Warner Co.

National Labor Relations Board - Board Decisions

Sep 20, 1965

154 N.L.R.B. 1339 (N.L.R.B. 1965)

WARNER COMPANY 1339
3. By changing the status of Thomas O. Kent from that of a temporary worker
to that of a permanent worker and seeking to make it appear that he was such at the
time of the Board's ordered election, the Respondent sought to defeat the Union in an
election sought by its employees for the purpose of obtaining collective-bargaining
rights, and Respondent did thereby discriminate, and is discriminating, in regard to
hire or tenure or terms or conditions of employment of its employees, thus discour-
aging membership in that labor organization and did thereby engage in and is engag-
ing in an unfair labor practice affecting commerce within the meaning of Section
8(a) (3) of the Act.
4. By the same conduct, Respondent did interfere with, restrain, and coerce, and
is interfering with, restraining, and coercing, its employees in the exercise of their
rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging
in an unfair labor practice affecting commerce within the meaning of Section
8 (a) (1) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and 2(7) of the Act.2
Recommended Order omitted from publication.
2 Afay Department Stores, d/b/a Famous-Barr Company v N.L R.B., 326 U S. 376;
Bethlehem Steel Company v. N L.R.B., 120 F. 2d 641 (C.A D C.)
Warner Company and Office Employes International Union,
Local No. 14, AFL-CIO. Case No. 4.-CA-3563. September 20,
1965
DECISION AND ORDER
On June 23 , 1965, Trial Examiner Harry H. Buskin issued his
Decision 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 Trial Examiner 's Deci-
sion. Thereafter , the Respondent filed exceptions to the 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 [Chairman McCulloch and Members Fanning and Jenkins].
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
'The Respondent offered to prove that, subsequent to the close of the hearing in
the representation proceeding, the duties of employees whom the Board found to con-
stitute an appropriate unit, and whom the Respondent contended are supervisors, have
changed. The Respondent asserts that the Trial Examiner erred in rejecting its offer
of proof and testimony relating to the unit issue. The Trial Examiner excluded the
evidence in question on grounds that the duties of some of the employees in the unit
admittedly have not changed , and that the rejected matters were essentially the same
as those which the Respondent had previously presented to the Board in the course of
the representation proceeding . The record supports this conclusion , and the Trial Ex-
aminer 's ruling was therefore not erroneous . In any event , we are satisfied from our
examination of the Respondent 's offer of proof that the evidence the Respondent would
now adduce would not have affected the validity of the Board's unit determination as
made. See Dewey Portland Cement Company , 142 NLRB 951 , footnote 1.
154 NLRB No. 112.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
niendations 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, Warner Company, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.2
2 The telephone number for region 4, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, Is amended to read: Telephone No. 597-7617.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Harry H. Kuskin at Philadelphia,
Pennsylvania, on May 3, 1965, pursuant to a charge filed on February 11, 1965, and
a complaint issued March 5, 1965. It presents the question whether Warner Com-
pany, herein called the Respondent, has since on or about February 3. 1965, refused
to bargain collectively with Office Employes International Union, Local No. 14,
AFL-CIO, herein called the Union, as the exclusive bargaining representative of the
Respondent's employees in an appropriate unit in violation of Section 8(a)(5) and
(1) of the Act In substance, the Respondent admits the allegations of the complaint
pertaining to commerce and to the refusal to bargain but denies that the refusal was
or is unlawful it takes the position that all of the individuals in the unit are super-
visors and that there is no obligation under the Act to bargain for a unit of
supervisors
At the hearing, all parties were represented and participated. As hereinafter
appears, I took no testimony during the hearing but the Respondent orally made
several offers of proof, supporting them in part, by exhibits. The parties waived
oral argument, but have submitted briefs.
Upon the entire record in this case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the Respondent admits, that it is a Delaware corpora-
tion, has it principal office in Philadelphia, Pennsylvania, and is engaged in the
business of quarrying, processing, manufacturing, and selling of building materials
including ready-mixed concrete; and further that during the past year it shipped
products valued in excess of $50,000 from its locations in Pennsylvania and Delaware.
I find, upon the foregoing, that the Respondent is engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Respondent conceded the Union's status as a labor organization in the repre-
sentation proceeding, Case No. 4-RC-5807, which was the precursor of this pro-
ceeding, and it conceded at this hearing that the Union represents employees of other
employers for collective bargaining. However, it here denies the Union's status,
allegedly because all the individuals in the unit as certified by the Board are super-
visors and the Union does not therefore represent any employees of this Respondent.1
'The Respondent's counsel asked that the labor organization issue be kept open for
the briefs. However, the Respondent's brief to me makes no reference thereto.
WARNER COMPANY 1341
I find, as did the Board in the representation proceeding, that the Union is a labor
organization within the meaning of the Act. Additionally, apart from all other
considerations, the fact that the Union concededly represents employees of other
employers for collective-bargaining purposes alone suffices to establish it as a labor
organization under Section 2(5) of the Act.2
III. THE UNFAIR LABOR PRACTICES
A. Background, case history, and facts
On March 3 and 12, 1964, upon a petition filed by the Union in a proceeding under
Section 9(c) of the Act, a hearing was held in Case No. 4-RC-5807, before a Hearing
Officer. On April 7,3 the Regional Director issued a Decision and Direction of
Election in which he ordered an election in a unit of shippers, dry shippers, order
takers, and shipper-order takers at five mixing installations of the Respondent in the
Philadelphia, Pennsylvania, area, which he found to be appropriate, to determine
whether or not the said employees desired to be represented for collective-bargaining
purposes by the Union. On April 14, the Respondent filed a motion for reconsidera-
tion with the Regional Director. Local 161, International Brotherhood of Teamsters,
Chauffeurs, Warehousmen and Helpers of America, an Intervenor in that proceeding,
filed an answer to the motion for reconsideration. On April 24, the Regional
Director issued an order denying that motion. The Respondent thereupon filed a
request for review with the Board on April 27, on the ground that the Regional
Director had erroneously determined that the individuals in the unit were not super-
visors within the meaning of Section 2 (11) of the Act. The request was granted on
September 14. The Board affirmed the Regional Director, in toto, on December 11,
adding that "we are satisfied that the record substantially supports the Regional
Director's findings under review." An election was thereafter held on Janu-
ary 12, 1965, in which approximately 16 employees were eligible and, of these,
10 cast votes for the Union and 4 cast votes for the Intervenor. There were no
challenged ballots Thereafter, on January 25, 1965, the Regional Director, on
behalf of the Board, certified the Union as the bargaining representative of the
employees in the unit described above.
On January 26, 1965, the Union, in writing, requested that the Respondent meet
with the Union for the purpose of negotiating a collective-bargaining agreement. By
answering letter, dated February 3, 1965, the Respondent, through counsel, stated
that while it was agreeing to meet with the Union "it should be understood that we
do not intend to negotiate with respect to the wages, hours and working conditions
of any employees who, in our opinion are supervisors. As counsel for the Warner
Company it is the opinion of this office that all of the employees in the certified unit
are supervisors." On February 11, 1965, the Union filed its charge alleging the
Respondent's refusal to bargain as unlawful and thereafter on March 4, 1965, the
Regional Director issued the complaint herein.
At the outset of the hearing herein, counsel for the General Counsel moved for
judgment on the pleadings. In order to afford the Respondent the maximum oppor-
tunity to present argument and proof in support of its position that it had not
violated the Act, I withheld ruling of this motion. Counsel for the Respondent then
set forth the Respondent's position which was, in substance, that the Board's unit
determination in the representation proceeding was incorrect when made and is even
more incorrect in light of developments at various installations covered by the unit,
subsequent to the hearing in that proceeding. In the latter connection, it sought to
introduce evidence that (1) 3 of the individuals in the claimed bargaining unit were
permanently promoted to supervisory positions of yard managers and that 9 of them
(including 2 of the 3 already mentioned and 1, Greenhalgh, who is no longer with
the Respondent) served on 10 occasions for various periods of time as acting yard
managers and on 1 occasion as storekeeper; (2) that the driver work force supervised
by the contested supervisors had increased at nearly all locations and seasons; and
(3) that the contested individuals performed numerous acts of discipline (including
suspensions) and adjusted grievances by participation in formal grievance meetings
with the union representatives of the drivers. It is significant, in this connection,
2International Organization of Masters, Mates and Pilots of America, Inc, AFL-CIO,
et at. (Chicago Calumet Stevedoring Co., Inc.), 144 NLRB 1172, 1177, including cases
cited in footnote 7.
3 All dates refer to 1964, unless otherwise indicated.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that although asserting thes echanged circumstances, the Respondent, in effect, con-
ceded that 4 or 5 individuals of the 14 in the unit, by its count, had not been involved
in such changes, leaving their job functions and duties the same as theretofore. I
refused to permit the Respondent to introduce evidence as to the asserted changed
circumstances, which, except for the fact that it postdated the representation hearing,
appeared from the representations of counsel to be of the same character as that
adduced at such hearing and considered by the Regional Director and the Board.4
However, I did allow counsel for the Respondent to make offers of proof, which
were made orally on the record. I rejected the evidence offered in connection with
the offers of proof as well as the accompanying exhibits which have been made part
of the record herein as rejected exhibits. I also requested that the parties file briefs
in support of their respective positions.
B. Concluding findings
I am persuaded, under all the circumstances, that the motion for judgment on the
pleadings should be granted. I must reject the Respondent's contention that the
Board was legally wrong in its unit determination and that the Union has therefore
improperly been certified. It is well settled that issues which were raised in the
underlying representation case and there litigated and decided by the Board may not
be relitigated in the subsequent unfair labor practice case. The Trial Examiner is
bound by the Board's action regarding such matters.5 While the Respondent con-
cedes in its brief that a Trial Examiner need not hear new evidence that is of such
slight probative value that it would not affect the outcome of this proceeding, it
argues that the proferred evidence should be received here because it is "new or
previously undiscoverable evidence" and may affect the outcome. The difficulty with
the Respondent's position is that the evidence sought to be adduced may not properly
be characterized as new or undiscoverable evidence. To the contrary, it is cumulative
evidence, i.e., "additional corroborative evidence to the same point ... which goes to
prove what has clearly been established by other evidence." 6 Indeed, to hold such
evidence to be newly discovered or to admit it on the ground that it was unavailable
at the time of the hearing is to distort the meaning of these legal concepts. No
certification would then be free from attack after issuance, because additional evi-
dence of the same character can normally be produced after the representation
hearing, bearing on the same point as to which evidence was offered during such
hearing. Accordingly, the cases cited by the Respondent in its brief in support of
this proposition are inapposite.
Further, having failed to challenge these voters at the January 12, 1965, election,
by which time virtually all the claimed changes in operations had occurred, the
Respondent is, in effect, seeking to raise the issue of the eligibility of these employees
to vote by way of postelection challenges. This it cannot do under well-settled law.7
In sum, the matters sought to be proved, i.e., changed circumstances that allegedly
occurred after the hearing conducted in the representation case can, in view of all
the foregoing, have no material bearing on the appropriateness of the unit, as found
by the Regional Director and affirmed on review by the Board. There being no
'That this is so is apparent from the Respondent's brief to me Thus, as to the
three employees who were promoted to job classifications which were allegedly super-
visory, the brief alludes to testimony in the representation hearing which shows that
"4 out of 5 managers (in the yards affected by the petition) were men who had previously
been shippers or order takers." Also, as to the nine individuals allegedly assigned for
varying periods as acting yard managers, the brief says "when this dispute was first
heard in the representation case, it became a matter of record that shippers and order
takers were regularly used to replace yard managers to might be ill or on vacation."
And, as to the asserted increase in the number of drivers, the brief adverts to evidence
therein as to the large number of drivers at the installations involved Further, in re-
spect to the asserted acts of discipline and grievance handling, the brief comments that
"transcripts (in the representation case) of formal grievance meetings with Teamsters
locals reveal that shippers are among the principal management representatives." Addi-
tionally, the brief refers to evidence in that record as to the power of these individuals to
discipline subordinates.
5 Pittsburgh Plate Glass Company v. N.L R.B., 313 U S. 146, 161-162 ; Quaker City
Life Insurance Company, 138 NLRB 61, enfd. 319 F. 2d 690 (CA. 4) ; Teleservice Co.
of Wyoming Valley, 149 NLRB 1053.
e Black's Law Dictionary (4th Ed ), p. 455.
7 N.L.R B. v. A. J. Tower Company, 329 U.S. 324.
WARNER COMPANY 1343
triable issue and hence no necessity for the taking of evidence upon the pleadings,
the General Counsel's motion for relief in the nature of judgment on the pleadings
has merit.8
In any event, as already noted, the Respondent, in effect, concedes that the job
functions and duties of four or five individuals in the unit have not changed since the
representation hearing. It follows therefrom, just as would be the case in a reduction
in force or shrinkage in the size of a unit, that the Respondent's obligation to bargain
on behalf of the individuals in the unit, albeit reduced in size, continued irrespective
of whether there was a change in status of the others initially included in the unit.
For this reason alone, judgment on the pleadings is warranted.
Accordingly, for the reasons set forth above, the General Counsel's motion for
judgment on the pleadings is granted.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease
and desist therefrom and from interfering in any like or related manner with the
efforts of the Union to bargain collectively with the Respondent.
In accordance with the prayer of the General Counsel's motion at the hearing,
upon the basis of the allegations of the complaint and the Respondent's answer and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. All shippers, dry shippeis, order takers, shipper-order takers employed at the
Respondent's mixing installations located at 51st Street and Tyson Street, Phila-
delphia; Johnson Yard, Paoli; Morrisville Yard, Morrisville; and the Chester Yard,
Chester, Pennsylvania, excluding all other employees, professional employees, guards,
watchmen, and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining.
4. On January 12, 1965, a majority of the employees of the Respondent in the unit
described above in paragraph 3, by a secret-ballot election conducted under the
supervision of the Regional Director for Region 4 of the National Labor Relations
Board, designated and selected the Union as their representative for the purposes of
collective bargaining with the Respondent, and on January 25, 1965, the National
Labor Relations Board certified the Union as the collective-bargaining representative
of the employees in said unit.
5. The Union, since the date of its certification, January 25, 1965, has been and
now is the exclusive representative of all employees in the aforesaid appropriate unit
for purposes of collective bargaining.
6. By refusing, on and since February 3, 1965, to bargain collectively with the
Union as the representative of the above employees, the Respondent has engaged
in and is engaging in unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case , and pursuant to Section 10(c) of the National Labor Rela-
tions Act , as amended , I recommend that the Respondent , Warner Company , it offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning rates of pay , wages,
hours of employment , or other conditions of employment with Office Employees
International Union, Local No. 14 , AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All shippers, dry shippers , order takers , shipper-order takers employed at the
Respondent 's mixing installations located at 51st Street and Tyson Street, Phila-
8 See Charles Fay v. Douds (Parker-Kalov. Corp ), 172 F 2d 720, 725, in which the
court held that: "Neither the statute nor the constitution gives a hearing where there
is no issue to decide. See also N.L.R B. V. Air Control Products, 335 F 2d 245, 250
(C.A. 5)." ... if the facts would not amount in law to a justification for setting the
election aside , no hearing is required at any stage."
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delphia; Johnson Yard, Paoli; Morrisville Yard, Morrisville, and the Chester Yard,
Chester Pennsylvania, excluding all other employees, professional employees, guards,
watchmen, and supervisors as defined in the Act.
(b) In any like or related manner interfering with the efforts of the above-named
Union to bargain collectively on behalf of the employees in the above-described unit.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act.
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Post at each of its mixing installations in the Philadelphia, Pennsylvania, area,
copies of the attached notice marked "Appendix." 9 Copies of such notice, to be
furnished by the Regional Director for Region 4, shall, after being signed by an
authorized representative of the Respondent, be posted immediately upon the receipt
thereof, and be maintained by it for a period of 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 such
notices are not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision, what steps the Respondent has
taken to comply herewith.10
u In the event that 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 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".
10 In the event that this Recommended Order is 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 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 Office Employes International
Union, Local No. 14, AFL-CIO, as the exclusive representative of all the
employees in the bargaining unit described below.
WE WILL, upon request, bargain with Office Employes International Union,
Local No. 14, AFL-CIO, as the exclusive representative of all the employees
in the bargaining unit described below with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment, and, if an
understanding is reached, embody such an understanding in a signed agreement.
The bargaining unit is:
All shippers, dry shippers, order takers, shipper-order takers employed
at the Respondent's mixing installations located at 51st Street and Tyson
Street, Philadelphia; Johnson Yard, Paoli; Morrisville Yard, Morrisville;
and the Chester Yard, Chester, Pennsylvania, excluding all other employees,
professional employees, guards, watchmen, and supervisors as defined in
the Act.
WARNER COMPANY,
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, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612.