Westinghouse Learning Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 315 (N.L.R.B. 1969)

WESTINGHOUSE LEARNING CORP. 315
Westinghouse Learning Corporation ( Indiana) and
Local No. 4, International Union , United Plant
Guard Workers of America . Case 25-CA-3412
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On October 24, 1969, Trial Examiner Charles W.
Schneider issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . Thereafter, Respondent filed exceptions to
the Trial Examiner ' s Decision together with a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed . The rulings are hereby affirmed. The
Board has considered the Trial Examiner 's Decision,
the exceptions and the brief , and the entire record in
this case , and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner.
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 Respondent, Westinghouse
Learning Corporation (Indiana), Edinburg , Indiana,
its officers, agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THE REPRESENTATION PROCEEDING'
CHARLES W. SCHNEIDER , Trial Examiner : Pursuant to
a stipulation for certification upon consent election
executed by Westinghouse Learning Corporation
(Indiana ), the Respondent , and Local No. 4, International
Union, United Plant Guard Workers of America, the
Union, and approved by the Regional Director of 25 of
the National Labor Relations Board on November 8,
1968, an election under the supervision of the Regional
Director was held on November 20, 1968 among
employees of the Respondent in an appropriate unit
hereinafter described. Of the 22 eligible voters, 13 voted
for the Union, 8 voted against the Union, and 1 ballot
was challenged by the Union.
On November 25, 1968, the Respondent filed timely
objections to the election alleging coercive conduct by
union officials and other persons precluding a free choice
by employees in the election. The Respondent therefore
requested that the election be set aside. An administrative
investigation of the objections was conducted by the
regional office. All parties submitted evidence in support
of their positions. No formal hearing was held on the
objections.
On January 2, 1969, the Acting Regional Director
issued his report on objections and recommendations to
the Board , in which, after a recitation of evidence, the
Acting Regional Director found the Respondent's
objections to the election not to be sustained. He
thereupon recommended to the Board that the objections
be overruled and that the Union be certified as the
collective -bargaining representative.
On January 22, 1969, the Respondent filed with the
Board in Washington, D.C., exceptions to the Acting
Regional Director ' s report and recommendations, along
with a supporting brief.
On May 12, 1969, the Board issued a decision and
certification of representative in which the Board , in sum,
accepted the Acting Regional Director 's conclusions as to
the Respondent's objections and certified the Union as the
collective-bargaining representative in the appropriate
unit. The Board said in part,
Upon the entire record in this case, including the
Employer's exceptions to the Acting Regional
Director's Report, and the Employer's brief in support
thereof, the Board finds:
5. We conclude that the Employer's exceptions raise
no material or substantial issues of fact or law which
would warrant reversal of the Acting Regional
Director's findings , conclusions and recommendations,
or require a hearing.
THE UNFAIR LABOR PRACTICE CASE
On June 3, 1969, the Union filed the instant charge
alleging , inter alia , that since the certification the
Respondent had refused to bargain with the Union. On
July 17, 1969, the General Counsel, by the Regional
Director for Region 25 issued a Complaint and Notice of
Hearing alleging that the Respondent had committed
unfair labor practices in violation of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act by refusing to
bargain with the Union on request.
In due course the Respondent filed an answer and
amended answer in which it admitted substantial
allegations of the complaint , denying only allegations in
paragraph 5(b) and 5(c) of the complaint which asserted
'Official notice is taken of the record in the representation proceeding,
Case 25-RC-3905 , as the term "record" is defined in Section 102 .68 and Golden Age Beverage Co.. 167 NLRB No. 24, enfd. 415 F.2d 26 (C.A. 5);
102.69(f) of the Board's rules (Rules and Regulations and Statements of Intertype Co v. Peneio, 269 F. Supp 573 (D.C. Va., 1967); Intertvpe Co.
Procedure, National Labor Relations Board, Series 8 , as amended ). See v. N.L.R.B., 401 F.2d 41 (C A. 4); Follett Corp., 164 NLRB No. 47, enfd.
LTV Electrosystems. Inc., 166 NLRB No. 81, enfd . 388 F.2d 683 (C.A. 4), 397 F.2d 91 (C.A. 7); Section 9(d) of the National Labor Relations Act.
180 NLRB No. 54
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the majority of the Respondent's employees had
freely selected the Union as their collective-bargaining
representative and that the Union had been validly
certified as such representative, and allegations in other
paragraphs of the complaint to the effect that the
Respondent had engaged in unfair labor practices by
refusing to bargain with the Union.
On August 25, 1969, Counsel for the General Counsel
filed a motion to strike portions of Respondent's answer
and motion for summary judgment. The General
Counsel's motion requested (1) that the Respondent's
denial of paragraphs 5(b) and 5(c) of the complaint be
stricken on the ground that the Board had determined the
issue of the Union's representative status and that the
Respondent's denials in that connection were therefore
"sham"; and (2) that summary judgment be entered for
the reason that all material facts are either established by
the official record or admitted. On August 29, 1969, I
issued an order to show cause on the General Counsel's
motions returnable September 15, 1969, subsequently
extended to September 30, 1969. Thereafter the
Respondent filed a memorandum in opposition to General
Counsel's motion for summary judgment and to strike.
No other responses to the order to show cause have been
received
RULING ON MOTION FOR SUMMARY JUDGMENT
The Respondent admits its refusal to bargain with the
Union. Its position is that its objections to the election
and its request for hearing thereon were improperly
overruled or denied, that the Union consequently has not
been legally designated by the employees as their
collective- bargaining representative, and that the
certification of the Union as such representative therefore
is invalid. More specifically the Respondent contends that
the Regional Director did not consider material portions
of the Respondent's evidence, and further that he acted
upon evidence ex parse and improperly made credibility
findings. The Respondent also states that in the absence of
a hearing it cannot be said that the issues raised by its
objections have been litigated. It further asserts (citing in
this connection Pepsi-Cola Buffalo Bottling Co. v.
N.L.R.B., 409 F.2d 676), that even if litigated the issues
have not been resolved by the Board, for the reason that
the Board did not review the findings of the Regional
Director, and the certification is therefore faulty as a
matter of law. In addition the Respondent contends that
the Board's failure to review the Regional Director's
Decision was in derogation of the stipulation and
agreement of the parties, which provided that objections
to the election would be determined by the Board and not
by the Regional Director, and that for this reason also the
Union has not been properly certified. In summary the
Respondent's position is that it has raised substantial and
material issues which were not litigated or reviewed in the
representation case and thus require hearing, which to this
point has been denied.
I have concluded that the Respondent's contentions
may not be sustained by me.
It is established Board policy, in absence of newly
discovered or previously unavailable evidence not to
permit litigation before a trial examiner in a complaint
case of issues which were or could have been litigated in a
prior related representation proceeding.' This policy is
applicable even though no formal hearing on objections
has been provided by the Board. Such a hearing is not a
matter of right unless substantial and material issues are
raised.' The Board has determined that the Respondent's
objections presented no such issues here.
It is true that the Respondent contends that the issues
were not litigated or reviewed in the representation case.
However, upon this record I do not find that contention
sustained. Certainly the issues were presented for
determination, first to the Acting Regional Director in the
form of the objections and supporting material submitted
to him by the Respondent, and later to the Board in the
exceptions which the Respondent filed to the Acting
Regional Director's Report and Recommendations
disposing of objections. The Board's Decision purported to
pass on them. It is therefore found that the issues raised
by the Respondent's objections to the election were
litigated in the representation case within the meaning of
the Board's procedures. In any event, actual litigation of
an issue in a representation case is not required in order
to preclude litigation of that issue in a subsequent related
unfair labor practice proceeding. It is enough that the
issue could have been raised in the representation case. Cf.
Section 102.67(f) of the Board's rules.
We come then to the contention that the Board neither
decided the objections issues nor reviewed the Regional
Director's findings on them.
The Board 's rules authorize the Board in the case of a
stipulation for certification upon consent election to
determine whether exceptions to the Regional Director's
report on objections raise substantial and material issues.
Thus, Section 102.69(e) of the Rules provides, in part, as
follows:
[If] . . it appears to the Board that such exceptions do
not raise substantial and material issues with respect to
the conduct or results of the election, the Board may
decide the matter forthwith upon the record, or may
make other disposition of the case. If it appears to the
Board that such exceptions raise substantial and
material factual issues, the Board may direct the
regional director or other agent of the Board to issue
and cause to be served on the parties a notice of hearing
on said exceptions before a hearing officer.
In its Decision and Certification of Representative the
Board specifically found that the Respondent's exceptions
raised "no material or substantial issues of fact or law
which would . . . require a hearing." The Board therefore
appears to have acted in accordance with the authority
provided in Section 102.69(e) and to have decided the
case, as required by the stipulation.
With respect to the Respondent's contention that the
Board did not review the Regional Director's findings and
conclusions, it is to be noted that the Board's Decision
states that the Board made its findings "upon the entire
record in this case." This is to be interpreted as a
statement that the Board considered all the evidence in the
'Krieger-Ragsdale & Co, Inc., 159 NLRB 490 , enfd. 379 F 2d 517
(C.A 7), cert. denied 389 U.S 1041, N. L R B v . Macomb Pottery. 376
F.2d 450 (C A. 7), Howard Johnson Company , 164 NLRB No 121;
Metropolitan Life Insurance Company , 163 NLRB No. 71 See Pittsburgh
Plate Glass Co v N L.R.B. 313 US 146, 162, NLRB Rules and
Regulations, Section 102 67(f) and 102 69(c).
'O K Van and Storage , Inc, 127 NLRB 1537, enfd. 297 F 2d 74 (C A
5) See Air Control Window Products , Inc, 355 F 2d 245, 249 (C A 5)
"If there is nothing to hear, then a hearing is a senseless and useless
formality." See also N L R B v. Bala Shoe Co., 377 F 2d 821 , 826 (C A
4), ". . . there is no requirement, constitutional or otherwise , that there be
a hearing in the absence of substantial and material issues crucial to
determination of whether NLRB election results are to be accepted for
purposes of certification "
WESTINGHOUSE LEARNING CORP. 317
record, as well as the findings and recommendations of
the Regional Director. This would appear to constitute a
review of the Regional Director's action. The Pepsi-Cola
case, being based on the premise that the Board had not
reviewed the Regional Director's findings there, is
consequently inapplicable here. But even if the Board has
not reviewed the Regional Director's action, the Trial
Examiner has no authority to disregard the Board's
certification. If there has been error the Respondent may
request the Board for reconsideration and in the event of
adverse decision the Respondent may present its
contentions to the Circuit Court on a petition for review
or enforcement of any subsequent Board order.
In sum, then, it is found that the Board has concluded
on the basis of the record that the Respondent's
Objections did not raise material and substantial issues
requiring hearing, that all issues raised by the objections
have been litigated and resolved in the representation case,
that the Board reviewed the evidence, the record, and the
findings and recommendations of the Regional Director
and that such action complied with the Act and the
requirements of the stipulation for certification upon
consent election. At this stage of the proceeding these
determinations by the Board are the law of the case. It
follows that the Union has been properly certified as the
representative of the employees, that the Respondent has
raised no unresolved matters requiring an evidentiary
hearing, and that the Respondent's admitted refusal to
bargain with the Union is a violation of the Act. The
motion of Counsel for the General Counsel for summary
judgment is therefore appropriate and is granted.
However, the motion of counsel for the General Counsel
to strike portions of the Respondent ' s answer relating to
paragraph 5(b) and 5(c) of the Complaint is denied. Since
those portions of the Answer take issue with the
conclusion that the Union is the legal representative of the
employees in the appropriate unit, they must stand if the
Respondent is to have an issue to contest before the Board
and the Courts. They are therefore not sham issues.
Without such denials the Respondent would have nothing
to litigate, or any ground to oppose summary judgment.
That a pleading may not be substantiated by the evidence
is not a ground for striking it in the absence of a final
unreviewable judgment on the subject of the pleading.
Upon the record before me I therefore grant the motion
for summary judgment, deny the motion to strike portions
of the Answer, and make the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein , a corporation duly organized under , and existing
by virtue of, the laws of the State of Delaware.
At all times material herein , Respondent has
maintained its principal office and place of business at
Edinburg, Indiana, herein called the facility, and is, and
has been at all times material herein , continuously
engaged at said facility in the business of operating and
managing the Atterbury Job Corps Center.
During the past year, a representative period,
Respondent in the course and conduct of its business
operations, purchased, transferred, and delivered to its
facility, goods and materials valued in excess of
$50,000.00 which were transported to said facility directly
from States other than the State of Indiana.
Respondent is now, 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.
I1. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
All security patrolmen employees of Respondent
employed at the Atterbury Job Corps Center in Edinburg,
Indiana, excluding office clerical, food service,
maintenance , custodial, and warehouse employees,
technical and all other employees, professional employees,
sergeants, chiefs, captains, and other 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.
On November 20, 1968, a majority of the Respondent's
employees in the appropriate unit designated and selected
the Union as their bargaining representative by secret
ballot election, and on May 12, 1969, the Board certified
the Union as such representative. Since May 27, 1969, the
Respondent has refused to bargain with the Union as
collective-bargaining representative in the appropriate
unit. By such action the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) of the Act
and has interfered with, restrained and coerced its
employees in violation of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following:
RECOMMENDED ORDER
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate
unit.'
B. Westinghouse Learning Corporation (Indiana), its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local No. 4,
International Union, United Plant Guard Workers of
America, as the exclusive collective-bargaining
representative of the employees in the following
appropriate bargaining unit:
All security patrolmen employees of Respondent
employed at the Atterbury Job Corps Center in
Edinburg, Indiana, excluding office clerical, food
service, maintenance, custodial, and warehouse
employees, technical and all other employees,
professional employees, sergeants, chiefs, captains, and
other supervisors as defined in the National Labor
'the purpose of this provision is 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. See Mar-Jac Poultry Co , 136
NLRB 785, Commerce Co., d/b/a Lamar Hotel, 140 NLRB 226, 229, 328
F.2d 600 (C A. 5), cert denied 379 U.S. 817. Burnett Construction Co .
149 NLRB 1419, 1421, 350 F.2d 57 (C A. 10).
318 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
Relations Act
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such 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 Local No 4,
International Union, United Plant Guard Workers of
America, as the exclusive representative of all the
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its place of business in Edinburg, Indiana,
copies of the attached notice marked "Appendix "5 Copies
of said notice on forms provided by the Regional Director
for Region 25, shall, after being duly signed by an
authorized representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof and
maintained by the Respondent for a period of 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 25, in
writing, within 20 days from receipt of this recommended
Order what steps the Respondent has taken to comply
herewith.6
Dated By
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 with
Local No. 4, International Union, United Plant Guard
Workers of America, as the exclusive
collective-bargaining representative of all the following
employees
All security patrolmen employees employed at our
Atterbury Job Corps Center in Edinburg, Indiana,
excluding office clerical, food service, maintenance,
custodial, and warehouse employees, technical and all
other employees, professional employees, sergeants,
chiefs, captains, and other supervisors as defined in
the National Labor Relations Act
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
collective-bargaining representative
WE WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit, and if an
understanding is reached we will sign a contract with
the Union
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the Board , the findings , conclusions,
recommendations , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions , and order , and all objections thereto shall
be deemed waived for all purposes In the event that the Board 's 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 be changed to read "Posted pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board "
'In the event that these recommendations are adopted byte Board, this
provision shall be modified to read " Notify the Regional Director for
Region 25 , in writing, within 10 days from the receipt of this order what
steps the Respondent has taken to comply herewith "
APPENDIX
WESTINGHOUSE
LEARNING CORPORATION
(INDIANA)
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance
with its provisions may be uirected to the Board's Office,
614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921