Draper Corp.

National Labor Relations Board - Board Decisions

May 10, 1965

152 N.L.R.B. 520 (N.L.R.B. 1965)

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company brought from the East its capital, its officers, and its supervisors, it took over
the real estate but installed much new equipment and machinery and entirely differ-
ent manufacturing processes While it hired the employees of Rubber Corporation
it initiated a training program to teach these employees new skills, and with their new
skills installed higher rates of wages in consultation with the Union Its product is
admittedly superior to any of the products of Rubber Corporation. Furthermore, it
is a larger and expanding company with sound financing and its own labor relations
policy. It manufactures its own products, which are manufactured by its own
methods, from materials purchased from its own suppliers, and sold under its own
trademark to its own customers.
RECOMMENDED ORDER
Upon all the evidence and the legal authorities set forth above, I find that the
Company did not fail or refuse to bargain as alleged in the complaint . Therefore,
it is recommended that the complaint be dismissed in its entirety.
Draper Corporation and United Steelworkers of America, AFL-
CIO. Case No. 1-CA1-1806. May 10,196.5
DECISION AND ORDER
On March 2, 1965, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent and the Charging Party filed exceptions to the Trial
Examiner's Decision and the Respondent also filed a brief in support
of its 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 considered the Trial Examiner's Decision, the excep-
tions and brief, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommendations.
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
Respondent Draper Corporation, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On November 20, 1964, United Steelworkers of America, AFL-CIO, herein called
the Union, filed a charge against Draper Corporation, the Respondent herein, alleging
as a basis therefor that "since about November 10, 1964, the Employer [Respondent]
152 NLRB No 57
DRAPER CORPORATION 521
has violated the Act by refusing to bargain with the Charging Party [Union] pursuant
to the certification in Case No. 1-RC-7795." Thereafter, on December 3, 1964, the
General Counsel of the National Labor Relations Board, on behalf of the Board, by
the Acting Regional Director for Region 1, issued a complaint and notice of hearing
pursuant to Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq., herein called the Act, and Section 102 15 of the Board's Rules and
Regulations, Series 8, as amended. The complaint described certain acts by the
Respondent alleged to be unfair labor practices within the meaning of Section 8(a) (5)
and (1) of the Act, as follows:
8. All employees in the following departments at the Employer's plant located
at Hopedale, Massachusetts.
Department 38, Department 86, Department 35, Department 46, Department
34, Department 69, Department 43 and Department 18, including inventory
clerks, but excluding all other employees, the two Department 18 employees
permanently assigned to Department 16, master mechanic, assistant master
mechanic, foremen, assistant foremen, office clerical employees, plant clerical
employees, technical 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.
[On or about May 26, 1964, the Regional Director for the First Region
issued a Decision and Direction of Election in Case No 1-RC-7795, in which an
election by secret ballot in the above described units was directed ]
9. On or about October 28, 1964, a majority of the employees in the unit
described . . , by a secret election conducted under the supervision of the Regional
Director for the First Region of the Board, designated or selected the Union as
their representative for the purposes of collective bargaining. On November 5,
1964, the Union was certified by the National Labor Relations Board as
collective bargaining representative of the employees described [in the unit].
10. At all times since October 28, 1964, the Union has been the representative
for the purposes of collective bargaining of a majority of the employees in the
said unit and, by virtue of Section 9(a) of the Act, has been and is now the
exclusive representative of all the employees in the said unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment,
or other conditions of employment.
11. On or about November 6, 1964, the Union requested Respondent to bar-
gain collectively in respect to rates of pay, wages, hours of employment or other
conditions of employment with the Union as the exclusive representative of all
the employees in the unit described....
12. On or about November 10, 1964, and at all times thereafter, Respondent
did refuse and continues to refuse to bargain collectively with the Union as the
exclusive representative of all the employees in the unit described above... .
16. The acts of the Respondent, described above, constitute unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.
The Respondent filed a timely answer to the complaint. Its answer, by failing to
deny, admitted the jurisdictional and procedural allegations of the complaint and the
status of the Union as a labor organization The answer admits that: A secret ballot
election was conducted in the unit set forth in the complaint, the Union received
a majority of the ballots at said election; the Regional Director certified the Union
as the bargaining representative of the employees in the said unit; the Union has
requested the Respondent to bargain with it as the exclusive collective-bargaining
representative of the employees in the said unit; the Respondent has refused to do so.
The answer denies all other allegations of the complaint including those relating to
the appropriateness of the bargaining unit, the status of the Union as exclusive repre-
sentative of all employees in said unit, and the commission by the Respondent of
any unfair labor practices within the meaning of the Act Specifically, in connection
with its refusal to bargain with the Union, the Respondent in its answer admits that
on or about November 10, 1964, it wrote a letter addressed to the Union reading as
follows:
Gentlemen• This will acknowledge receipt of your letter dated November 6,
1964 In our opinion the National Labor Relations Board erred in determining
that the unit in respect of which you have been certified by it as bargaining
representative is an appropriate bargaining unit. Accordingly, our position is,
that we should not recognize or deal with you as such representative unless and
until the courts have decided that such unit is proper.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As affirmative defenses, the Respondent in its answer says that: (1) The employees
described do not constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of the National Labor Relations Act, as amended; the deci-
sion of the National Labor Relations Board in Case No. 1-RC-7795 to the effect that
such employees do constitute such an appropriate unit was arbitrary, capricious, and
erroneous and was based, in violation of Section 9(c) (5) of the National Labor
Relations Act, as amended, only on the extent to which employees of this Respondent
have organized; the Union referred to in the complaint has not been designated or
selected for the purposes of collective bargaining by the majority of the employees
of this Respondent in a unit appropriate for such purposes under the National Labor
Relations Act, as amended; and accordingly the certification by the National Labor
Relations Board on November 5, 1964, of said Union as collective-bargaining repre-
sentative of the employees described, was in error and of no force or effect; and
(2) by reason of the matters referred to in the foregoing affirmative defense, the
Respondent is under no obligation to bargain with the Union referred to in the com-
plaint and that the communication dated November 10, 1964, and the subsequent
persistence of this Respondent in the position taken in that letter, did not and does
not violate the National Labor Relations Act, as amended, or any other statute or law.
On or about December 22, 1964, counsel for the General Counsel filed and served
a motion for judgment on the pleadings. In support thereof, he contends that: (1)
The Respondent's answer admits all the material allegations of the complaint; (2) the
affirmative defenses pleaded by the Respondent have been raised and litigated in
the underlying representation proceeding (Case No. 1-RC-7795, supra); (3) the
issues raised and determined by the Board in a prior representation case cannot
be relitigated in a subsequent unfair labor practice proceeding absent newly discov-
ered evidence and the Respondent may not raise these issues in this complaint
proceeding before this Trial Examiner, who is bound by the Board's Decision; and
(4) the allegations of the complaint must be found to be true and this Trial Examiner
should make findings of fact and conclusions based thereon. Counsel for the General
Counsel therefore moves that (1) this Trial Examiner find that the unit described
above constitutes a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, since said unit description has been litigated
previously and found appropriate by the Board in Case No. 1-RC-7795 and, there-
fore, the Board would refuse to reconsider this issue in the instant case; (2) all other
material allegations in the complaint and notice of hearing which Respondent has
in effect admitted in its answer be deemed to be admitted to be true; and (3) Respond-
ent be found by this Trial Examiner to have violated Section 8(a) (1) and (5) of the
Act without the taking of evidence in support of the allegations of the complaint.'
On January 5, 1965, I issued and caused to be served upon all the parties an order
requiring the Respondent to file a reply to the said motion, stating whether there are
any genuine issues of fact open for decision and if so clearly identifying and stating
such issues, and showing cause why the notice of hearing should not be vacated and
the legal issues resolved by a written decision after the submission of briefs. On
January 19, 1965, the Respondent, by counsel, filed a reply to the said motion, as
follows:
The Employer knows of no new material facts not presented in Case No. 1-RC-
7795 evidence of which would be admissible in this proceeding underly presently
applicable Board authority. The Employer reserves the right to argue in its
brief, or in subsequent stages of this or any related proceeding, any question of
fact or law, including but not limited to the question of whether findings of the
Board in Case No. 1-RC-7795 are supported by substantial evidence on the
record considered as a whole.
It appearing. therefore, that there are no issues of fact herein requiring a hearing
before a Trial Examiner for the purpose of issuing a Decision , on January 25, 1965,
I issued an order vacating the notice of hearing and directing that this case be
deemed submitted for decision on the pleadings, the motion papers, and the whole
record in Case No. 1-RC-7795.
A brief submitted on behalf of the Respondent to me, in which it is urged that the
decision of the Regional Director and the Board in Case No. 1-RC-7795 was erro-
neous as a matter of law and that the Respondent in the present case was not required
I The Regional Director referred the motion to the Chief Trial Examiner, who duly
designated Trial Examiner Arthur E Reyman as Trial Examiner herein I have con-
sidered the motion as one filed pursuant to rule 12(c) of the Rules of Civil Procedure
for the United States District Courts, and have treated it as one for summary judgment
as provided in rule 56 to allow consideration of the full record in Case No. 1-RC-7795
DRAPER CORPORATION 523
as a matter of law to recognize or bargain with the Union, has been carefully con-
sidered. The facts presented from the point of view of Respondent are fairly and
ably set forth in brief and from the facts counsel argues (1) the Regional Director's
findings of fact on a number of issues are clearly erroneous and are not supported
by substantial evidence on the record considered as a whole, and (2) the decision
of the Regional Director as affirmed by the Board was arbitrary and capricious and
requires the conclusion that the Regional Director and the Board treated the extent
of organization of the employees as controlling.
Ruling on Motion
The issues raised by the Respondent in the answer to the complaint, and in brief,
are these (1) whether the findings of fact in the underlying case are supported by
substantial evidence on the record considered as a whole; (2) whether the unit
described in the complaint for the employees in which the Union has been certified
as the collective-bargaining representative is an appropriate unit for such purposes
within the meaning of Section 9(b) of the Act; and (3) whether the Board, in deter-
mining that said unit was appropriate for collective-bargaining purposes, violated
Section 9(c)(5) by giving controlling effect to the extent to which the employees
had organized.
The appropriateness of the unit was litigated by the parties and decided by the
Board in the underlying representation proceeding and, absent newly discovered evi-
dence, may not be relitigated in this case. In Pittsburgh Plate Glass Co. v. N.L.R.B.,
313 U.S 146, 158, the Court said, "The unit proceeding and this complaint on unfair
labor practices are really one." Accordingly, the decision of the Board, which is
binding upon me, is dispositive of this question. Metropolitan Life Insurance Com-
pany, 141 NLRB 337, 340, enfd. 328 F. 2d 820 (CA. 3); Metropolitan Life Insur-
ance Company, 141 NLRB 1074, 1076, 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); Bonnie Enterprises, Inc., 145 NLRB 1669, 1672. The Respondent does
not contend that there is newly discovered evidence since the Board's certification,
or evidence unavailable at the time of the representation proceeding, but contends
only that the Board's original unit determination was erroneous. Therefore, I am
bound by the Board's unit determination.
There are no factual issues litigable before me and the legal issue has been decided
by the Board. Accordingly, the motion made on behalf of the General Counsel is
granted and, on the basis of the entire record herein, including the representation
case, I make the following -
FINDINGS OF FACT
1. JURISDICTION
The Respondent is and has been at all times material hereto a corporation duly
organized under and existing by virtue of the laws of the State of Maine. At all times
herein mentioned, the Respondent has maintained a manufacturing plant in the city
of Hopedale, Commonwealth of Massachusetts, and is now and continuously has
been engaged in the manufacture, sale, and distribution of textile machinery and
related products. The Respondent in the course and conduct of its business causes,
and continuously has caused at all times herein mentioned, large quantities of raw
materials used by it in the manufacture of textile machinery to be purchased and
transported in interstate commerce from and through various States of the United
States other than the Commonwealth of Massachusetts, and causes, and continuously
has caused at all times herein mentioned, substantial quantities of textile machinery
to be sold and transported from said plant in interstate and foreign commerce to
States of the United States other than the Commonwealth of Massachusetts. The
Respondent, during the 12 months immediately preceding the issuance of the com-
plaint herein, which period is representative of all times material herein, shipped
goods valued at an excess of $50,000 directly from its Hopedale, Massachusetts, plant
to points outside the Commonwealth of Massachusetts.
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.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
1. The unit
All employees in the following departments at the Respondent's plant located at
Hopedale, Massachusetts* department 38, department 86, department 35, depart-
ment 46, department 34, department 69, department 43, and department 18, including
inventory clerks, but excluding all other employees, the two department 18 employees
permanently assigned to department 16, master mechanic, assistant master mechanic,
foremen, assistant foremen, office clerical employees, plant clerical employees, tech-
nical 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.
2. The certification
On or about October 28, 1964, a majority of the employees in the above-described
unit, by a secret election conducted under the supervision of the Regional Director
for Region I of the Board, designated or selected the Union as their representative
for the purposes of collective bargaining On November 5, 1964, the Union was
certified by the National Labor Relations Board as collective-bargaining representa-
tive of the employees in the above-described unit The Union is and at all times
since October 28, 1964, has been the representative for the purposes of collective
bargaining of a majority of the employees in the said unit and, by virtue of Section
9(a) of the Act, has been and is now the exclusive representative of all the employees
in the said unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment.
3. The request to bargain and Respondent's refusal
On or about November 6, 1964, the Union requested the Respondent to bargain
collectively in respect to rates of pay, wages, hours of employment, and other condi-
tions of employment with the Union as the exclusive representative of all the
employees of the Respondent in the above-described unit. On or about November
10, 1964, and at all times thereafter, the Respondent did refuse and continues to
refuse to bargain collectively with the Union as the exclusive representative of all
the employees in the said above-described unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations set forth in section I, above, have a close, intimate, and
substantial 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
I The Respondent, Draper Corporation, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Union, United Steelworkers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3 All employees in the following departments at the Respondent's plant located
at Hopedale, Massachusetts department 38, department 86, department 35, depart-
ment 46, department 34, department 69, department 43, and department 18, including
inventory clerks, but excluding all other employees, the two department 18 employees
permanently assigned to department 16, master mechanic, assistant master mechanic,
foremen, assistant foremen, office clerical employees, plant clerical employees, tech-
nical 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.
DRAPER CORPORATION 525
4. Since on or about October 28, 1964, the Union has been and is the exclusive
representative for the purposes of collective bargaining of the employees in the unit
described above.
5. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on or about November 10, 1964, 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.
6. 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 proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, it is recommended that the
Respondent, Draper Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Steelworkers of America, AFL-
CIO, as the exclusive bargaining representative of its employees in the following
departments of its plant located at Hopedale, Massachusetts. department 38, depart-
ment 86, department 35, department 46, department 34, department 69, department
43, and department 18, including inventory clerks, but excluding all other employees,
the two department 18 employees permanently assigned to department 16, master
mechanic, assistant master mechanic, foremen, assistant foremen, office clerical
employees, plant clerical employees, technical employees, professional employees,
guards, and supervisors, as defined in the Act.
(b) Interfering with the efforts of United Steelworkers of America, AFL-CIO,
to negotiate for or to represent the employees in the said appropriate unit as their
exclusive bargaining agent
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with United Steelworkers of America, 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 under-
standing in a signed agreement.
(b) Post at its plant located at Hopedale, Massachusetts, copies of the attached
notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional
Director for Region 1, shall, after being duly signed by Respondent's representative,
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 Respond-
ent to ensure 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 receipt of this Decision and Recommended Order, what steps the Respondent has
taken to comply herewith.3
2In the event 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 the 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 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, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive representative of the employees in the
bargaining unit described below.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interfere with the efforts of the United Steelworkers of Amer-
ica, AFL-CIO, to negotiate for or represent as exclusive bargaining agent the
employees in the bargaining unit described below.
WE WILL, upon request , bargain with the above-named Union , as the exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment , and other conditions of
employment , and, if an understanding is reached , embody such an understanding
in a signed agreement.
The bargaining unit is:
All employees in the following departments of Draper Corporation plant
located at Hopedale , Massachusetts : department 38, department 86, depart-
ment 35, department 46, department 34, department 69, department 43,
and department 18, including inventory clerks, but excluding all other
employees , the two department 18 employees permanently assigned to
department 16, master mechanic , assistant master mehcanic, foremen,
assistant foremen , office clerical employees , plant clerical employees, tech-
nical employees , professional employees , guards, and supervisors , as defined
in the Act.
DRAPER CORPORATION,
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.
Employees may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street , Boston, Massachusetts, Tele-
phone No. 523-8100 if they have any questions concerning this notice of compliance
with its provisions.
James M. Casida, et al . and International Union of Operating
Engineers , AFL-CIO, and Local 351, International Union of
Operating Engineers , AFL-CIO. Case No. AO-84. May 10,
1965.
ORDER DISMISSING PETITION FOR ADVISORY OPINION
A petition was filed on April 22, 1965, by James M. Casida and 27
other individuals, herein called the Petitioners, pursuant to Sections
102.98 and 102.99 of the Board 's Rules and Regulations , Series 8, as
amended, for an Advisory Opinion with respect to a jurisdictional
issue raised in a damage suit for alleged breach of contract and fraudu-
lent representations instituted by the Petitioners in the State District
Court of Hutchinson County, Texas, against International Union of
Operating Engineers, AFL-CIO, and Local 351, International Union
of Operating Engineers, AFL-CIO, herein called the Unions.
The State court action was instituted after the General Counsel had
refused to issue a complaint upon unfair labor practice charges filed
by the Petitioners and had dismissed the charges. The judgment of
the State District Court awarding damages was appealed to the Court
of Civil Appeals for the Seventh Supreme Judicial District of Texas
at Amarillo, Texas, which reversed the judgment on the ground that
the matters in litigation had been preempted by the National Labor
152 NLRB No. 58.