Westchester Plastics of Ohio, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1967

165 N.L.R.B. 219 (N.L.R.B. 1967)

WESTCHESTER PLASTICS OF OHIO
Westchester Plastics of Ohio , Inc. and United
Electrical , Radio and Machine Workers of
America (UE). Case 8-CA-4475.
June 8,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS
AND ZAGORIA
Upon a charge filed by United Electrical, Radio
and Machine Workers of America (UE), herein
called the Union, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 8, issued his complaint, dated
February 16, 1967, against Westchester Plastics of
Ohio, Inc , herein called the Respondent, alleging
that the Respondent had engaged in and was
engaging in unfair labor practices affecting
commerce 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, complaint,
and notice of hearing before a Trial Examiner were
duly served on the Respondent and the Union.
The complaint alleges that on or about
December 21, 1966, the Union was duly certified as
the exclusive bargaining representative in an
appropriate unit , and that, since on or about
December 16, 1966, and at all times thereafter,
Respondent has refused to meet and bargain with
the Union, although the Union has requested it to do
so. On February 24, 1967, Respondent filed its
answer admitting that it refused to bargain, upon
request, following the Union's certification, but
denying that the Union had been designated by a
majority of the employees or validly certified by the
Regional Director as the exclusive bargaining
representative, or that it has at all times since the
certification been the representative of the
employees in the appropriate bargaining unit.
On March 30, 1967, the General Counsel moved to
have this proceeding transferred to the Board for
issuance of a Decision and Order on the basis of the
pleadings without a hearing on the ground that no
material issue of law or fact was in dispute since the
only matter in issue, the employee status of Larry
Stolzenburg, had been determined by the Board in a
representation proceeding. On March 31, 1967, the
Board, having duly considered the matter, ordered
that the proceeding be transferred to and continued
before it, and that cause be shown why the General
Counsel's Motion for Summary Judgment should not
be granted. On April 14, 1967, Respondent filed with
the Board an Opposition to Motion for Summary
Judgment, contending that Section 10(b) of the Act
requires a hearing in the litigation of unfair labor
practices and a denial of a hearing herein would, by
' 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
219
precluding Respondent from adducing additional
relevant evidence which it now offers via an affidavit
by leadman Robert Truesdale, deprive Respondent
of due process. For the reasons set forth below, the
Board' finds no merit in the Respondent's position
and grants the Motion for Summary Judgment.
Upon the basis of the aforementioned pleadings
and the entire record in this case, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation with its
principal office and place of business at
Wapakoneta, Ohio, where it is engaged in the
custom compounding of thermoplastics. In the
course of its business, Respondent annually ships its
products valued in excess of $50,000 directly to
points outside the State of Ohio and purchases and
receives goods valued in excess of $50,000 from
outside the State of Ohio. Respondent admits, and
we find, that it 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.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of
America (UE) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
On January 19, 1966, the Respondent and the
Union executed, and the Regional Director
approved, a Stipulation for Certification upon
Consent Election, and pursuant thereto, on
February 4, an election was conducted among the
employees in the following stipulated unit:
All production and maintenance employees at
the Employer's two plants in Auglaize County,
Ohio, including leadmen and laboratory
employees, but excluding all other employees,
all office clerical employees, professional
employees, guards and supervisors as defined
in the Act.
Upon the conclusion of the balloting, the parties
were furnished a tally of ballots which showed that
of approximately 41 eligible voters, 40 cast ballots, of
which 20 were for and 20 against the Union. The tally
did not include the ballot of Larry J. Stolzenburg,
who was initially challenged by the Board agent
conducting the election because Stolzenburg had
arrived after the close of the polls following one of
the early sessions of the split-session election. At the
165 NLRB No. 30
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion of the balloting, but before the ballots
were counted, the Union and the Respondent agreed
to exclude Stolzenburg's challenged ballot upon the
Respondent's representation that Stolzenburg had
been terminated prior to the election. During the
course of the investigation conducted on objections
filed by the Union to conduct affecting the results of
the election, the Union raised an issue regarding the
ballot cast by Stolzenburg, contending that he was
eligible to vote, and that the Respondent had
misrepresented his status as an employee before the
ballots were counted.
On March 17, 1966, the Regional Director issued
his Report on Objections, recommending to the
Board that the Union be held to its postelection
agreement relating to the eligibility of Stolzenburg,
and that the objection based upon the failure of the
Regional Director to include his challenged ballot in
the tally of ballots be overruled. Thereafter, the
Union filed exceptions to the Regional Director's
report, urging that a hearing be held to resolve the
issue raised by its objection.
The Board, on June 1, 1966, after due
consideration in the matter, issued an Order
Directing Hearing to resolve the issues raised by the
challenge to Stolzenburg's ballot. Pursuant to notice
and in conformance with the Board's Order, a
hearing was conducted on July 12, 1966, before a
Hearing Officer of the National Labor Relations
Board. On August 30, the Hearing Officer issued his
Report on Challenged Ballot in which he
recommended that the challenge to Stolzenburg's
ballot be overruled and that the ballot be counted.
On December 9, 1966, the Board issued its Decision
and Direction' in which it adopted the
recommendations of the Hearing Officer and
directed the Regional Director for Region 8 to open
and count the ballot of Stolzenburg, and thereafter to
prepare and cause to be served on the parties a
revised tally of ballots, including Stolzenburg's
ballot therein, and, if according to the revised tally,
the Union had received a majority of the valid ballots
cast in the election, to certify the Union as the
exclusive bargaining agent for the employees in the
appropriate unit. Thereafter, on December 16, 1966,
the Regional Director opened and counted the ballot
in question, issued a revised tally of ballots showing
the Union had received a majority of the valid votes
cast, and on December 21 issued a Certification of
Representative to the Union.
B. The Refusal to Bargain
Beginning on or about December 16, 1966, and
continuing to date, the Union has requested, and is
requesting, that Respondent meet and bargain with
it with respect to the wages, hours, and working
conditions of the employees in the appropriate unit.
The Respondent admittedly declined, and has
continued to decline, through its representative and
agent, Donald W. Rhind, to bargain with the Union
since that time.
As noted, Respondent affirmatively defends the
allegations in the complaint on the ground that the
Board erred in finding that Stolzenburg was an
employee and eligible to vote in the representation
election. It further urges a hearing herein for the
limited purpose of presenting testimonial evidence
of leadman Robert Truesdale regarding
Stolzenburg's employment status.'
In the absence of newly discovered or previously
unavailable evidence, issues which were or could
have been raised in a related representation
proceeding may not be relitigated in an unfair labor
practice proceeding.4 Admittedly, the issue which
Respondent seeks to raise in the instant proceeding
relates to the correctness of the Board's disposition
of the challenge to Stolzenburg's ballot. Inasmuch as
the Respondent has already litigated this issue, and
there is no allegation that the evidence which it now
seeks to offer is either newly discovered or was
previously unavailable, we find no merit in
Respondent's contention regarding the necessity of
a hearing before a Trial Examiner. Accordingly, as
all material issues herein have been decided by the
Board or admitted in the answer to the complaint,
the General Counsel's Motion for Summary
Judgment is hereby granted.
Accordingly, we find, on the basis of the Board's
Decision, that the Union received a majority of the
valid ballots cast in the election on February 4, 1966.
Since it is thus apparent that Respondent was
obligated to meet and bargain with the Union, upon
request, we find that the Respondent's refusal, on
and after December 16, 1966, to bargain collectively
with the Union as the exclusive bargaining
representative of the employees in the appropriate
unit was and is violative of Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in
section III, supra, occurring in connection with the
operations of the Respondent described in section I,
supra, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the
2 Cases 8-RM-439 and 8-RC-6170, not published in printed
volumes of Board Decisions.
Y In substance , Truesdale alleges that in January 1966 he had a
conversation with Plant Manager Rhind about no longer using
part-time employees However, Truesdale admits that the only
statement he ever made to Stolzenburg was that he did not have
any work for him, but did not tell him he was fired or give him any
other reason for not recalling him In addition, the record shows
that Truesdale asked Stolzenburg to report for work on
February 9, following the election In these circumstances, and
even if we were to accept as true Respondent's proffered
evidence , it would not serve to alter the determination reached in
the representation proceeding.
a Pittsburgh Plate Glass Co. V. N.L.R B, 313 U S. 146, Collins
& Aikman Corporation, 160 NLRB 1750, United States Rubber
Company, 155 NLRB 1298
WESTCHESTER PLASTICS OF OHIO
several States and lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Westchester Plastics of Ohio, Inc., is an
employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. United Electrical , Radio and Machine Workers
of America (UE) is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All production and maintenance employees at
the Respondent 's two plants in Auglaize County,
Ohio , including leadmen and laboratory employees,
but excluding all other employees , 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. At all times since December 16, 1966, the
Union has been the representative for the purpose of
collective bargaining of a majority of the
Respondent 's employees in the appropriate unit.
5. By refusing to bargain collectively with the
Union as the exclusive representative of the
employees in the appropriate unit on and after
December 16, 1966 , 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. The aforesaid unfair labor practices are unfair
labor practices affecting 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 adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent , Westchester
Plastics of Ohio, Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Electrical, Radio and Machine Workers of America
(UE) as the exclusive bargaining representative of
the employees in the following appropriate unit:
All production and maintenance employees at
the Respondent 's two plants in Auglaize
County , Ohio, including leadmen and laboratory
employees , but excluding all other employees,
all office clerical employees , professional
employees , guards and supervisors as defined
in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their right to bargain collectively through said Union.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with United
Electrical , Radio and Machine Workers of America
221
(UE) as the exclusive representative of the
employees in the appropriate unit found above and,
if an understanding is reached , embody such
understanding in a signed agreement.
(b) Post at its plants in Auglaize County, Ohio,
copies of the attached notice marked "Appendix."'
Copies of said notice , to be furnished by the
Regional Director for Region 8, after being duly
signed by Respondent 's representative , shall be
posted by it 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 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
5 In 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 "
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 our employees that:
WE WILL bargain collectively , upon request,
with United Electrical , Radio and Machine
Workers of America (UE) as the exclusive
bargaining representative of all employees in
the bargaining unit described below concerning
rates of pay , wages, hours of employment, and
other conditions of employment and, if au
understanding is reached, embody such
understanding in a signed agreement. The
appropriate bargaining unit is:
All production and maintenance
employees at our two plants in Auglaize
County, Ohio , including leadmen and
laboratory employees , but excluding all
other employees , all office clerical
employees , professional employees , guards
and supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively as
aforesaid , nor will we , in any like or related
manner , interfere with , restrain , or coerce our
employees in the exercise of their right to
bargain collectively through said Union.
Dated By
WESTCHESTER PLASTICS
OF OHIO, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
altered, defaced, or covered by any other material. communicate directly with the Board 's Region
If employees have any question concerning this Office, 720 Bulkley Building, 1501 Euclid Avem,
notice or compliance with its provisions , they may Cleveland, Ohio 44115, Telephone 621-4465.