United Shoe Machinery Corp.

National Labor Relations Board - Board Decisions

Nov 15, 1968

173 N.L.R.B. 834 (N.L.R.B. 1968)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Shoe Machinery Corporation Beverly Manu-
facturing Division and Local 271, United Electri-
cal, Radio and Machine Workers of America (UE).
Case 1-CA-6352.
November 15, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 14, 1968, Trial Examiner Charles W.
Schneider 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 Decision. Thereafter, the
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 briefs, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial Ex-
aminer.
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, United Shoe Machinery
Corporation, Beverly Manufacturing Division,
Beverly, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
I The fifth word in in. 1 of the Trial Examiner's Decision is changed
from "of" to "is."
TRIAL EXAMINER'S DECISION
THE REPRESENTATION PROCEEDING'
'CHARLES W. SCHNEIDER Upon a petition duly filed
under Section 9(c) of the National Labor Relations
I Administrative or official notice of taken of the record in the
representation proceeding , Case I -RC-9845 as the term "record" is
defined in Section 102.68 and 102 .69(f) of the Board's Rules (Rules
and Regulations and Statements of Procedure, National Labor Relations
Board , Series 8 as revised January 1, 1965 ). See LTV Electrosystems,
Act, by Local 271, United Electrical, Radio and Machine
Workers of America (UE), the Union, concerning employees of
United Shoe Machinery Corporation, Beverly Manufacturing
Division, Beverly, Massachusetts, the Respondent, a hearing
was held before Robert D. McGrath, hearing officer of the
National Labor Relations Board. Thereafter on April 3, 1968,
the Regional Director of Region 1 issued his Decision and
Direction of Election. Respondent's subsequent request for
review of the Regional Director's Decision and Direction of
Election was denied by the Board on April 29, 1968, on the
ground that it raised "no substantial issues warranting review."
Pursuant to the Regional Director's decision, an election by
secret ballot was held on May 3, 1968, under the supervision
of the Regional Director, among the employees of Respondent
in an appropriate unit described hereinafter. The Union
received a majority of the valid votes cast in the election. On
May 13, 1968, the Regional Director issued his Certification of
Representative in which he certified the Union as the exclusive
representative of all the employees in the appropriate unit.
THE UNFAIR LABOR PRACTICE PROCEEDING
The Respondent thereafter declined to bargain with the
Union, and on May 31, 1968 the Union filed an unfair labor
practice charge to that effect against the Respondent. On June
24, 1968, the Regional Director issued a Complaint and Notice
of Hearing alleging that the Respondent had committed unfair
labor practices in violation of Section 8(a)(1) and (5) of the
Act by refusing to bargain collectively with the Union.
Respondent filed an Answer to the complaint on July 3, 1968.
On July 10, 1968, the Regional Director issued an
Amendment to the Complaint and on July 18, 1968, Respond-
ent filed an answer to the amended complaint in which it
admitted some of the allegations of the complaint as amended
and denied others.
Specifically, the Respondent admitted the jurisdictional
allegations of the complaint, its engagement in commerce,
that the Union is a labor organization, the fact of the election
and the certification, the request by the Union to bargain
collectively, and its refusal to bargain collectively with the
Union. Respondent stated that its purpose in so refusing to
bargain collectively with the Union was to obtain judicial
review of the Decision and Direction of Election of the Board
dated April 3, 1968, and the Certification of the Board, dated
May 13, 1968, for Respondent asserted that in both decisions
the Board was in error. Respondent denied that the Union was
the exclusive representative of all the employees in the unit
described hereinafter for the purposes of collective bargaining.
Respondent denied the appropriateness of the unit, the
Union's representative status, and the commission of unfair
labor practices affecting commerce.
Under date of July 23, 1968, counsel for the General
Counsel filed a Motion for Summary Judgment stating in
effect that there were no issues of fact or law requiring a
hearing. Attached to the Motion were a copy of a letter dated
May 22, 1968, from the business agent of the Union, addressed
to the general superintendent of Respondent , requesting
Respondent to bargain with the Union, and a copy of a reply
Inc, 166 NLRB No. 81 enfd . 338 F.2d 683 (C.A. 4, 1968), Golden Age
Beverage Co., 167 NLRB No 24, Intertype Co., v Penello, 269 F.Supp.
573 (U.S.D.C. W. D. Va. 1967), Follett Corp. 164 NLRB 378 enfd. 397
F 2d 91 (C.A. 7, 1968 ), Section 9 (d) of the National Labor Relations
Act
173 NLRB No. 122
UNITED SHOE MACHINERY CORP. 835
from Respondent's general superintendent, dated May 29,
1968, refusing to recognize or bargain with the Union because
the Board's decision raised a "substantial question of law."
The authenticity of these letters is not contested.
On July 24, 1968, I issued an Order to Show Cause on the
Motion for Summary Judgment in which the parties were
directed to show cause in writing on or before August 8, 1968,
as to whether or not the Motion for Summary Judgment
should be granted. On August 8, 1968, the Respondent filed a
Response to the Order to Show Cause. No other response has
been received. The Respondent's Response states that the
Board erred as a matter of law in finding as appropriate a
bargaining unit limited to technical employees of Respondent's
Beverly Manufacturing Division. Respondent argues that there
is an issue of law and fact between the parties and that
granting of the Summary Judgment would thus be violative of
Section 10(b) of the Act which requires a hearing in such
cases.
RULING ON MOTION FOR SUMMARY JUDGMENT
of business at Boston, Massachusetts and a manufacturing
plant at Beverly, Massachusetts (the Beverly plant herein)
where it has been and is now continuously engaged in the
manufacture, sale and distribution of industrial machinery and
related products Respondent in the course and conduct of its
business continuously causes large quantities of shoe machines
to be sold and transported from the Beverly plant to points
outside the Commonwealth of Massachusetts.
Respondent annually receives directly from points outside
the Commonwealth of Massachusetts materials valued in excess
of $50,000 and annually ships directly to points outside
Massachusetts products valued in excess of $50,000.
Respondent is and has been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material herein,
a labor organization , within the meaning of Section 2 (5) of the
Act.
It is established Board policy, in the absence of newly
discovered or previously unavailable evidence or special cir-
cumstances, not to permit litigation before a Trial Examiner in
an unfair labor practice case of issues which were or could have
been litigated in a prior related representation proceeding.2
No contention is made here of the existence of newly
discovered or previously unavailable evidence or of special
circumstances. Rather, Respondent asserts that the Regional
Director's unit determination and the determination as to the
validity of the election were erroneous. In such a situation the
disposition of the representation matter is the law of the case
at this stage of the proceeding, and is binding on the Trial
Examiner. This is not to say that the Respondent cannot test
the validity of the Board's conclusions. It can do this in an
enforcement or review action before the circuit court of
appeals, in the event that the Board issues an order in this
proceeding requiring the Respondent to bargain with the
Union. The record made before the Board here and in the
proceeding before the Regional Director will be before the
court for evaluation-see Section 9(d) of the Act. The
Respondent may also request the Board to reconsider and
review its determination in the representation case-either
independently or in connection with any exceptions which
may be filed to this Decision. Under the circumstances here,
however, there are no issues litigable before a Trial Examiner
or requiring hearing under Section 10 of the Act. Summary
Judgment is therefore appropriate and the Motion of Counsel
for the General Counsel for the entry of such a judgment is
now granted. Metropolitan Life Insurance Company, 163
NLRB 579, Baumritter Corp. v.N.L.R.B., 386 F.2d 117 (C.A.
1, 1967).
I hereby make the following further:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent is now and has been at all times material herein
a corporation duly organized and existing by virtue of the laws
of the State of New Jersey with its principal office and place
2 Howard Johnson Company, 164 NLRB 801, Metropolitan Life
Insurance Co., 163 NLRB 579, Pittsburgh Plate Glass Co, v. N.L.R.B.
III. THE UNFAIR LABOR PRACTICES
The following constitutes an appropriate bargaining unit
within the meaning of Section 9(b) of the Act
All technical employees employed by the Respondent at its
Beverly Manufacturing Division, Beverly, Massachusetts,
including its tool designers, draftsmen, operation writers
and checkers, methods writers and checkers, manufacturing
engineers, tool engineers, specialty and investigating engi-
neers, design engineers, photographer and assistant photo-
grapher, inspection planner, toolroom engineer, program
analyst, programmers and associate programmers, but
excluding all other employees, office clerical employees,
plant clerical employees, professional employees, guards
and supervisors as defined in the Act.
On May 3, 1968, a majority of the employees of Respon-
dent in the appropriate unit by a secret ballot election
conducted under the supervision of the Regional Director for
Region 1 of the Board, designated the Union as their
representative for the purpose of collective bargaining.
On May 13, 1968, the Regional Director of Region 1 on
behalf of the National Labor Relations Board certified the
Union as the exclusive collective bargaining representative of
all the employees in the appropriate unit.
At all times since May 3, 1968, the Union has been, and is
now the representative of a majority of the employees in the
appropriate unit for the purposes of collective bargaining, and
by virtue of Section 9(a) of the Act, the exclusive representa-
tive of all the employees in said unit for the purposes of
collective bargaining.
Commencing on May 22, 1968, and continuing to date, the
Union requested the Respondent to bargain with it as the
exclusive representative of the employees in the appropriate
unit.
On May 29, 1968, and at all times thereafter, Respondent
refused and has refused to bargain collectively with the Union
as the exclusive bargaining representative of all the employees
in the appropriate unit.
By thus refusing to bargain collectively with the Union the
313 U.S. 146, 162 ( 1941 ), Board Rules , Sections 102.67(f) and
102.69(c).
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent interfered with, restrained and coerced its employ-
ees in the exercise of rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Section 2(6)
and (7) of the Act.
Upon the foregoing findings and conclusions and the entire
record in the case, I recommend that the Board issue the
following
ORDER
A. For the purpose of determining the effective period of
duration of the certification, the initial year of certification
shall be deemed to begin on the date the Respondent com-
mences to bargain in good faith with the Union as the recogni-
zed bargaining representative in the appropriate unit. 3
B. United Shoe Manufacturing Corporation, Beverly Manu-
facturing Division, its officers, agents, successors, and assigns,
shall-
1. Cease and desist from
(a) Refusing to bargain collectively with Local 271, United
Electrical, Radio and Machine Workers of America (UE), as the
exclusive collective bargaining representative of the employees
in the following appropriate unit.
All technical employees employed by the Respondent at its
Beverly Manufacturing Division, Beverly, Massachusetts,
including its tool designers, draftsmen, operatic':i writers
and checkers, methods writers and checkers, manufacturing
engineers, tool engineers, specialty and investigating engi-
neers, design engineers, photographer and assistant photo-
grapher, inspection planner, toolroom engineer, program
analyst, programmers and associate programmers, but exclu-
ding all other employees, office clerical employees, plant
clerical employees, professional employees, guards and
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to negotiate
for or represent employees in the appropriate unit as the exclu-
sive 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 Local 271,
United Electrical, Radio and Machine Workers of America
(UE), as the exclusive representative of the employees in the
appropriate unit, with respect to rates of pay, wages, hours of
work, and other terms and conditions of employment, and em-
body in a signed agreement any understanding reached.
(b) Post at its Beverly, Massachusetts plant copies of the
attached notice marked "Appendix." 4 Copies of said notice,
on forms to be furnished by the Regional Director for Region
1, after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent immedi-
ately upon receipt thereof and maintained by it for 60 consec-
utive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said
notices are not altered, defaced or covered by any other mate-
rial.
(c) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps it
has taken to comply herewith. 5
3 The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the statutorily prescribed services of
their selected bargaining agent for the period provided by law See
Mar-Jac Poultry Co., Inc., 136 NLRB 785, Commerce Co dlb/a Lamar
Hotel, 140 NLRB 226 , 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied
379 U.S. 817 (1964), Burnett Construction Co, 149 NLRB 1419,
1421, enfd . 350 F.2d 57, (C.A. 10, 1965).
4 In the event this recommended Order is 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 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."
5 In the event this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director
for Region 1, in writing , within 10 days from receipt 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 Relations Act, as amended,
we hereby notify our employees that.
WE WILL NOT refuse to bargain collectively with Local
271, United Electrical, Radio and Machine Workers of
America (UE), as the exclusive bargaining representative of
all our employees in the following appropriate unit:
All technical employees employed by us at our Beverly
Manufacturing Division, Beverly, Massachusetts, in-
cluding tool designers, draftsmen, operation writers and
checkers, methods writers and checkers, manufacturing
engineers, tool engineers, specialty and investigating engi-
neers, design engineers, photographer and assistant
photographer, inspection planner, toolroom engineer,
program analyst, programmers and associate program-
mers, but excluding all other employees, office clerical
employees, plant clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of said Union
to negotiate for or represent the employees in the appro-
priate unit as the exclusive collective bargaining repre-
sentative.
WE WILL bargain with the Union as the exclusive repre-
sentative of the employees, and if an understanding is
reached we will sign a contract with the Union
UNITED SHOE MACHINERY
CORPORATION
BEVERLY MANUFACTURING
DIVISION
(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 provisions, they may communicate
directly with the Board's Regional Office, John F. Kennedy
Fed. Bldg., 20th Fl., Cambridge and New Sudbury Streets,
Boston, Massachusetts Telephone 223-3300.