The Baldt Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1970

181 N.L.R.B. 173 (N.L.R.B. 1970)

THE D & M COMPANY 173
The D & M Company , a division of The Baldt
Corporation and Oil , Chemical and Atomic
Workers International Union , AFL-CIO. Case
22-CA-3904
February 16, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 26, 1969, Trial Examiner Charles
W. Schneider issued his Decision in the
above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
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.
The Board has considered the Trial Examiner's
Decision, the exceptions and supporting brief, and
the entire record in this 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 adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, The D & M
Company, A Division of The Baldt Corporation,
Milltown, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
The Representation Proceeding'
Upon a petition filed under Section 9(c) of the National
Labor Relations Act (29 U.S.C.A. 159(c)) on March 6,
1969, by Oil, Chemical and Atomic Workers International
Union, AFL-CIO, herein called the Union, and pursuant
to a stipulation for certification upon consent election
thereafter executed by the Union and D & M Company, a
division of The Baldt Corporation, herein called the
Respondent, and approved by the Regional Director on
March 18, 1969, an election by secret ballot was
conducted on April 10, 1969, among all production and
maintenance employees employed by the Respondent at
its Milltown, New Jersey, location during the payroll
period ending midnight, Sunday, March 16, 1969,
excluding office clerical employees, professional
employees, watchmen, guards and supervisors as defined
in the Act.
Of the approximately 213 eligible voters 198 cast valid
ballots, of which 103 were for the Union; 92 were against
the Union, 3 were challenged, and none were void. The
challenges were not sufficient in number to affect the
results of the election.
On April 17, 1969, the Respondent filed timely
objections to conduct affecting results of the election. In
brief, these objections alleged that union agents and
protagonists engaged in conversations and electioneering
among those employees waiting to vote at a time after the
polls were scheduled to open but prior to actual opening.
The objections further alleged threats to an employee by
union protagonists, improper election propaganda from a
discharged prounion employee, and manipulation of the
Board's procedures in order to appeal to the sympathy of
the Respondent's employees.
In accordance with the Board's Rules and Regulations,
the Regional Director investigated the Respondent's
objections and on May 21, 1969, issued his report on
objections in which he recommended to the Board that the
objections be overruled in their entirety and that the
Union be certified as the exclusive bargaining
representative of the employees in the appropriate unit.
Thereafter on June 10, 1969, the Respondent filed timely
exceptions to the Regional Director's report on objections
with the Board in Washington, D.C., along with a brief in
support thereof. The Respondent requested that the
election be set aside, or in the alternative that a hearing
be held on its objections.
On August 26, 1969, the Board issued a Decision and
Certification of Representative in which it stated that it
had considered the Regional Director's report on
objections, the exceptions and brief, and the entire record
in the case, and adopted the Regional Director's findings
and recommendations. The Board further said that, in its
opinion, the Respondent's exceptions raised "no material
or substantial issues of fact or law which require reversal
of the Regional Director's findings and recommendations
or necessitate a hearing in this proceeding." Consequently
the Board certified the Union as the bargaining
representative of the employees in the appropriate unit.
CHARLES W. SCHNEIDER, Trial Examiner: The case
arises on a motion for summary judgment filed by counsel
for the General Counsel upon an admitted refusal by the
Respondent to bargain with the certified Charging Union,
the Respondent contending that it was improperly denied
a hearing on its objections to the election in the related
representation case and that the certification of the Union
is therefore invalid.
'Official notice is taken of the record in the representation 'proceeding,
Case 22-RC-4308, as the term "record" is defined in Sec . 102.68 and
102.69(f) of the National Labor Relations Board 's Rules and Regulations
and Statements of Procedure , Series 8, as amended See LTV
Electrosystems, Inc, 166 NLRB No. 81, enfd 388 F.2d 683 (C A 4);
Golden Age Beverage Co. 167 NLRB No. 24, enfd . 415 F 2d 26 (C.A. 5);
Intertype Co v. Penello, 269 F Supp 573 (D.C. Va.), Intertype Co v.
N L R B. 401 F.2d 41 (C.A. 4); Follett Corp. et al, 164 NLRB No 47,
enfd 397 F.2d 91 (C A 7), Sec 9(d) of the National Labor Relations Act.
181 NLRB No. 33
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Unfair Labor Practice Case
On September 8, 1969, the Union filed the charge
involved in the instant case in which it alleged that since
on or about September 4, 1969, the Respondent had failed
and refused to bargain with the Union.
On September 19, 1969, the General Counsel, by the
Regional Director for Region 22, issued a complaint and
notice of hearing alleging that Respondent had committed
unfair labor practices in violation of Sections 8(a)(1) and
(5) and 2(6) and (7) of the Act by refusing to bargain with
the Union upon request. In due course, on September 29,
1969, the Respondent filed its answer to the complaint in
which it admitted certain material allegations of the
complaint but denied others. Thus, the Respondent
admitted its refusal to bargain with the Union following
the certification, but denied the representative status of
the Union. The answer asserted specifically that the
election was invalid and void by reason of conduct by the
Union and union protagonists which interfered with a free
choice by employees. Further the Respondent stated that
the Board violated its rules and regulations and procedural
due process in the representation case by (1) rejecting
without a hearing the issues raised by the Respondent, (2)
ignoring evidence, and (3) failing to consider the
cumulative effect of incidents bearing on the validity of
the election.
Under date of October 9, 1969, counsel for the General
Counsel filed a motion for summary judgment and
memorandum in support of motion for summary
judgment, in which he contended that the pleadings,
considered together with the official Board record in the
representation proceeding, raise no issues requiring a
hearing, and that therefore Respondent had no valid
defense to the complaint
On October 10, 1969, I issued an Order to Show Cause
on General Counsel's motion for summary judgment,
returnable October 27, 1969, and subsequently extended to
November 6, 1969, at the request of the Respondent and
without objection. The Respondent has filed a response in
opposition to General Counsel's motion. No other
responses have been received.
Ruling on Motion for Summary Judgment
The Respondent opposes the motion for summary
judgment for reasons stated hereinafter.
It is established Board policy, in absence of newly
discovered or previously unavailable evidence or special
circumstances not to permit litigation before a Trial
Examiner in a complaint case of issues which were or
could have been litigated in a prior related representation
proceeding.' This policy is applicable even though no
formal hearing on objections has been provided by the
Board. Such a hearing is not a matter of right unless
substantial and material issues are raised .' The Board has
determined that the Respondent's objections presented no
such issues here.
'Krieger-Ragsdale & Co. Inc. 159 NLRB 490, enfd . 379 F.2d 517
(C.A. 7), cert denied 389 U S 1041 ; N L R B v. Macomb Pottery, 376
F.2d 450 (C.A. 7); Howard Johnson Company, 164 NLRB No. 121,
Metropolitan Life Insurance Company, 163 NLRB No 71 See Pittsburgh
Plate Glass Co v NL.R B. 313 U.S 146, 162 ( 1941); NLRB Rules and
Regulations , Sec 102 .67(f) and 102.69(c).
'O K Van and Storage, Inc. 127 NLRB 1537, enfd. 297 F 2d 74 (C A
5). "If there is nothing to hear , then a hearing is a senseless and useless
formality ." See also N L R B v. Bata Shoe Co. 377 F 2d 821, 826 (C A
4), ". . . there is no requirement , constitutional or otherwise , that there be
The Respondent's contentions stated in its response to
the order to show cause may be summarized as follows-
(1) That summary judgment is unusual and should be
granted only where the objective facts and inferences to be
drawn therefrom are so clear as to leave only a question
of law to be resolved. Further, that summary judgment is
not to be used where a state of mind , motive, or intent are
involved.
(2) That summary judgment is not appropriate here for
the reason that genuine issues were raised in the
Respondent's objections to the election, which require
hearing. Further, citing N L R.B v. Harrah's Club, 403
F.2d 865, 870 (C.A. 9), the Respondent states that the
burden of determining whether substantial and material
issues were decided without hearing in the representation
case is on the Trial Examiner, and that the Board's rule
against relitigation of representation issues does not
prevent the Trial Examiner from determining whether
genuine issues of fact exist requiring hearing.
(3) That the Board 's findings of fact in ruling on the
Respondent's objections to the election were erroneous;
and that the Board found that there was no evidence to
establish certain conduct relied upon by the Respondent,
when in fact the Respondent had submitted specific
evidence of such conduct.
These contentions do not bar the entry of summary
judgment by a Trial Examiner
Admittedly summary judgment is an unusual procedure
and is to be granted only where the facts are clear and
there remains only the question as what conclusions of law
are to be drawn. In the instant case the facts found by the
Board are clear, and from those facts and the admissions
of the Respondent it follows that the Respondent has
failed to bargain with the representative of its employees.
The Board's findings are binding on the Trial Examiner
and may not be reviewed by him in the absence of new or
previously unavailable evidence or specific circumstances
- none of which are alleged here. I find no question as to
state of mind, motive, or intent which would raise any
factual issues requiring hearing If such questions had any
bearing on disposition of the Respondent's objections to
the election, they were necessarily resolved by the Board's
dismissal of the objections. Accepting the Board's
disposition of the representation case, there is no issue of
motive, intent or state of mind relevant to the allegations
of the complaint.
It is true that the opinion in the Harrah's Club case
states that the Trial Examiner there had "authority to
consider and decide whether there was a substantial and
material issue of fact crucial to the determination of the
propriety of certification of the election results." I am not
persuaded, however, that the court was thereby declaring
that the Board 's Trial Examiners have a general and
plenary authority to review the Board's decisions in
related representation cases if they deem the decisions
erroneous, or to ignore the Board's interlocutory orders in
unfair labor practice cases. In the Harrah's case the
Respondent sought permission of the Board during the
hearing before the Trial Examiner to appeal a ruling of
the Trial Examiner excluding evidence offered by the
Respondent bearing on the merit of the objections to the
election. The Board denied such permission and
ultimately, in its final decision, affirmed the Trial
Examiner's rulings.' If the portion of the Harrah's Club
a hearing in the absence of substantial and material issues crucial to
determination of whether NLRB election results are to be accepted for
purposes of certification "
'Harrah 's Club, et al, 158 NLRB 758, 759
THE D & M COMPANY 175
opinion referred to above is to be taken literally, as the
Respondent suggests, the Trial Examiner would be free to
review the Board's determinations in representation cases,
and at liberty to disregard the Board's rulings on
interlocutory appeals from orders of the Trial Examiner. I
hesitate to ascribe such intent to the court. With all
respect, I am compelled to observe that principles of
orderly administration of the Act require that the Trial
Examiner follow the precedents, policies, and orders of the
Board applicable to the particular proceeding. Due process
to the parties is assured in their right to request the Board
for reconsideration, and thereafter to review of the
Board's Decision in the court of appeals.'
The remaining contentions of the Respondent, that the
Board's findings of fact were erroneous, and its
restatement of positions previously advanced in the
representation proceeding, are in effect reiteration of
contentions already considered by or before the Board in
the representation proceeding
Since the Respondent offers no new or previously
unavailable evidence and no special circumstances are
apparent, it is found that all material issues raised by the
complaint have either been decided by the Board in the
representation proceeding or are admitted by the
Respondent. There thus being no matters requiring an
evidential hearing, the motion for summary judgment is
appropriate and is granted. Upon the record before me I
make the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of Delaware.
At all times material herein, Respondent has
maintained its principal office and plant at 40 Washington
Avenue, Milltown, New Jersey, herein called the Milltown
plant, and is now and at all times material herein has been
continuously engaged at said plant and at its service
center in Simpsonville, South Carolina, in the
manufacture, sale, and distribution of draw twist "pirns"
and plastic sleeves and related products. Respondent's
Milltown, New Jersey, plant is the only facility involved in
this proceeding.
In the course and conduct of Respondent's business
operations during the preceding 12 months, said
operations being representative of its operations at all
times material herein, Respondent caused to be
manufactured, sold and distributed at said Milltown plant,
products, goods and materials valued in excess of $50,000
of which, products, goods and materials valued in excess
'Apart from the Board 's policy, referred to above and modified in the
National Labor Relations Board 's Rules and Regulations and Statements
of Procedure , Series 8, as amended , Sec 102.67(f), forbidding the
rehtigation of representation issues in subsequent related unfair labor
practice proceedings , the Board has repeatedly held that Trial Examiners
must follow Board precedent until it is overruled by the Board or the
Supreme Court (Prudential Insurance Agents, 119 NLRB 768, Ranco
Inc, 109 NLRB 998, fn 8 ; Lenz Co, 153 NLRB 1399), even though there
may be contrary authority in the court of appeals (Iowa Beef Packers. 144
NLRB 615). While failure of the Board to seek certiorari may constitute
acquiesence by the Board to the court 's view in that circuit , even though
the Board may disagree with it (Teamsters Local 390, 119 NLRB 852;
Armco, Inc, 155 NLRB 551), the Trial Examiner may not give
significance to the Board 's failure to seek certiorari (Novak Logging Co
119 NLRB 1573; Scherrer Co, 119 NLRB 1587)
of $50,000 were shipped from said Milltown plant in
interstate commerce directly to states of the United States
other than the State of New Jersey.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III THE UNFAIR LABOR PRACTICES
All production and maintenance employees employed
by Respondent at its Milltown, New Jersey, location,
excluding office clerical employees, professional
employees, watchmen, 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 April 10, 1969, a majority of the
employees of Respondent in the appropriate unit, by a
secret-ballot election, designated and selected the Union as
their exclusive representative for the purpose of collective
bargaining with Respondent, and on or about August 26,
1969, the Board certified the Union as the exclusive
collective-bargaining representative of the employees in
said unit.
On or about September 4, 1969, the Union requested
Respondent to bargain collectively in the appropriate unit,
and on or about September 5, 1969, Respondent refused
and continues to refuse to recognize and bargain with the
Union in the appropriate unit.
By the refusal to bargain Respondent has engaged in
unfair labor practices affecting commerce in violation of
Sections 8(a)(5) and (1) and 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, pursuant
to Section 10(c) of the Act, I recommend that the Board
issue the following:
ORDER
A. For the purpose of determining the duration of the
certification, the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
exclusive bargaining representative in the appropriate
unit6
B. The D & M Company, a division of The Baldt
Corporation, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Oil, Chemical
and Atomic Workers International Union, AFL-CIO, as
the exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit:
All production and maintenance employees employed
by Respondent at its Milltown, New Jersey, location,
excluding office clerical employees, professional
'The purpose of this provision is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law. See Mar-Jac Poultry Co , 136
NLRB 785; Commerce Co . d/b/a Lamar Hotel, 140 NLRB 226, 229, 328
F 2d 600 (C A 5), cert denied 379 U.S. 817; Burnett Construction Co,
149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10).
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, watchmen, guards, and supervisors as
defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, as the exclusive representative of all the
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Post at its place of business in Milltown, New
Jersey, copies of the attached notice marked "Appendix."'
Copies of said notice on forms provided by the Regional
Director for Region 22, shall, after being duly signed by
an authorized representative of the Respondent, be posted
by the Respondent immediately upon receipt thereof and
maintained by the Respondent 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 22, in
writing, within 20 days from receipt of this Recommended
Order, what steps the Respondent has taken to comply
herewith
Dated By
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT refuse to bargain collectively with Oil,
Chemical and Atomic Workers International Union
AFL-CIO, as the exclusive collective-bargaining
representative of all the following employees:
All production and maintenance employees
employed at our Milltown, New Jersey, plant,
excluding office clerical employees, professional
employees, watchmen, guards, and supervisors as
defined in the Act.
WE WILL NOT interfere with the efforts of the Union
to negotiate for or represent employees as exclusive,
collective-bargaining representative.
WE WILL bargain, collectively with the Union as the
exclusive collective-bargaining representative of the,
employees in the appropriate unit, and if an
understanding is reached we will sign a contract with
the Union.
'In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the Board , the findings, conclusions,
recommendations , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and order, and all objections thereto shall
be deemed waived for all purposes. In the event that the Board 's Order is
enforced by a judgment of a United States Court of Appeals, the words in
the notice reading "Posted by Order of the 'National Labor Relations
Board" shall be changed to read "Posted pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 22, in writing , within 10 days from the receipt of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
THE D & M COMPANY, A
DIVISION OF THE BALDT
CORPORATION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
Federal Building, 16th Floor, 970 Broad Street, Newark,
New Jersey 07102, Telephone 201-645-2100.