Difco Laboratories, Inc.

National Labor Relations Board - Board Decisions

Sep 1, 1965

154 N.L.R.B. 921 (N.L.R.B. 1965)

DIFCO LABORATORIES, INC. 921
Difco Laboratories, Inc. and Local 7-389, International Union,
Oil, Chemical and Atomic Workers, AFL-CIO. Case No. 7-CA-
5189. September 1, 1965
DECISION AND ORDER
On June 22, 1965, Trial Examiner Lowell Goerlich issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision.
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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has considered the Trial Examiner's Decision and the
entire record in this case, including the exceptions of the Respondent,
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 hereby adopts as
its Order the Recommended Order of the Trial Examiner, and orders
that the Respondent, Difco Laboratories, Inc., Detroit, Michigan,
its officers, agents, successors, and assigns shall take the action set
forth in the Trial Examiner's Recommended Order.
1 See O.K. Van and Storage, Inc., 127 NLRB 1537 , 1539, enfd . 297 F. 2d 74 (C.A. 5).
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
On a charge duly filed on May 4 , 1965 , by Local 7 -389, International Union,
Oil, Chemical and Atomic Workers, AFL-CIO, herein called the Union , the Gen-
eral Counsel of the National Labor Relations Board by the Acting Regional
Director for Region 7 issued a complaint, together with a notice of hearing dated
May 6, 1965 , copies of which were duly served upon the parties . The complaint
alleges, in substance that Difco Laboratories , Inc., herein called the Respondent,
refused to bargain with the Union in violation of Section 8(a)(1) and ( 5) of the
Act in that the Respondent did refuse and continues to refuse to recognize the
Union and bargain with it as the exclusive collective -bargaining representative of
all the employees in appropriate units certified by the Acting Regional Director
on November 10, 1964 , and April 6 , 1965 , in Case No. 7-RC-6383 and 7-RC-6582
respectively . The Respondent filed an amended answer dated May 27, 1965, in
which it admitted the service of the charge and that: the Respondent was a corpo-
ration duly organized under and existing by virtue of the laws of the State of
Michigan ; its principal place of business was at 920 Henry , Detroit , Michigan;
154 NLRB No. 75.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was engaged in the manufacture, sale, and distribution of biological- and bac-
teriological media, materials and supplies; the Respondent -was and is an employer
engaged in commerce within the meaning of'Section 2(2), (6), and (7) of the
Act; and the Union was and is a labor organization within the meaning of Section
2(5) of the Act. The Respondent denied that it was violating either Section 8(a)
(1) or 8(a)(5) of the Act.
As affirmative defenses the Respondent alleged in its amended answer that: in
respect to Case No. 7-RC-6383, the unit certified therein was not an appropriate
unit for the purposes of collective -bargaining as determined in the Decision and
Direction of Election; the Decision and Direction of Election in said case was
based upon the extent of organization as controlling contrary to Section 9(c)(5)
of the-Act; the election conducted on September 18, 1964, pursuant to such Decision
and Direction of Election was improperly conducted in that the employees eligible
to vote therein were improperly influenced by the Union and its representatives
as a result of which, the employees were not given the free and untrammeled oppor-
tunity to vote according to their free will and choice at said election; the Respond=
ent's objections to conduct of election filed raised substantial and material issues
of fact upon which the Respondent was unlawfully denied a hearing by the Acting
Regional Director; and the Respondent's request for review of the Supplemental
Decision and Certification of Representatives filed with the Board was improperly
and unlawfully denied.
The Respondent further answered that the, Decision and Direction of Election
in Case No. 7-RC-6582 was erroneous in 'that: the 11 employees in the unit
found 'appropriate were professional employees and not technical employees; the
Board erred in refusing the Respondent's request for review; and the certification
issued by the Acting Regional Director on April 16, 1965, certifying the Union
as the collective-bargaining representative of employees in the unit found appro-
priate was in error and should be vacated. On June 1, 1965, the General Counsel
filed and served a motion for summary judgment on pleadings.
On June 4, 1965, Trial Examiner Lowell Goerlich issued and caused to be
served on all the parties an Order directing the Respondent on or before June 18.
1965, in writing, to show cause why the issues raised in the proceeding herein
should not be resolved wtihout any further hearing and why the motion for
summary judgment on pleadings should not be granted and in due course an
appropriate Trial Examiner's Decision be prepared and issued. The Order further
provided .that if the Respondent believed that there were any genuine issues open
for decision and not already pleaded or decided by the Board in Cases Nos.
7-RC-6383 and 7-RC-6582 the same should be set forth in writing by June 18,
1965, in the form of an offer of proof of the additional relevant facts upon which
the Respondent relied. In response to the Order to Show Cause. I received
Respondent's answer to Order to Show Cause dated June 15, 1965, in which the
Respondent stated that in opposition to the motion for summary judgment on
pleadings of the counsel for the General Counsel and in answer to the Order to
Show Cause, the Respondent rested upon the grounds stated in Respondent's
answer filed in these proceedings. A copy of Respondent's objections to conduct
of election filed in Case No. 7-RC-6383 was attached to the answer to order to
show cause and referred to therein.
In its amended answer to the complaint the Respondent admitted that on April 23,
1965, it transmittted a letter to the Union stating that after a conference with
the company officials, it had been determined to contest the various rulings of the
National Labor Relations Board made in connection with Cases Nos. 7-RC-6383
and 7-RC-6582 and "Accordingly, in order to present-the issue for determination,
we are compelled to refuse your request -for meetings at this time."
It appearing, therefore, that there are no issues of fact herein requiring•a hearing
before the Trial Examiner for` the purposes of issuing a decision, I deem this case
submitted for decision on the pleading's, the motion, papers, and the records in
Cases Nos. 7-RC-6383 and 7-RC-6582. The hearing herein 'heretofore set for
July 12, 1965, 10 a.m. (e.s.t.) is hereby canceled, and I make the following:
Rulings on the Motion .
The issues raised by Respondent's amended answer and answer to order to
show cause were previously raised and determined-by the Board in the underlying
DIFCO LABORATORIES, INC . 923
representation cases, 7-RC-6383 and 7-RC-6582. It is well settled that such
issues, absent newly discovered evidence none of which is offered here, may not
be relitigated in this case.'
It is apparent from the foregoing that there are no factual issues litigable before
me. Accordingly, the General Counsel's motion is granted on the basis of the entire
record herein, including _the representation cases, and I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION r•
The Respondent is a Michigan corporation engaged at 920 Henry, Detroit,
Michigan, in the manufacture, sale, and distribution of biological and bacterio-
logical media, materials, and supplies. During the calendar year 1964, which period
is representative of its operations, the Respondent purchased and caused to be
transported and delivered at its Detroit place of business materials and supplies
valued in excess of $50,000 which were transported and delivered to its Detroit
place of business directly from points located outside the State of Michigan and
the Respondent manufactured, sold, and distributed at its Detroit place of business
products valued in excess of $50,000 which were shipped from said-place of busi-
ness directly to points located outside the State of Michigan. I find that the
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.
It. THE LABOR ORGANIZATION INVOLVED _
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Representation Proceeding
The Units -
All employees in the tissue culture laboratory ( department 35) of the Respond-
ent's Detroit place of business, excluding all other employees, guards, and super-
visors 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.
All technical employees in departments 36, 42, and 43 of the Respondent's
Detroit place of business, excluding production and maintenance employees , tissue
culture laboratory employees, office clerical employees, salesmen , professional
employees, guards, and supervisors as defined in the Act, and all other employees
constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act .2
The Certification
On September 18, 1964, a majority of the employees in the unit found
appropriate in Case No. 7-RC-6383 by a secret ballot election conducted under
the supervision of the Acting Regional Director designated and selected the Union
as their representative for the purposes of collective bargaining with the Respond-
ent. Thereafter, on September 24, 1964, the Respondent filed objections to conduct
of election and on November 10, 1964, the Acting Regional Director issued his
Supplemental Decision overruling Respondent's objections to conduct of election
1 Pittsburgh Plate Glass Company v. N L.R.B., 313 U.S. 146 (1941) ; Metropolitan Life
Insurance Company, 141 NLRB 337, enfd 328 F 2d 820 (C.A 3) ; Metropolitan Life In;
aurance Company, 141 NLRB 1074, enfd 330 F 2d 62 (C.A. 6) ; Esquire, Inc. (Coronet
Instructional Films Division ), 109 NLRB 530, 538-539, enfd. 222 F. 2d 253 (C A. 7).
2 These units were found to have been appropriate for the purposes of collective bar-
gaining by the Acting Regional Director for Region 7 in Cases Nos. 7-RC-6383 and 7-RC-
6582, respectively. On September 11, 1964, the Board denied the Respondent's request
for review of the Decision and Direction of Election in Case No. 7-RC-6383 and, on
March 12, 1965, the Board denied the Respondent' s request for review of the Decision
and Direction of Election in Case No. 7-RC-6582. The appropriateness of the units may
not be relitigated in a related subsequent unfair labor practice proceeding Section
102.67 ( f) of the Board 's Rules and Regulations, Series 8, as amended.
1924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and certified the Union as the exclusive bargaining representative of employees
in the above-described unit . On November 27, 1964 , the Respondent filed a request
for review with the Board of the Supplemental Decision and Certification of
Representative above referred to and on December 14, 1964 , the Board denied
Respondent's request for review.
On March 29 , 1965 , a majority of the employees in the unit found to be
appropriate in Case No. 7-RC-6582 by a secret ballot election conducted under
the supervision of the Acting Regional Director designated and selected the Union
as their representative for the purposes of collective bargaining with the Respond-
ent. On April 6, 1965, the Acting Regional Director certified the Union as the
exclusive bargaining representative of the employees in the above-described unit.
The Union continues to be the exclusive collective -bargaining representative of the
employees in the above described units.
The Request to Bargain and the Respondent's Refusal
On or about April 12, 1965, and continuing thereafter , the Union has requested
the Respondent to bargain collectively with it as the exclusive collective -bargaining
representative of all employees in the above -described appropriate units. On or
about April 23, 1965, Respondent did refuse, and continues to refuse, to recognize
and bargain collectively with the Union as the exclusive collective-bargaining
representative of all employees in said unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, occurring in connection
with its operations set forth in section I, above, have a close, intimate, and sub-
stantial relation 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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that it cease and desist therefrom and
take affirmative action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and the entire record in the case , including
the representation proceedings , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. All employees in the tissue culture laboratory (department 35) of the Respond-
ent's Detroit place of business , excluding all other employees , guards, and super-
visors 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. All technical employees in departments 36, 42, and 43 of the Respondent's
Detroit place of business , excluding production and maintenance employees , tissue
culture laboratory employees, office clerical employees, salesmen, professional
employees , guards, and supervisors as defined in the Act, and all other employees
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. Since on or about April 12, 1965, the Union has been, and is, the exclusive
bargaining representative for the purposes of collective bargaining of employees
in the units described above.
6. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the above appropriate units on or about April 23, 1965,
and thereafter , 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.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case and in the representation proceedings, and pursuant to Section
DIFCO LABORATORIES, INC. 925
10(c) of the National Labor Relations Act, as amended , I recommend that the
Respondent , Difco Laboratories , Inc., its officers, agents , successors , and assigns
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 7-389, International Union Oil
Chemical and Atomic Workers , AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following units:
All employees in the tissue culture laboratory (department 35) of the Respond-
ent's Detroit place of business , excluding all other employees , guards, and super-
visors as defined in the Act.
All technical employees in departments 36, 42, and 43 of the Respondent's
Detroit place of business , excluding production and maintenance employees , tissue
culture laboratory employees , office clerical employees , salesmen, professional
employees, guards , and supervisors as defined in the Act, and all other employees.
(b) Interfering with the efforts of Local 7-389, International Union, Oil,
Chemical and Atomic Workers, AFL-CIO, to negotiate for or represent the
employees in the said appropriate units as the exclusive bargaining agent.
2. Take the following affirmative action , which it is found will effectuate the
policies of the Act:
(a) Upon request , bargain collectively with Local 7-389, International Union,
Oil, Chemical and Atomic Workers, AFL-CIO, as the exclusive representative of
all the employees in the appropriate unit described above with respect to rates
of pay, wages , hours of employment , and other conditions of employment and, if
an understanding is reached , embody such understanding in a signed agreement.
(b) Post at its Detroit place of business copies of the attached notice marked
"Appendix ." 3 Copies of said notice , to be furnished by the Regional Director
for Region 7, shall, after being duly signed by Respondent 's representatives, 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 the
Respondent to insure that said notices are not altered , defaced , or covered by any
other material.
(c) Notify the Regional Director for Region 7, in writing , what steps the
Respondent has taken to comply herewith .4
3 In the event that this Recommended Order be 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 Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
4 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, In writing , within 10 days
from the date 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local 7- 389, International
Union, Oil, Chemical and Atomic Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining units described below.
WE WILL NOT interfere with the efforts of Local 7-389, International Union,
Oil, Chemical and Atomic Workers, AFL-CIO , to negotiate for or represent
as exclusive bargaining agent the employees in the bargaining units described
below.
WE WILL upon request, bargain with the above-named union, as the exclusive
bargaining representative of all the employees in the bargaining unit described
below with respect to rates of pay, wages, hours of employment, and other con-
ditions of employment , and if an understanding is reached , embody such -n
understanding in a signed agreement.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The bargaining units are:
All employees in the tissue culture laboratory (department 35) of the
Respondent's Detroit place of business , excluding all other employees,
guards, and supervisors as defined in the Act.
All technical employees in departments 36, 42, and 43 of the Respondent's
Detroit place of business , excluding production and maintenance employees,
tissue culture laboratory employees , office clerical employees, salesmen,
professional employees , guards and supervisors as defined in the Act, and
all other employees.
DIFCO LABORATORIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No.
226-3200.
Da-Lite Screen Company , Inc., and International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW-AFL-CIO. Case No. 13-CA-6595. Septem-
ber 2, 1965
DECISION AND ORDER
On March 31, 1965, Trial Examiner Leo F. Lightner issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in other unfair labor
practices and recommended that the complaint be dismissed as to them.
Thereafter, the General Counsel filed exceptions and a supporting brief
and the Respondent filed exceptions, and a supporting brief and a reply
brief to the General Counsel's exceptions.
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing 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 briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
i In view of the 8 ( a) (1) findings affirmed herein , the Board finds it unnecessary to pass
on the question of whether Foreman Schmidt's interrogation of employee Rich was an un-
lawful act of interrogation.
154 NLRB No. 76.