Shawnee Plastics, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1965

154 N.L.R.B. 1176 (N.L.R.B. 1965)

1176 DECISIONS O$ NATIONAL LABOR RELATIONS BOARD
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 Carpenters ' Union Local 971,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO, as the
exclusive representative of our employees in the bargaining unit described below,
by failing and refusing to furnish the said Union the financial data requested
by it on June 5, 1964.
WE WILL furnish to the above -named Union the requested financial data
detailed above in order that it may properly discharge its function as the
statutory bargaining representative of our employees in the appropriate unit.
WE WILL NOT in any like or related manner refuse to bargain collectively
with said labor organization as the exclusive representative of our employees in
the bargaining unit described below:
All employees of the following named members of Northern Nevada
Cabinet and Mill Operators Council of Home Builders Association of
Northern Nevada , namely, Bud's Cabinet & Fixture Co ., Builders Mill, and
Powell Cabinet & Fixture Co., performing carpentry work at their cabinet
shops and mills in the Reno-Sparks , Nevada, area , excluding office clerical
employees , guards, and supervisors as defined in the Act.
NORTHERN NEVADA CABINET AND MILL OPERATORS COUNCIL OF
HOME BUILDERS ASSOCIATION OF NORTHERN NEVADA,
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
BUD'S CABINET & FIXTURE CO.,
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
BUILDERS MILL,
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
POWELL CABINET & FIXTURE CO.,
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, 450 Golden
Gate Avenue, San Francisco , California , Telephone No. 556-3197, if they have
any question concerning this notice or compliance with its provisions.
Shawnee Plastics , Inc. and District 153 of the International Asso-
ciation of Machinists , AFL-CIO. Case No. 25-CA-120. Sep-
tember 14,1965
DECISION AND ORDER
On June 21,1965, Trial Examiner Boyd Leedom issued his Decision
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 Trial Exam-
iner's Decision and a supporting brief.
154 NLRB No. 104.
SHAWNEE PLASTICS, INC. 1177
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 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 brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations 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, Shawnee Plastics, Inc., Evansville, Indiana, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.'
'The telephone number for Region 25, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was tried in Evansville, Indiana, on April 12, 1965, before Trial Exam-
iner Boyd Leedom. The parties stipulated that the correct name of the Respondent
is as it appears in the caption of the case. The complaint, dated February 4, 1965
(issued on a charge filed against Respondent January 18, 1965), alleges that Respond-
ent unlawfully refused to bargain with the Union, the certified representative of an
appropriate unit of Respondent's employees, thereby violating Section 8(a)(5) and
(1) of the Act.
Respondent denies that it violated the Act as alleged, notwithstanding it did refuse
to bargain with the Union and has failed and refused to bargain since January 12,
1965. Respondent seeks to justify its refusal to bargain on these assertions: That
in an election held on March 31, 1964, the employees in the unit failed to give the
Union a majority of the votes cast; that this was a valid election; that the second
or "rerun" election conducted on July 1, 1964, was invalid by reason of the fact
that the Regional Director had erroneously set aside the earlier election on objections
to the conduct of the Respondent in connection therewith; and that the certification
issued to the Union on the results of the second election was also invalid, a lack of
majority status having been established in the earlier, i.e., March 31, 1964, election;
and furthermore that the Regional Director acted capriciously and improperly:
(1) in not setting aside the second election on objections filed by Respondent;
(2) in determining that one Olive Aulenbacher was a supervisor; and (3) in failing
to resolve challenges of four other employees who voted in the second election.
On the entire record and the briefs filed by the parties, and for the reasons here-
after appearing, I find and conclude that Respondent did violate Section 8(a)(5)
and (1) of the Act as alleged in the complaint.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I find as facts the allegations of the complaint as to the nature and volume of
business done by the Respondent, a manufacturer of plastic products, with its prin-
cipal place of business in Evansville, Indiana, all of which facts are admitted by the
Respondent, and therefore conclude that, within the meaning of the Act, Respondent
is an employer engaged in commerce.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find and conclude that the Union named in the caption hereof is a labor
organization, a matter also admitted by the Respondent.
The Elections, Objections, and Challenges
In the first election, held March 31, 1964, 127 votes were cast for the Union and
140 were cast against. This election was set aside by the Regional Director on
objections to Respondent's conduct affecting the election, by a report and order dated
June 19, 1964. While Respondent in this case asserts that this was a valid election,
and established the Union's lack of majority among the employees of the unit, this
election's significance in this case is only secondary as the real thrust of the Respond-
ent's position here is that the second or rerun election should have been set aside
by the Regional Director on the objections filed by Respondent as to the conduct
of the Union; also that if the Regional Director had not improperly determined that
Olive Aulenbacher was a supervisor, and had permitted her to vote, and had resolved
the other four challenges, the second election would have established that the Union
lacked a majority; and that in this unfair labor practice proceeding Respondent has
the right to offer evidence to establish the invalidity of the rerun election and the
error of the Regional Director in his determination concerning objections and
challenges to ballots.
Notwithstanding the Respondent's position that the first election was valid, it
entered into an agreement for consent election, for the rerun election to be held
March 31, 1964. There it agreed that a unit of the following employees was
appropriate:
All production and maintenance employees employed at the Employer's Evans-
ville, Indiana, plant, including leadmen and the truckdrivers; but excluding all
office clerical employees, foreman, plant clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act.
In the agreement for consent election Respondent committed itself to the proposi-
tion that "The determination of the Regional Director 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...." The parties to the agree-
ment for consent election also specifically agreed that objections to conduct affecting
the results of the election could be filed with the Regional Director and that if filed,
in the words of the agreement, "The Regional Director shall investigate the matters
contained in the objections and issue a report thereon. If objections are sustained,
the Regional Director may in his report include an order voiding the results of the
election and, in that event, shall be empowered to conduct a new election under the
terms and provisions of this agreement at a date, time, and place to be determined
by him. If the challenges are determinative of the results of the election, the
Regional Director shall investigate the challenges and issue a report thereon The
method of investigation of objections and challenges including the question whether
a hearing should be held in connection therewith, shall be determined by the
Regional Director, whose decision shall be final and binding"
Pursuant to the provisions of this agreement for consent election the second
election was held on July 1, 1964. The tally of ballots showed approximately 267
eligible voters, I void ballot, 122 votes cast for the Union, 117 votes cast against the
Union, and 5 challenged ballots. The election was close enough to make the chal-
lenged ballots determinative of the results.
The Respondent filed timely objections to the Union's conduct affecting the elec-
tion. Briefly summarized these objections alleged that the Union's campaign letters
and circulars falsely indicated that numerous employee benefits would automatically
result if the Union were selected as bargaining representative of the employees; and
that the Union distributed among the employees untrue statements that (1) Respond-
ent was in collusion with other plastic firms in the area to pay fabulous fees to
counsel to defeat the Union's organization of Respondent's employees; (2) Respond-
ent's employees were disloyal; (3) Respondent was unfair in promotions, layoffs,
and recalls, (4) Respondent practiced favoritism, (5) Respondent caused insurance
claims to be paid slowly; and (6) the election was unfair, being held in the
summertime.
The Regional Director investigated the Respondent's objections to the conduct of
the election. He also ordered a hearing on the five challenged ballots and the
hearing was duly held on September 25, 1964, with the Union, Respondent, and
Regional Director all participating
At the request of the Regional Director both the Union and the Respondent sub-
mitted statements and evidence in support of their respective positions as to the
SHAWNEE PLASTICS, INC. 1179
issues raised by the objections and their respective showings are referred to and
reflected in the Regional Director's report on the objections in which he overruled
them for reasons set forth in a comprehensive statement.
Following the hearing on the challenged ballots the Hearing Officer issued a report
recommending that the challenge to the ballot of Olive Aulenbacher be sustained on
the ground that she was a supervisor, and therefore not entitled to vote. The Regional
Director affirmed this decision of the Hearing Officer and accepted his recoinn,en..a-
tion . Thus the tally of votes as previously stated, was not changed by the vote of
Aulenbacher; and the Union's 5-vote lead in the tally of 122 votes for and only 117
against, could not be overcome by the remaining 4 challenged votes. Because
these votes could not be determinative of the election however cast, the Hearing
Officer, with the Regional Director affirming him, declined to resolve the challenges.
The agreement for consent election provides, as appears in the excerpt quoted above,
"If the challenges are determinative of the results of the election, the Regional
Director shall investigate the challenges and issues a report thereon." The emphasis
is supplied. On December 7, 1964, the Regional Director certified the Union as the
exclusive representative of the employees in the unit.
Respondent takes the position in this proceeding that it is entitled to offer evidence
to prove the validity of the objections it filed to the rerun election and to relitigate
the determination made by the Regional Director on the challenged ballots. Counsel
for Respondent sought to call witnesses for such purpose. When denied the right so
to proceed, and advised to make the record in this respect by an offer of proof, counsel
sought to make the offer by question and answer When denied this method, counsel
made extensive offers of proof in narrative form, all of which were denied, for the
reason that the evidence offered was essentially the same evidence, and related to
the same issues, before the Regional Director in his investigation of Respondent's
objections to the second election and in the hearing on the challenges to the five
ballots.
Respondent's defense, as encompassed in the answer, the opening statement, the
offers of proof and the brief, cannot fairly be interpreted to proffer newly discovered
or previously unavailable evidence; or to rest on fraud, misconduct, or gross mistake
such as to imply bad faith; or the claim that under the facts involved, as a matter of
law, the election must be set aside. Authorities bearing on defenses such as these,
therefore, have no application here.
Respondent's Refusal and Failure to Bargain
By letter dated January 6, 1965, the Union requested Respondent to meet and
bargain with it on certain specified dates. On January 12, 1965, Respondent, reply-
ing to the Union's letter, set forth numerous reasons why it could not recognize the
Union as the representative of its employees, or bargain with the Union. Such
reasons all related to the alleged validity of the first election and the invalidity of
the second and as asserted, the erroneous determinations made by the Regional
Director with respect to Respondent's objections to the second election and the
Union's challenge of the five votes. It is on the basis of this demand and the con-
tinuing refusal that the General Counsel filed the complaint.
The Determination of the Unfair Labor Practice
It is the well-established policy of the Board that in consent elections of the kind
involved in this case, the Regional Director's determination is binding on the parties
who signed the consent agreement and is final. An exception to this policy would
permit a party who signed such an agreement to seek relief from the Regional Direc-
tor's determination in case of fraud, gross mistake, or misconduct. Notwithstanding
Respondent's assertion that the Regional Director's determinations in the instant case
were capricious and erroneous, there is nothing in the record to suggest that this
case falls within the stated exception which, in some of the cases, is also stated in
terms of capricious, arbitrary action. While a decider of facts, other than the
Regional Director, might have reached a different conclusion than the Regional
Director did on the supervisory status of Aulenbacher, and the merits of Respondent's
objections to the second election, there is no evidence here to indicate that such
determinations were anything other than his sound judgment applied to the facts dis-
closed through his investigation of the objections and the hearing held on the chal-
lenge to the supervisor's vote. Thus, in reality, Respondent's defense is an attack on
the Regional Director's judgment.
The Board rule, that binds the parties to their bargain in a consent-election agree-
ment, is good . It expedites resolution of questions concerning representation; frees
parties who choose to use it according to its purpose, of troublesome contests; and by
virtue of interrelated protective rules, prevents actual miscarriage of fair and just
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results. The detriment, if any, that the parties assume in return for the stated advan-
tages, is the forfeiture of the right of review of the initial determination of questions
such as these involved here-the merits of objections to an election and alleged super-
visory status of an employee. When these matters are in dispute they nearly always
involve close, difficult questions. The loss of right of review can hardly be of great
consequence; for, if there were some way to measure it, the gain in accuracy as the
decision moves up the procedural ladder from Regional Director to Trial Examiner
to Board, would in all liklihood be negligible.
There are numerous Board decisions, quite uniformly supported by the courts, that
delineate and apply the policy of the Board that denies a respondent in a case such
as this, the right to litigate the matters resolved by the Regional Director, and that
requires no further consideration on the merits of the issues that were before him.
One such case, that seems to be controlling here, is Howard, George, and Oliver
Rippee d/b/a Pacific Multiforms Company, 138 NLRB 796.
While Respondent claimed the right to litigate the objections and challenges in
the absence of a hearing on the objections, on authority cited in the brief, none of
which is deemed controlling or applicable in this situation, counsel for Respondent
relied on another theory that is novel and somewhat inventive. The theory is this:
that the Board in rendering the decision in Bernel Foam Products Co., Inc., 146 NLRB
1277, adopted a policy that relieved unions of the binding effect of waiver, estoppel
and an election of remedies, when confronted with a choice of proceeding to an elec-
tion for representation with knowledge of the commission of unfair labor practices
by the employer, or on the other hand proceeding in an unfair labor practice case;
drawing an analogy to the situation of an employer who has signed an agreement
for a consent election, and who thereby relinquished the right to procedures not
specified in the consent election agreement, counsel for Respondent argues that the
Board must in fair and equal treatment of employers and unions alike, now, by virtue
of Bernel Foam relieve the employer, Respondent in this case, of the bargain it made
when it signed the consent for the election. Notwithstanding such surface appeal as
this theory may have, I find and conclude that the Bernel Foam doctrine has no
application to the issues in this case.
In view of the foregoing, and inasmuch as the Respondent has declined to honor the
certification of the Union, and has persistently refused to bargain with the Union,
which I conclude is the exclusive representative of the employees of the unit, I find
that Respondent has violated Section 8 (a) (5) and (1) of the Act.
RECOMMENDED ORDER
On the foregoing findings of fact and conclusions of law and the entire record in
the case, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that the Respondent, Shawnee Plastics, Inc., Evansville,
Indiana, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, hours, and terms and con-
ditions of employment with District 153 of the International Association of Machin-
ists, AFL-CIO, as the exclusive representative of all employees in the following
appropriate unit:
All production and maintenance employees at the Employer's Evansville, Indiana,
plant, including leadmen and the truckdrivers; but excluding all office clerical employ-
ees, foreman, plant clerical employees, professional employees, guards, and super-
visors as defined in the Act.
(b) In any like or related manner interfering with the efforts of District 153 of the
International Association of Machinists, AFL-CIO, to bargain collectively.
2. Take the following affirmative action to effectuate the policies of the Act-
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of all employees in the appropriate unit, and, if an
understanding is reached, embody such understanding in a signed agreement.
(b) Post at its plant at Evansville, Indiana, copies of the attached notice marked
"Appendix." 1 Copies of said notice, to be furnished by the Regional Director of
Region 25, shall after being duly signed by the Respondent's authorized represent-
ative, be posted by the Respondent immediately upon receipt thereof, and be main-
i 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".
EUREKA NEWSPAPERS , INC. 1181
tamed 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 material.
(c) Notify the Regional Director for Region 25, in writing, within 20 days from
the date of receipt of this Decision , what steps it has taken to comply herewith?
2 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 25, in writing, within
10 days from the date of this Order, what steps it 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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with District 153 of the International Associa-
tion of Machinists, AFL-CIO, as the exclusive representative of all the employees
in the bargaining unit described below with respect to rates of pay, wages, hours
and other conditions of employment, and, if an understanding is reached,
embody such an understanding in a signed agreement.
WE WILL NOT interfere with the efforts of District 153 of the International
Association of Machinists, AFL-CIO, to bargain collectively.
The bargaining unit is:
All production and maintenance employees employed at the Employer's
Evansville, Indiana, plant, including a leadman and the truckdrivers; but
excluding all office clerical employees, foreman, plant clerical employees,
professional employees, guards, and supervisors as defined in the Act.
SHAWNEE PLASTICS, 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 pro-
visions, they may communicate directly with the Board's Regional Office, 150 West
Market Street, Indianapolis, Indiana, Telephone No. Melrose 3-8921.
Eureka Newspapers , Inc. and Teamsters , Warehousemen and
Auto Truck Drivers Local 684, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America,
Petitioner. Case No. 20-RC-641. September 14, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Joe R. McCray of the National Labor Relations Board. 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 in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagorial.
154 NLRB No. 102.