Wacho Mfg. Co.

National Labor Relations Board - Board Decisions

Jun 5, 1968

171 N.L.R.B. 1050 (N.L.R.B. 1968)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wacho Mfg. Co. and International Molders and Al-
lied Workers Union , AFL-CIO. Case 30-CA-735
June 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
unit, their dates of hire, classifications and cur-
rent rates of pay, and any other relevant infor-
mation requested.
' The Trial Examiner found that Respondent violated Section 8(a)(5)
and (I) of the Act by refusing to bargain with the certified representative
and to furnish information requested by the Union regarding employment
conditions in the bargaining unit However , the Trial Examiner inadver-
tently failed to order that Respondent furnish the requested information.
Accordingly, we shall modify the Order so as to require that Respondent
furnish the bargaining representative with such information
On April 15, 1968, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 brief, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations' of the Trial Ex-
aminer , with the following modifications.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Wacho Mfg. Co., Milwaukee and New Berlin,
Wisconsin, its officers, agents , successors, and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's Recommended Order, as herein modified:
1. Redesignate paragraph 2(b) as paragraph
2(c) and insert the following as paragraph 2(b):
"(b) Furnish to the International Molders and
Allied Workers Union, AFL-CIO, the previously
requested information including the names of the
employees in the appropriate unit described in
paragraph 1(a), their dates of hire, classifications,
and current rates of pay, and, upon request, any
other relevant information.
2. Add the following as the fourth indented para-
graph of the notice attached to the Trial Examiner's
Decision:
WE WILL furnish to the International Mold-
ers and Allied Workers Union, AFL-CIO, the
names of the employees in the appropriate
171 NLRB No. 146
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER, Trial Examiner: Upon
petition for certification as collective-bargaining
representative filed on May 11, 1967, by Interna-
tional Molders and Allied Workers Union,
AFL-CIO, herein called the Union, the Regional
Director for Region 30 of the Board on June 8,
1967, issued a Decision and Direction of Election
among the employees of Wacho Mfg. Co., Milwau-
kee and New Berlin , Wisconsin, herein called the
Respondent, in a single appropriate unit hereinafter
described. The Respondent's subsequent request
for review of the Regional Director's action filed
with the Board in Washington, D.C., and based on
the contentions that the Respondent's Milwaukee
and New Berlin plants constituted separate units,
and that an election at the New Berlin plant would
be premature, was denied by the Board on July 5,
1967, on the ground that the request for review
raised no substantial issue warranting review.
On July 12, 1967, an election by secret ballot
was conducted under the direction and supervision
of the Regional Director in the appropriate unit. A
majority of the ballots were cast in favor of the
Union. On July 17, 1967, the Respondent filed
timely objections to the election based upon alleged
interfering conduct by union agents and improper
election procedure. The record does not disclose
that the Respondent requested a hearing on its ob-
jections at that time. On August 30, 1967, after in-
vestigation, the Regional Director issued a Supple-
mental Decision and Certification of Representa-
tive in which he found that the Respondent's objec-
tions to the election raised no substantial or materi-
al issues with respect to the conduct of the election.
Consequently the Regional Director overruled the
objections in their entirety and certified the Union
as the collective-bargaining representative of the
employees in the appropriate unit.
' Administrative or official notice is taken of the record in the represen-
tation proceeding, Case 30-RC-653, 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, as revised
January I, 1965) See Section 9(d) of the National Labor Relations Act
WACHO MFG. CO.
On September 12, 1967, the Respondent filed
with the Board in Washington, D.C., exceptions to
the Regional Director's supplemental decision and
certification of representative and a request for
review thereof, in which the Respondent requested
the Board to reverse the Regional Director and set
the election aside, or in the alternative order a
hearing at which additional evidence could be
taken, or that the investigation be reopened for the
purpose of obtaining additional evidence and infor-
mation . On September 22, 1967, the Board denied
the Respondent's request for review on the ground
that it raised no substantial issue warranting review.
On April 2, 1968, the Respondent filed with the
Board in Washington, D.C., motions for recon-
sideration by the Board of its September 1967 deni-
al of review and requesting a hearing in the
representation case for the purpose of adducing as-
serted newly discovered evidence. The Respondent
also moved. for indefinite postponement and stay of
proceedings in the unfair labor ractice case. To
these the General Counsel filed oppositions. On
April 8, 1968, the Board denied the Respondent's
motions by order in which it stated inter aiia that,
... the offer of proof made relates to evidence
not shown to be newly discovered and ... [the
motion for reconsideration] is in any event
lacking in merit . The employer's motion for a
hearing in that case is likewise denied.'
The Unfair Labor Practice Case
On January 10, 1968, the Union filed a charge of
violation of Section 8(a)(1) and (5) of the Act al-
leging that the Respondent refused to bargain with
the Union. On February 29, 1968, the General
Counsel issued a complaint and notice of hearing in
which he alleged that on or about November 5,
1967, the Union requested the Respondent to bar-
gain with the Union and to furnish the Union cer-
tain information concerning conditions of employ-
ment in the bargaining unit, and that on or about
November 29, 1967, the Respondent refused to
bargain and to furnish such information. On March
11, 1968, the Respondent filed its answer to the
complaint in which it admitted certain allegations
of the complaint , denied others, and as to the
remainder asserted that it did not have sufficient in-
formation to form a belief as to the allegations.
Thus, the Respondent admitted the allegations
respecting jurisdiction and its engagement in com-
merce, denied that the Union was certified as the
exclusive representative in an appropriate unit, and
asserted that the Respondent had insufficient infor-
mation to form a belief as to the allegations in the
complaint that the Union was a labor organization
2
These motions of the Respondent were filed simultaneously with the
Respondent 's reply to a motion by the General Counsel for summary
judgment in the unfair labor practice case, as indicated hereinafter The
Board 's order does not specifically refer to the Respondent's motion for
1051
and that the Union had requested the Respondent
to bargain and to furnish it information and that the
Respondent had refused to furnish the information.
As a further defense the Respondent specifically as-
serted the invalidity of the certification by reason of
the overruling of its objections to the election and
denial of hearing with respect thereto. Con-
sequently the answer denied the commission of un-
fair labor practices and requested dismissal of the
complaint.
Under date of March 14, 1968, counsel for the
General Counsel filed a Motion for Summary
Judgment on the ground that there is no genuine
issue of material fact and that counsel for the
General Counsel is entitled to judgment as a matter
of law. In the alternative counsel for the General
Counsel moved for an order to show cause as to
why the certain allegations of the answer should not
be stricken as sham, false, and contrary to the
Respondent's knowledge of the facts.
On March 18, 1968, I issued an Order directing
all parties to show cause on or before April 1,
1968, as to whether the motion for summary
judgment should be granted. In addition the
Respondent was directed to state specifically
whether it contested the authenticity of any of the
exhibits attached to the General Counsel's motion
for summary judgment. Among these exhibits is a
copy of a letter dated November 5, 1967, from a
representative of the Union to the Respondent en-
closing copies of a proposed bargaining agreement,
requesting that the Union be supplied with certain
information relating to employment conditions of
employees within the bargaining unit, notifying the
Respondent of the employee composition of the
Union's negotiating committee, and requesting a
meeting for the purposes of negotiation. Also
among the exhibits attached to the motion is a copy
of a reply on the Respondent's letterhead from its
President Arthur H. Davidson acknowledging
receipt of the November 5 letter and advising the
Union that the Company did not intend to meet
with it since the Respondent's position was that the
Union was not the legal representative of the em-
ployees "for the reasons we have previously raised
with the Local Regional Director of the NLRB."
On April 1, 1968, the General Counsel filed
proposed findings of fact, conclusions of law, and
recommended order in support of, and on April 2,
1968, the Respondent filed a brief in opposition to,
the General Counsel's motion for summary
judgment. These have been considered.
The Respondent did not comply with the order of
the Trial Examiner directing the Respondent to
state specifically in any response to the order to
show cause whether it contested the authenticity of
postponement and stay of the unfair labor practice case, but I assume that
this was also denied. However, if the motion is deemed to have been ad-
dressed to me, I deny it at this time
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the exhibits attached to the motion for sum-
mary judgment; nor does the Respondent's brief
suggest any basis for questioning their authenticity.
In view of this action the exhibits are deemed to be
authentic.
Ruling on Motion for Summary Judgment
The Respondent's basic contention is that the
certification is invalid and that it is therefore under
no obligation to bargain with the Union. However,
it is clear that all material issues of fact and law in
this regard have been decided by the Board. Thus,
the questions as to the appropriateness of the unit,
the appropriateness of an election, the merit of the
Respondent 's objections to the election, and
whether the Union should be certified as the collec-
tive-bargaining representative were decided by the
Board in the representation proceeding. It is
established Board policy in the absence of newly
discovered or previously unavailable evidence or
special circumstances not to permit litigation be-
fore a Trial Examiner in an unfair labor practice
case of issues which were or could have been
litigated in a prior related representation proceed-
ing.3 This policy is applicable even though no for-
mal 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 by the ob-
jections .' And that there are no such issues here has
been decided by the Board several times . In these
circumstances the Board's disposition of the
representation matter is the law of the case at this
stage of the proceeding. The correspondence at-
tached to the motion for summary judgment, to
which reference has been made, establlshin$ that
the Union requested the Respondent to bargain fol-
lowing the certification and that the Respondent
refused to do so, there is no issue litigable before a
Trial Examiner and therefore no matter requiring
hearing .' Summary judgment is therefore ap-
propriate and is hereby entered against the Respon-
dent.
The General Counsel's motion to strike various
portions of the answer is denied.
On the basis of the record I make the following
further:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent , a Wisconsin corporation , is engaged
in the business of finishing metal products at its
Howard Johnson Company, 164 NLRB 801, Metropolitan Life Insurance
Company, 163 NLRB 579. See Pittsburgh Plate Glass Co. v N.L.R.B., 313
U.S. 146 ( 1941), Board Rules, Sections 102 .67(f) and 102.69(c)
4 0 K Van Storage , Inc., 127 NLRB 1537, enfd . 297 F 2d 74 (C.A. 5,
1961). See N . L.R.B v Air Control Products of St. Petersburg , Inc, 335
F.2d 245 , 249 (C A 5, 1964) "If there is nothing to hear , then a hearing is
a senseless and useless formality ." See also N.L.R.B . v Tennessee Packers,
plant facilities in Milwaukee and New Berlin,
Wisconsin.
During the past calendar year, a representative
period, Respondent sold materials and services,
valued in excess of $50,000, to firms located in the
State of Wisconsin, which firms each made sales
and shipments of goods and services in interstate
commerce directly to points outside the State of
Wisconsin, valued in excess of $50,000 per year.
At all times material herein, Respondent is and
has been an employer as defined in Section 2(2) of
the Act, engaged in commerce and in operations af-
fecting commerce as defined in Section 2(6) and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
At all times material herein the Union is and has
been a labor organization as defined in Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, Arthur H. Davidson
has occupied the position of president of Respon-
dent, and has been and is now an agent of Respon-
dent, acting on its behalf, and is a supervisor within
the meaning of Section 2(11) of the Act.
All production and maintenance employees at
the Employer's facilities located in Milwaukee and
New Berlin, Wisconsin, excluding office clerical
employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
On August 30, 1967, the Union was certified by
the Board as the exclusive collective-bargaining
representative for purposes of collective bargaining
ofthe employees in the appropriate unit. The
Union is consequently the representative of the em-
ployees in the appropriate unit within the meaning
of Section 9(a) of the Act.
On or about November 5, 1967, the Union
requested the Respondent to bargain collectively
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment in the appropriate unit and requested in-
formation from the Respondent regarding employ-
ment conditions in the appropriate unit. On or
about November 24, 1967, the Respondent refused
to bargain collectively with the Union and to
furnish the requested information.
By such action the Respondent refused to bar-
gain collectively with the representative of its em-
Inc., 379 F 2d 172, 179 (C.A 6, 1967), Krieger-Ragsdale & Company, 159
NLRB 490, enfd 379 F 2d 517 (C.A 7, 1967), cert . denied 389 U S. 1041.
S The Respondent 's assertions in its answer that it "does not have infor-
mation sufficient to form a belief as to the truth " of allegations in the com-
plaint to the effect that the Union requested the Respondent to bargain and
to furnish certain information and that the Respondent refused to furnish
the information are frivolous in the light of the correspondence
WACHO MFG. CO.
ployees in violation of Section 8(a)(5) of the Act
and interfered with, restrained , and coerced em-
ployees in violation of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices effect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings and conclusions and
the entire record in the case, I recommend that the
Board issue the following:
RECOMMENDED ORDER
A. For purposes of determining the effective
period of the certification the initial year of certifi-
cation shall be deemed to begin on the date the
Respondent commences to bargain in good faith
with the Union as the recognized bargaining
representative in the appropriate unit.6
B. Wacho Mfg. Co ., Milwaukee and New Berlin,
Wisconsin , its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Molders and Allied Workers Union,
AFL-CIO, as the exclusive collective -bargaining
representative of the employees in the following ap-
propriate unit:
All production and maintenance employees at
the Employer 's facilities located in Milwaukee
and New Berlin , Wisconsin, excluding office
clerical employees , guard and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said ap-
propriate unit as the 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 In-
ternational Molders and Allied Workers Union,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit with respect to
rates of pay, wages , hours of work, and other terms
and conditions of employment , and embody in a
signed agreement any understanding reached.
(b) Post at its Milwaukee and New Berlin,
Wisconsin , plants copies of the attached notice
marked ndix .11 7 Copies of said notice, on
forms provided by the Regional Director for Region
30, after being duly signed by an authorized
representative , shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained 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 the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 30,
in writing , within 20 days from the receipt of this
1053
Decision, what steps have been taken to comply
herewith."
s The purpose of this provision is to ensure that the employees in the ap-
propriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Co , Inc , 136
NLRB 785, Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F 2d 600 (C A. 5, 1964), Burnett Construction Co, 149 NLRB
1419, 1421, enfd 350 F 2d 57 (C A 10, 1965)
r In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
9 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify the Regional Director for
Region 30, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with International Molders and Allied Workers
Union, AFL-CIO, as the exclusive collective-
bargaining representative of all the following
employees:
All production and maintenance em-
ployees at our facilities located in Milwau-
kee and New Berlin , Wisconsin, excluding
office clerical employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT interfere with the efforts of
said Union to negotiate for or represent the
employees in the appropriate bargaining unit
as exclusive collective -bargaining representa-
tive.
WE WILL bargain collectively with the Union
as the exclusive bargaining representative of
the employees in the appropriate unit and if an
understanding is reached we will sign a con-
tract with the Union.
WACHO MFG. CO.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Second Floor, Commerce Building, 744
North Fourth Street, Milwaukee, Wisconsin 53203,
Telephone 272-3861.