Athbro Precision Engineering Corp.

National Labor Relations Board - Board Decisions

Nov 27, 1968

173 N.L.R.B. 995 (N.L.R.B. 1968)

ATHBRO PRECISION ENGINEERING
Athbro Precision Engineering Corp. and International
Union of Electrical , Radio and Machine Workers,
AFL-CIO. Case 1-CA-6349
November 27, 1968
DECISION AND ORDER
On August 19, 1968, Trial Examiner Charles W.
Schneider issued his Decision on a Motion for
Summary Judgment in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Charging Party
also filed exceptions to the Decision.
The Board has considered the Trial Examiner's
Decision, the exceptions and brief, and the entire
record in this case,' and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
mer.2
Remedy
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 year of certification
as beginning on the date the Respondent commences
to bargain in good faith with the Union as the
recognized bargaining representative in the appro-
priate unit. See Mar-Jac Poultry Company Inc., 136
NLRB 785, Commerce Company, d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A 10).
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, and hereby
orders that the Respondent, Athbro Precision En-
gineering Corp., Sturbridge, Massachusetts, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order.
1 A transcript of proceedings of the district court action referred to
in the Trial Examiner 's Decision was submitted by the Respondent. The
Board has accepted the transcript and considered it as a part of the
record herein
2 The Respondent's exceptions are addressed primarily to the
validity of the Board 's certification in the prior related representation
proceeding It argues comprehensively against the propriety of the
995
District Court 's action in the representation case It also argued the
point in its memorandum to the Board of January 29, 1968 See 171
NLRB No . 4, fn 3 In that Decision , we accepted the district court's
order as the law of this case . Accordingly , we adopt the Trial
Examiner 's Decision
On October 28, 1968 , the Respondent filed with the Board a Motion
to Reopen the Record . The motion is granted . The evidence offered has
been made a part of the record of this proceeding and has been
considered in reaching our decision herein
TRIAL EXAMINER'S DECISION
THE REPRESENTATION PROCEEDING'
Upon petition filed on March 13, 1967, by International
Union of Electrical Radio and Machine Workers, AFL-CIO,
herein called the Union, the Regional Director for Region 1 of
the Board on April 4, 1967, approved a Stipulation for
Certification Upon Consent Election executed by the Athbro
Precision Engineering Corporation, Sturbridge, Massachusetts,
herein called the Respondent, and by the Union. The
appropriate bargaining unit was stipulated to be the unit set
out hereinafter
Pursuant to the stipulation, an election by secret ballot was
conducted on May 3, 1967, under the direction and super-
vision of said Regional Director. There were approximately 41
eligible voters; 20 cast ballots for, and 18 cast ballots against,
the Union There was 1 challenged ballot and no void ballots
The challenged ballot was not sufficient to affect the results of
the election Thereafter, on May 10, 1967, the Respondent
filed timely objections to conduct affecting the results of the
election, alleging that certain conduct of the Board agent gave
the appearance and impression of irregularity On June 1,
1967, the Regional Director issued a Report on Objections in
which he stated that he had conducted an investigation of the
Respondent's objections and found no possibility that the
Board agent's conduct could have given an appearance or
impression of irregularity The Regional Director consequently
found the Respondent's objections to be without merit and
recommended to the Board that they be overruled in their
entirety and that a Certification of Representative be issued to
the Union.
Thereafter, on June 8, 1967, the Respondent filed timely
exceptions with the Board to the Regional Director's Report
on Objections On August 1, 1967, the Board issued its
Decision, Order, and Direction of Second Election sustaining
Respondent's objections. With respect to the Regional Direc-
tor's findings and recommendations the Board said " . . in
conducting representation elections [the Board] must main-
tain and protect the integrity and neutrality of its procedures.
The commission of an act by a Board Agent conducting an
election which tends to destroy confidence in the Board's
election process , or which could reasonably be interpreted as
impugning the election standards we seek to maintain, is a
sufficient basis for setting aside that election." The Board
therefore set the election aside and directed that a second
election be held.
1 Administrative or official notice is taken of the record in the
representation proceeding , Case 1-RC-9469, as the term "record" is
defined in Sections 102.68 and 102 69(f) of the Board's Rules (Rules
and Regulations and Statements of Procedure, National Labor Relations
Board, Series 8 as revised January 1 , 1965 ). See LTV Electrosystems,
Inc, 166 NLRB No. 81, Golden Age Beverage Co., 167 NLRB No. 24,
Intertype Co. v. Pennello, 269 F.Supp . 573 (D C. Va.. 1967), Follett
Corporation, 164 NLRB 378, enfd. 397 F 2d 91 (C.A 7, 1968), Section
9(d) of the NLRA
173 NLRB No. 152
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union thereupon filed a complaint with the United
States District Court for the District of Columbia seeking a
declaratory judgment to the effect that the election was valid,
and praying that the Board be ordered to issue a certification
to the Union and be enjoined from holding a second election
On January 17, 1968, the district court issued an order and
judgment holding the election to be valid and directing the
Board to certify the Union. On April 24, 1968, the Board
issued a Supplemental Decision, Order, and Certification of
Representative in which it accepted the order of the district
court as the law of the case and accordingly certified the
Union as the bargaining representative in the appropriate unit
THE UNFAIR LABOR PRACTICE PROCEEDING
On May 29, 1968, the Union filed the unfair labor practice
charge involved in the instant case alleging that the Re-
spondent refused to bargain
On June 17, 1968, the Regional Director for Region 1
issued a complaint on the unfair labor practice charge. The
complaint alleged that the Respondent had violated Section
8(a)(1) and (5) of the Act by refusing the Union's request to
bargain On June 28, 1968, the Respondent filed its answer to
the complaint in which it admitted most of the material
allegations of the complaint but denied others
In its answer, the Respondent admitted the filing and
service of the unfair labor practice charge, the jurisdictional
allegations of the complaint, the fact of the election and
certification, the appropriateness of the bargaining unit, that a
request to bargain was made, and that the Respondent had
refused to bargain with the Union for the purpose of securing
judicial review, maintaining that the election and certification
are invalid. Consequently the Respondent denied the com-
mission of unfair labor practices
On July 10, 1968, counsel for the General Counsel filed a
Motion for Summary Judgment, subsequently submitted to me
for disposition, asserting that there are no litigable issues of
fact requiring a hearing
On July 12, 1968, I issued an Order to Show Cause on the
Motion of General Counsel for Summary Judgment in which
the parties were directed to show cause in writing on or before
July 25, 1968, as to whether or not the Motion for Summary
Judgment should be granted. On July 22, 1968, Respondent
filed a Response to the Order to Show Cause on Motion of
General Counsel for Summary Judgment wherein the Re-
spondent urged that the motion be denied. No other responses
to the Order to Show Cause have been received.
RULING ON MOTION FOR SUMMARY JUDGMENT
The Respondent contends that the Motion for Summary
Judgment should be denied for the following reasons: (1) the
certification is invalid, presenting an issue of law between the
2 Howard Johnson Company, 164 NLRB 801 , Metropolitan Life
Insurance Company, 163 NLRB 579, See Pittsburg Plate Glass
Company v N L R B, 313 U S 146, 162 (1941), Rules and Regulations
and Statements of Procedure , National Labor Relations Board, Series 8
as revised January 1 , 1965, Section 102.67(f) and 102 69(c).
3 See also the following cases in which the use of summary judgment
procedure where there are no litigable issues has been enforced by the
Courts Baumntter Corp., 386 F.2d 117 (C.A 1, 1967), Puritan
parties, and the District Court was without jurisdiction, (2) a
hearing is now required because (a) that is the "unequivocal
mandate" of Section 10(b) of the Act, (b) the propriety of the
order of the District Court was not litigated before the Board
in the representation proceeding, (c) the Respondent is
entitled to proffer evidence of the failure of the District Court
to afford Respondent due process by not hearing Respondent
prior to ruling-such evidence being required by Section 9(d)
of the Act to be a part of the record, and (3) the issuance of
the certification upon the order of the District Court after the
Board's initial determination that the election was invalid
constitutes special circumstances warranting consideration by
the Trial Examiner and the Board.
I find the Respondent's contentions unsubstantiated.
The questions of the validity of the election and the
certification were decided by the Board in the representation
proceeding It is established Board policy, in the absence of a
newly discovered or previously unavailable evidence or special
circumstances not to permit litigation before a trial examiner
in an unfair labor practice case of issues which were or could
have been litigated in a prior related representation pro-
ceeding 2 The Respondent's objections to the certification
constitute an attempt to relitigate the Board's determination
and therefore must fall, unless supported by new evidence or
special circumstances.
There is no absolute right to a hearing under Section 10(b)
of the Act if there is no litigable issues. See Harry T Campbell
Sons' Corporation, 164 NLRB 247, fn 9, and cases there
cited 3 As the Court of Appeals said in the case of Air Control
Window 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 "
No hearing is required here. Within 10 days of the date of
this decision the Respondent may file with the Board in
Washington, D C , two certified copies of the record of the
district court proceedings for inclusion in the present record
That record will disclose whether the Respondent had op-
portunity to be heard before the district court, and no hearing
is necessary for such purpose As to the propriety of the order
of the district court, the Respondent had opportunity to raise
that question before the Board either by motion prior to the
issuance of the Board's Supplemental Decision, Order, and
Certification of Representative, or by request for reconsidera-
tion thereafter The record before me does not disclose that
the Respondent sought to do so In any event the Respondent
will have additional opportunity to present its views to the
Board in that respect, if it wishes, in exceptions to this
decision No reason is suggested as to why an evidential hearing
is needed for that purpose
The circumstances under which the Board, after having
initially set the election aside, issued its certification upon
order of the district court, are not special circumstances within
the meaning of the Board's principle All were within the
cognizance of the Board at the time of the certification It is
not within the province of the Trial Examiner to review the
Board's evaluation
Sportswear Corp. , 385 F 2d 142 (C.A. 3, 1967 ), LTV Electrosystems,
Inc, 338 F.2d 683 (C A 4, 1968), Aerovox Corp , 390 F 2d 653 (C A.
4, 1968 ), Neuhoff Bros Packers , Inc., 362 F 2d 611 (CA. 5, 1966),
Tennessee Packers , Inc, 379 F 2d 172 (C A 6, 1967), Follett Corp,
397 F 2d 91 (C A. 7, 1968), Krieger-Ragsdale & Company, Inc, 379
F 2d 517 (C A. 7, 1967), E-Z Davies Chevrolet, 395 F 2d 191 (C.A. 9,
1968), 68 LRRM 2228
ATHBRO PRECISION ENGINEERING 997
There being no unresolved issues requiring an evidential
hearing, or newly discovered or previously unavailable evidence
or special circumstances, the certification of the Board
constitutes the law of the case at this stage of the proceeding
and is binding on the Trial Examiner. The motion for summary
judgment is therefore granted, and I hereby make the
following further findings and conclusions
I JURISDICTION AND LABOR ORGANIZATION
It is admitted in the answer and therfore found (1) that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and (2) that the Union is a
labor organization within the meaning of the Act.
II THE APPROPRIATE BARGAINING UNIT
It is alleged in the complaint and admitted in the answers,
and therefore found, that all production and maintenance
employees employed by the Respondent at its Sturbridge,
Massachusetts, facility excluding office clerical employees,
professional employees, supervisors and guards as defined in
the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the
Act.
III THE UNION 'S REPRESENTATIVE STATUS
On May 3, 1967, a majority of the employees of Re-
spondent in the appropriate unit, by secret ballot election
conducted under the supervision of the Regional Director of
Region 1 of the Board, designated anc' selected the Union as
their representative for the purpose of collective bargaining
with the Respondent, and on April 24, 1968, the Board
certified the Union as the exclusive bargaining representative
of the employees in the appropriate unit
IV THE REQUEST TO BARGAIN AND THE REFUSAL
In further accord with allegations of the complaint admit-
ted in the answer it is found that (1 ) on or about May 10,
1968, the Union requested the Respondent to commence
negotiations and (2) on or about May 10 , 1968, the Re-
spondent refused, and continues to fail and refuse, to bargain
collectively with the Union as the exclusive representative of
the employees m the appropriate unit
By thus refusing to bargain the Respondent has interfered
with, restrained , and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act , thereby engaging in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(l) and (5) and 2 (6) and (7) of the Act.
Upon the basis of the foregoing findings and conclusions I
recommend that the Board issue the following.
ORDER
Athbro Precision Engineering Corporation, its officers,
agents, successors, and assigns, shall
1. Cease and desist from.
(a) Refusing to bargain collectively with International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
as the exclusive bargaining representative of the employees in
the following appropriate bargaining unit-
All production and maintenance employees employed by
the Respondent at its Sturbridge, Massachusetts, facility
excluding office clerical employees, professional employees,
supervisors and guards as defined in the Act.
(b) Interfering with the efforts of the Union to negotiate
for or represent employees as exclusive bargaining repre-
sentative.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act.
(a) Bargain collectively with International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit and, if
an understanding is reached, embody such understanding in a
signed agreement
(b) Post at its Sturbridge, Massachusetts, facihty copies of
the attached notice marked "Appendix i4 Copies of said
notice, to be furnished by the Regional Director for Region 1,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately
upon receipt thereof and maintained by it for at least 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 1, in writing,
within 20 days from the date of receipt of this Decision, what
steps the Respondent has taken to comply herewith.'
4In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for the
words " 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 Appeals Enforcing an Order" shall be substituted for the words
"a Decision and Order "
S 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 1, in writing, within 10 days from the date of
receipt of this Order, what steps the 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 National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Inter-
national Union of Electrical, Radio and Machine Workers,
AFL-CIO, as the exclusive collective bargaining representa-
tive of all our following employees:
All production and maintenance employees employed by
us at our Sturbridge, Massachusetts, facility excluding
office clerical employees, professional employees, super-
visors and guards as defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive
bargaining representative
WE WILL bargain collectively with the Union as ex-
clusive bargaining representative of the employees in the
appropriate unit and, if an understanding is reached, we will
sign a contract with the Union.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ATHBRO PRECISION This Notice must remain posted for 60 consecutive days
ENGINEERING CORP. from the date of posting, and must not be altered, defaced, or
(Employer) covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 20th Floor, John F.
Dated By Kennedy Federal Building, Cambridge & New Sudbury Streets,
(Representative) (Title) Boston, Massachusetts 02203, Telephone 223-3300.