objections
were denied." 3 However it is well settled that the
parties do not have an absolute right to a hearing.
Only when the objecting party presents a primafacie
showing of "substantial and material" issues of fact
concerning matters which would warrant the election
being set aside does the right to an evidentiary
hearing exist.4 Absent arbitrary action, this qualified
right to a hearing satisfies all statutory and constitu-
tional requirements.5 In this case the Board fully
considered Respondent's objections and exceptions
and did not order a hearing, but rather adopted the
Acting Regional Director's recommendations that
the objections be overruled.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.s Aside
from its alleged Mansion House defense, all issues
raised by Respondent in this proceeding were or
could have been litigated in the prior representation
proceeding, and 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.
With respect to the Mansion House defense, we find
no merit to Respondent's contention that it is not
obligated to bargain with the Union because the
latter "engages in illegal and invidious discrimination
on the basis of race, sex and age." As the Board
recently held in Bell & Howell Company, 7 issues
involving alleged invidious discrimination by a labor
organization "are prematurely raised in a representa-
5 Ibid.
6 See Pittsburgh Plate Gloss Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
7 230 NLRB 420(1977).
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion proceeding or in a proceeding, such as this,
where the employer refused to bargain in order to
test the underlying certification."
We therefore find that Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment. 8
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation, is engaged at its facility
in Elkhart, Indiana, in the manufacture, sale, and
distribution of doors for mobile homes and related
products. During the 12 months preceding issuance
of the complaint herein, a representative period,
Respondent, in the course and conduct of its
business operations, manufactured, sold, and distrib-
uted at said facility products valued in excess of
$50,000 which were shipped directly to States other
than the State of Indiana. During this same represen-
tative period, Respondent, in the course and conduct
of its business operations, purchased goods and
materials valued in excess of $50,000 which were
transported to its Elkhart, Indiana, facility directly
from States other than the State of Indiana.
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.
II. THE LABOR ORGANIZATION INVOLVED
United Paper & Allied Workers Teamsters Local
1049 a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
is a labor organization within the meaning of Section
2(5) of the Act.
I In its answer to the complaint Respondent, in addition to denying the
commission of any unfair labor practices, denies that it is an employer
engaged in commerce within the meaning of the Act; that the Union is a
labor organization within the meaning of the Act; that a majority of' the
valid ballots were cast for the Union in the December 7, 1973, election; and
that the Union is now and has been at all times since July 29, 1977, the
representative of the employees in the stipulated appropriate unit. However,
the Board, in its previously referred to Decision and Certification of'
Representative, disposed of these issues and they therefore cannot be
relitigated herein. Teledyne, Landis Machine, 212 NLRB 73 (1974).
Respondent also denies that the Union has requested bargaining and that it
has refused to recognize and/or bargain with the Union. However.
Respondent admits receipt of a letter dated August 5. 1974, from the Union
and admits sending a telegram to the Union on August 14, 1974. Copies of
these documents, the substance of which is described above and which
establish the Union's request for bargaining and Respondent's refusal, are
attached to the General Counsel's Motion for Summary Judgment and
Respondent has submitted nothing to controvert these documents or their
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent, including all truckdrivers, employed
at its Elkhart, Indiana, plant, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
2. The certification
On December 7, 1973, 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 25, designated the Union as their
representative for the purpose of collective-bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 29, 1974, 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 29, 1974, and at all
times thereafter, and more particularly on or about
August 5, 1974, the Union has requested Respondent
to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about July 29, 1974, and continuing at all times
thereafter to date, and more particularly on or about
August 14, 1974, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
contents. Accordingly, we deem these allegations of the complaint to be
true. The May) Departmenl Stores Company, 186 NLRB 86 (1970); Carl
Simpson Buick. Inc., 161 NLRB 1389(1966).
In view of our conclusions herein and our decision to grant the General
Counsel's Motion for Summary Judgment, we find it unnecessary to pass
upon the General Counsel's motion to strike portions of Respondent's
answer.
Respondent denies in its answer that it is an Ohio corporation. but avers
that it is a corporation duly organized and existing under the laws of the
State of Indiana. The General Counsel does not dispute this contention and
we therefore find that Respondent is incorporated under the laws of
Indiana. Respondent further denies in its answer the allegation of the
complaint that certain individuals were its agents and supervisors at "all
times material herein" but asserts that said individuals were agents acting on
its behalf and supervisors during vanous specified periods of time. We agree
with the General Counsel that the precise dates of these individuals'
incumbency in their respective positions are immaterial to this proceeding
and therefore find it unnecessary to make findings on this issue.
376
VERSAIL MANUFACTURING, INC.
Accordingly, we find that Respondent has, since
July 29, 1974, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
111, above, occurring in connection with its opera-
tions described in section 1, 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Versail Manufacturing, Inc., Subsidiary of
Phillips Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Paper & Allied Workers Teamsters
Local 1049 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees of
the Respondent, including all truckdrivers, employed
at its Elkhart, Indiana, plant, excluding all office
clerical employees, professional employees, guards
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 July 29, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
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 29, 1974, 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 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 the Respondent,
Versail Manufacturing Inc., Subsidiary of Phillips
Industries, Inc., Elkhart, Indiana, 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 Paper &
Allied Workers Teamsters Local 1049 a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees of
the Respondent, including all truckdrivers, em-
ployed at its Elkhart, Indiana, plant excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 office and place of business in
Elkhart, Indiana, copies of the attached notice
marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for Region
25, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable 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 25, 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
Paper & Allied Workers Teamsters Local 1049
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers 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 employ-
ees of Respondent, including all truck-
drivers, employed at our Elkhart, Indiana,
plant, excluding all office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
VERSAIL.
MANUFACTURING, INC.,
SUBSIDIARY OF PHILLIPS
INDUSTRIES, INC.
378