Dubo Manufacturing Corp.

National Labor Relations Board - Board Decisions

May 1, 1963

142 N.L.R.B. 431 (N.L.R.B. 1963)

DUBO MANUFACTURING CORPORATION 431
S. Pursuant to a stipulation between the parties, the hearing in
the district court to determine the Petitioner's special appearance and
objections to the court's jurisdiction has been held in abeyance pending
the issuance of the Advisory Opinion herein.
9. No representation or unfair labor practice proceeding involving
the same labor dispute is pending before the Board.
10. Although served with the Petition for Advisory Opinion, the
Employer filed no response as provided by the Board's Rules and
Regulations.
On the basis of the above, the Board is of the opinion that :
1. The Employer is a general contractor engaged in the building
and construction industry at Little Falls, Minnesota.
2. The current Board standard for the assertion of jurisdiction over
nonretail enterprises within its statutory jurisdiction requires an an-
nual minimum of $50,000 inflow or outflow across State lines, direct or
indirect. Siemons Mailing Service, 122 NLRB 81, 85.
3. During the fiscal year ending August 31, 1962, the Employer
made purchases of materials in excess of $50,000 from local suppliers,
who themselves received the materials from outside the State of
Minnesota. During the more recent 6-month period between Septem-
ber 1, 1962, and March 1, 1963, the Employer made similar local pur-
chases of out-of-State processed or manufactured materials valued
at $27,027.34, which, projected over a 1-year period, would exceed
$50,000.1 As these purchases of out-of-State materials constitute in-
direct inflow as defined in the Siemons decision and as they exceed
$50,000 annually, on an actual or projected basis, the Employer's op-
erations would satisfy the Board's standard for the assertion of
jurisdiction over nonretail enterprises.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, that, on the facts present herein, the
Board would assert jurisdiction over the Employer's operations with
respect to labor disputes cognizable under Sections 8, 9, and 10 of the
Act.
1 See City Line Open Hearth Inc., 141 NLRB No . 74; Quality Coal Corporation, 139
NLRB 492; Sequim Lumber and Supply Company , 123 NLRB 1097.
Dubo Manufacturing Corporation and United Steelworkers of
America , AFL-CIO. Cases Nos. 8-CA-2700 and 8-CA-2820.
May 1, 1963
NOTICE
On August 28, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceedings and the pro-
ceedings were thereafter transferred to the Board. Subsequently,
142 NLRB No. 47.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dubo Manufacturing Corporation, herein called the Respondent,
United Steelworkers of America, AFL-CIO, herein called the Union,
and the General Counsel, filed exceptions to the Intermediate Report
and supporting briefs.
The charges, filed by the Union on January 30, 1962,1 alleged that
the Respondent had violated Section 8 (a) (5) and (1) of the Act by
refusing to bargain with the Union as the representative of its em-
ployees; had violated Section 8(a) (3) by discharging and refusing
to reinstate certain of its employees because they had engaged in con-
certed, protected activities; and violated Section 8(a) (1) of the Act
by threatening its employees with reprisals because they had engaged
in concerted, protected activities. On February 6, 1962, the Union
petitioned the United States District Court for the Northern District
of Ohio, Eastern Division, for an order requiring the Respondent to
arbitrate grievances filed by 12 of the discharged employees named in
the charges filed with the Board.2 On May 25 and June 25, 1962,
complaints were issued by the General Counsel alleging as violations
the matters encompassed in the Union's unfair labor practice charges
referred to above.
In June 1962 the district court issued an order directing the arbi-
tration of the several grievances previously filed with respect to the
employees' discharges.
The Board policy is to effectuate, wherever possible, the intent of
Congress expressed in Section 203(d) of the 1947 Labor Management
Relations Act, namely, "Final adjustment by a method agreed upon
by the parties is hereby declared to be the desirable method for settle-
ment of grievance disputes arising over the application or interpre-
tation of an existing collective-bargaining agreement." In effectuat-
ing that congressional intent, the Board has recognized existing
arbitration awards,3 and in certain circumstances has required parties
before resorting to Board processes to utilize the grievance and arbi-
tration procedure in agreements to which they are signatory.' These
policy considerations are clearly applicable here where not only do
the parties have available a procedure to settle the dispute, but a
United States District Court has ordered them to utilize it. It would
certainly frustrate the intent expressed by Congress if the Board were
now to permit the use of the Board's processes to enable the parties
to avoid their contractual obligations as interpreted by the court.
1 Amended charges were filed on May 24 and June 6, 1962
z The Respondent had previously refused to process these grievances which had been
filed by the Union on January 6, 1962 The grievances were filed by those 12 of the
original dischargees who had been refused reinstatement, and requested a determination
that they had been unjustly discharged and were entitled to reinstatement
8See Spielberg Manufacturing Company, 112 NLRB 1080 Inteinattonal Ilari,ester
Company, 138 NLRB 923, Oscher icttz and Sons, 130 NLRB 1078
1 See Montgomery Ward & Co, Incorporated , 137 NLRB 418
FORMICA CORP ., SUBSIDIARY AMERICAN CYANAMID CO. 433
Accordingly, the parties are hereby notified that, based upon the
considerations expressed herein, the Board will defer action on the
8(a) (3) allegations in the complaint pending completion of the arbi-
tration directed by the district court, and notification thereof to the
Board.
The parties are further notified that the Board will not, however,
hold in abeyance its action on the 8 (a) (1) and 8 (a) (5) allegations of
the complaint, but will instead review the Trial Examiner's findings
thereon and will issue its Decision with respect thereto forthwith.
MEMBERS FANNING and BROWN took no part in the consideration of
the above Notice.
Formica Corporation , Subsidiary of American Cyanamid Co.'
and Local 757, International Union of Electrical , Radio and
Machine Workers, AFL-CIO . Case No. 9-RV-46. May 1, 1963
DECISION AND ORDER CLARIFYING CERTIFICATION
On April 12,1950, the Board issued a certification of representatives
in the above-entitled proceeding, certifying the Union as the bar-
gaining representative of "all production and maintenance employees
at the Hamilton County, Ohio, plant or plants of the Employer, in-
cluding employees in the machine shop, toolroom, and shop clerks,
but excluding office clerical employees, nurses, professional employees,
all guards and supervisors as defined in the Act."
On December 12,1962, the Union filed a motion to clarify certifica-
tion, in which it seeks to have included within the certified unit all
gravure services department employees who do not come within the
specific exclusions set forth in the unit description. The Employer
filed a motion to dismiss, alleging that the employees in the gravure
services department, who had been transferred from classifications
within the bargaining unit, are engaged in work which is properly
outside the unit. On January 29, 1963, the Board issued an order
referring the proceeding to the Regional Director for the Ninth Region
for the purpose of conducting a hearing on the issues raised by the
parties. Thereafter, on February 21, 1963, a hearing was held before
Mark Fox, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers herein to a three-member panel [Chairman
McCulloch and Members Rodgers and Leedom].
'The name of the Employer at the time of the Union 's certification was The
Formica Co.
142 NLRB No. 51.