Jas. H. Matthews Co.

National Labor Relations Board - Board Decisions

Feb 11, 1964

145 N.L.R.B. 1680 (N.L.R.B. 1964)

1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 with the Board 's Regional Office, 849 South Broad-
way, Los Angeles, California, Telephone No. 688-5204, if they have any question
concerning this notice or compliance with its provisions.
Jas. H . Matthews Co., Industrial Marking Products Division and
Local 605 of the International Union of Electrical , Radio &
Machine Workers, AFL-CIO. Case No. 6-CA-284. Febru-
ary 11, 196.41.
DECISION AND ORDER
On October 24, 1963, Trial Examiner Owsley Vose issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision,
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the De-
cision, the exceptions and the brief, and the entire record, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER'
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
' The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that the Respondent , Jas. H. Matthews Co., Industrial Marking Products Division, its
officers, agents , successors, and assigns , shall:
TRIAL EXAMINER'S DECISION
Statement of the Case
Upon a charge filed on August 9, 1963, by the Charging Party, the General Coun-
sel of the National Labor Relations Board, by the Regional Director for the Sixth
Region , issued a complaint on August 28, 1963 , alleging that the Respondent had
refused to bargain collectively with Local 605 of the International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO, herein called IUE, the certified majority
representative of Respondent 's employees in an appropriate bargaining unit. The
145 NLRB No. 160.
JAS. H. MATTHEWS CO., ETC. 1681
Respondent admits that it has refused to bargain with the IUE and challenges only
the Regional Director's action in the representation proceeding, Case No. 6-RC-3262,
in overruling the Respondent's objections to conduct affecting the results of the
election.
Pursuant to due notice, a hearing was held before Trial Examiner Owsley Vose
in Pittsburgh, Pennsylvania, on September 12, 1963. All parties were afforded
full opportunity to be heard and to introduce relevant evidence. Counsel for the
General Counsel presented oral argument at the close of the hearing and the counsel
for the Respondent submitted a brief.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is a Pennsylvania corporation having places of business and
plants in various States. The Industrial Marking Products Division, which is here
involved, operates two plants in Pittsburgh, Pennsylvania, where it is engaged in the
manufacture of marking devices. During the year preceding the filing of the com-
plaint the Respondent caused to be shipped to its Pittsburgh plants from out-of-State
sources in excess of $50,000 worth of goods and materials. During this same
period the Respondent shipped more than $50,000 worth of goods and materials
from its Pittsburgh plants to out-of-State destinations. I find, as the Respondent
admits, that it is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 605 of the International Union of Electrical, Radio & Machine Workers,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The representation proceeding
On February 5, 1963, the Respondent and the IUE entered into an agreement for
consent election for the conduct of a Board election. Under this agreement, which
was approved by the Regional Director, the parties stipulated as to the appropriate
collective-bargaining unit described in the Recommended Order below, the eligible
voters, the date and place of the election, the selection of observers, the manner of
counting ballots, and other matters pertaining to the conduct of the election. The
parties specifically agreed that:
Said election shall be held in accordance with the National Labor Relations
Act, the Board's Rules and Regulations, and the applicable procedures and
policies of the Board, provided that the determination of the Regional Direc-
tor shall be final and binding upon any question, including questions as to the
eligibility of voters, raised by any party hereto relating in any manner to the
election, and provided further that rulings or determinations by the Regional
Director in respect of any amendment of any certification resulting therefrom
shall also be final.
In addition, the agreement provided that either party may file objections to the
conduct of the election or conduct affecting the results of the election; and if ob-
jections were filed, that the Regional Director would conduct an "investigation"
and report thereon. The agreement then stated:
The method of investigation of objections and challenges, including the ques-
tion whether a hearing should be held in connection therewith, shall be deter-
mined by the Regional Director, whose decision shall be final and binding
Pursuant to the agreement, the election was held on February 21, 1963. The
IUE received 72 votes and 67 votes were cast against it. There were no challenged
ballots.
Thereafter the Respondent filed with the Regional Director timely objections to
conduct affecting the results of the election. The conduct to which the Respondent
primarily objected was the IUE's distribution to the employees on February 19,
1963, just 2 days before the election, of a leaflet which in its view contained serious
misrepresentations concerning the terms of the Respondent's pension and insurance
734-070-64-vol. 145-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plans, false accusations of fraud and dishonesty on the part of the Respondent, and
misrepresentations as to the insurance and other benefits which the IUE had ne-
gotiated with other employers.' The Respondent urged in its objections, that the
Regional Director should take into consideration the fact that the employees would
be likely to give undue weight to the IUE's representations regarding the terms of
pension and insurance plans because they were advanced as the opinions of the IUE's
pension and insurance experts. The Respondent also argued before the Regional
Director that it did not have sufficient time before the election to make an effective
reply to the IUE's misrepresentations.
Upon receipt of the Respondent's objections the Regional Director conducted an
investigation into the matters raised by the objections. In the course of the investiga-
tion, which lasted over 3 months, representatives of the Regional Director conferred
with representatives of the Respondent, requested and received numerous docu-
ments offered in support of the Respondent's position, including an affidavit of the
Respondent's personnel director. Upon consideration of all the material submitted
by the Respondent, the Regional Director concluded that, while the leaflet did con-
tain some misrepresentations of fact, the Respondent had a sufficient opportunity to
correct any misrepresentations before the election, and that any exaggerations con-
tained in the leaflet were not such as to warrant setting aside the election. Accord-
ingly, on June 26, 1963, the Regional Director overruled the Respondent's objections
and certified the IUE as the exclusive bargaining representative of the employees in
the appropriate unit described yin the Recommended Order below.
B. The unfair labor practice proceeding
On June 27, 1963, the IUE by letter requested that the Respondent meet with it
on July 2, 1963, for the purpose of opening collective-bargaining negotiations.
By letter dated July 3, 1963, the Respondent declined to meet with the IUE and
explained that, in its opinion, "the Regional Director's Report was not based on
substantial evidence considered as a whole, was unreasonable, arbitrary, constituted
an abuse of discretion, and was not in conformity with NLRB policies or the pro-
visions of the Act."
Thereafter the instant proceeding was initiated with the filing of the charge and
the issuance of the complaint, as stated above. In its answer to the complaint,
the Respondent admitted its refusal to bargain collectively with the IUE and, in ex-
planation thereof, quoted the position stated in its letter to the IUE dated July 3, 1963.
At the hearing in this case all of the evidence sought to be adduced by the Re-
spondent related to the alleged misrepresentations and false accusations contained
in the IUE's preelection leaflet distributed on February 19, 1963, and the Respond-
ent's inability to refute such misrepresentations in the short period remaining before
the election All of the exhibits offered by the Respondent in this proceeding had
previously been submitted to and considered by the Regional Director in the repre-
sentation proceeding None of the testimony sought to be adduced was shown to
be unavailable at the time the Regional Director's investigation of the Respondent's
objections to the election was pending.
Counsel for the General Counsel objected to the receipt in evidence of the prof-
fered testimony and exhibits upon the ground that the Respondent was merely seeking
to relitigate matters decided by the Regional Director in his investigation of the
Respondent's objections.
The Trial Examiner sustained counsel for the General Counsel's objection in this
regard but permitted counsel for the Respondent to state for the record the matters
which he proposed to prove in this proceeding if allowed to do so. An expert on
pensions and insurance matters was called and examined by counsel for the Re-
spondent as part of the offer of proof. The purpose of allowing the Respondent to
make this offer of proof and to make the proffer of documentary evidence which it
did, as stated by the Examiner, was to enable the Trial Examiner to determine
whether the proffered evidence, if adduced, tended to establish that the Regional
Directory was arbitrary and capricious in rejecting the Respondent's objections to
the election. Concluding at the hearing that the evidence proffered by the Re-
spondent did not tend to establish arbitrary and capricious action on the part of
the Regional Director, the Trial Examiner in effect reaffirmed his prior ruling ex-
cluding substantially all of the evidence offered by the Respondent at the hearing.
'In its objections, the Respondent presented two other grounds for setting aside the
election. However, the Respondent no longer advances these objections and consequently
they need not be discussed at this stage of the proceedings
JAS. H. MATTHEWS CO., ETC. 1683
Since receiving the Respondent's brief, the Trial Examiner has reconsidered the
Respondent's offer of proof, including all of the testimonial and documentary evi-
dence proffered, with a view to deternuning whether under applicable Board law the
Respondent, if allowed to go to proof on the proffered matters, could make out a
case for reversing the Regional Director's ruling rejecting the Respondent's objections
to the election. For the reasons set forth below, I conclude that the Respondent
could not make out such a case and, accordingly, adhere to my ruling at the hearing
excluding the Respondent's proffered evidence.
Under the terms of the consent election agreement, Respondent specifically agreed
that the Regional Director's determination "shall be final and binding" as to "any"
election question and as to the method of investigation of any question. Thus, Re-
spondent in effect agreed to make the Regional Director "the final arbiter of any
questions relating to the election." (Buffalo Arms, Inc. v. N.L.R.B., 224 F. 2d 105,
109 (C.A. 2).) In such cases, as the Board has stated, "we will deem the Regional
Director's determination . to be final in the absence of fraud, misconduct, or
such gross mistakes as imply bad faith on the part of the Regional Director, even
though we might reach a different result." Sumner Sand & Gravel Company, 128
NLRB 1368, 1371, enfd. 297 F. 2d 754 (C.A. 9); Pacific Multi forms Company, 138
NLRB 796, 798-799. As held by the Court of Appeals for the Third Circuit, "It is
clear that nothing short of capricious and arbitrary action by the Regional Director
would invalidate this decision which the parties had agreed to accept as final."
N L.R B. v. General Armature & Mfg. Co., 192 F. 2d 316, 317 footnote 1. As the
Board explained in the Pacific Multiforms case, "To hold otherwise would permit
the parties deliberately to ignore binding commitments embodied in a consent agree-
ment, would open the door to subterfuges for hampering and delaying a final de-
termination of a bargaining representative; and would tend to defeat, rather than to
effectuate, the policies of the Act."
In this case, as in the General Armature case, the Respondent's proffered evidence
falls "far short of proving capricious or arbitrary decision." The Respondent's
evidence, at most, raises the question whether the Regional Director made an error
of judgment in passing upon the Respondent's objections to the election. Such a
question, however, is not cognizable before me, under the authorities cited above.
Here, as in the Pacific Multiforms case, the Respondent is in effect merely "seeking
to relitigate in a complaint proceeding matters foreclosed by the Regional Director's
final determination," which is impermissible upon the proffered facts of the case in
view of the Respondent's commitment to be bound by the Regional Director's de-
cision regarding any and all election questions.
In its brief the Respondent cites N.L.R.B. v. Trancoa Chemical Corp., 303 F. 2d
456 (C.A. 1); N.L.R.B. v. Houston Chronicle Publishing Co., 300 F. 2d 273 (C.A.
5); Cross Company v. N.L.R.B., 286 F. 2d 799 (C.A. 6); and Celanese Corporation
of America v. N.L.R.B., 291 F. 2d 224 (C.A. 7). Respondent's reliance on these
cases here is misplaced in view of the fact that none of these cases concerned an
agreement for a consent election of the type here involved, i.e., including the com-
mitment by the employer to be bound by whatever decision the Regional Director
might make on any question arising in the election proceeding. It is possible, had
not the Respondent waived its right to have the Board itself pass upon its objec-
tions to the election , that the Board would have reached a different conclusion from
the Regional Director upon the facts of the case. However, since the Respondent
did bind itself to accept the Regional Director's determination, the Respondent must
be held to its commitment in this regard in the absence of fraud or arbitrary, or
capricious action on the part of the Regional Director. As found above, the Re-
spondent's proffered evidence, at most, raises the question whether the Regional
Director made an error of judgment in passing upon the Respondent's objections to
the election.
For the reasons stated above, I conclude that the Respondent's admitted refusal
to bargain collectively with the IUE constitutes a violation of Section 8(a)(5) of
the Act.
CONCLUSION OF LAW
1. By refusing to bargain collectively on July 3, 1963, and thereafter with Local
605 of the International Union of Electrical, Radio and Machine Workers, AFL-
CIO, as the duly certified exclusive bargaining representative of its employees in an
appropriate bargaining unit the Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and
(7) of the Act.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in
the case, the Trial Examiner, pursuant to Section 10(c) of hte Act, recommends
that the Respondent Jas. H . Matthews Co., Industrial Marking Products Division,
Pittsburgh, Pennsylvania, its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 605 of the 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 , stockroom and shipping and re-
ceiving employees , and working foremen in the Industrial Marking Products
Division at the above-named Employer 's plants located at 6515 Penn Avenue
and 916 Forbes Avenue, Pittsburgh , Pennsylvania , excluding all office clerical
employees , plant clerical employees , technical employees and guards, profes-
sional employees , and supervisors as defined in the Act , as amended.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request , bargain collectively with Local 605 of the International Union
of Electrical , Radio and Machine Workers, AFL-CIO, as the exclusive representa-
tive of the employees in the appropriate unit described in paragraph 1(a) above,
with respect to rates of pay, wages , hours of work , and other terms and conditions
of employment , and embody in a signed agreement any understanding reached.
(b) Post at its Pittsburgh , Pennsylvania , plant, copies of the attached notice
marked "Appendix ." 2 Copies of said notice, to be furnished by the Regional
Director for the Sixth Region , shall , after being duly signed by an authorized
representative of the Respondent , be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, 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 the Sixth Region , in writing , within 20
days from the receipt of this Recommended Order, what steps it has taken to comply
herewith.3
2 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be 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."
3In 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 a 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 bargain collectively with Local 605 of the International Union
of Electrical, Radio & Machine Workers, AFL-CIO, as exclusive bargaining
representative of our employees in the appropriate unit described below:
All production and maintenance employees, stockroom and shipping and
receiving employees, and working foremen in the Industrial Marking
Products Division at the above-named Employer's plants located at 6515
Penn Avenue and 916 Forbes Avenue, Pittsburgh, Pennsylvania, exclud-
ing all office clerical employees, plant clerical employees, technical em-
ployees and guards, professional employees, and supervisors as defined
in the Act, as amended.
JAS H. MATTHEWS CO., INDUSTRIAL
MARKING PRODUCTS DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Itepresentative) (Title)
BIG THREE WELDING EQUIPMENT COMPANY 1685
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, 2107
Clark Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No.
471-2977, if they have any question concerning this notice or compliance with its
provisions.
Big Three Welding Equipment Company and Johnnie Cecil
Gripon , Ruble C. Gentry , Jr., Guy W. East . Cases Nos. 33-CA-
1575-1, 23-CA-1575-2, and 23-CA-1585. February 12, 1964
DECISION AND ORDER
On August 2, 1963, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting argument, and a request for
oral argument.' The General Counsel filed limited exceptions to
the Trial Examiner's Intermediate Report together with a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
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 entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as noted below :
The complaint alleges, inter alia, that Oliver Stansbury, Respond-
ent's plant superintendent, told an employee, R. C. Gentry, that the
latter's discharge was occasioned by Gentry's organizational activities.
The Trial Examiner recommended dismissal of this allegation because
he found no evidence upon which any such statement could reasonably
be inferred. He acknowledged, however, that the intended import of
what Stansbury actually said to Gentry at the time of the latter's dis-
charge "may have been" as alleged in the complaint.
According to Gentry's credited testimony, he was told by Stansbury
that he was being fired because he was dissatisfied. Gentry replied,
"That is not the reason you are firing me and you know it." Stans-
1 Respondent ' s request for oral argument is hereby denied , as in our opinion , the record
and briefs adequately present the issues and positions of the parties.
145 NLRB No. 163.