Trojan Boat Co.

National Labor Relations Board - Board Decisions

May 12, 1969

175 N.L.R.B. 935 (N.L.R.B. 1969)

TROJAN BOAT COMPANY
Trojan Boat , Company and Industrial Union of
Marine and Shipbuilding Workers of America,
AFL-CIO. Case 5-CA-4227
May 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a charge filed by Industrial Union of
Marine and Shipbuilding Workers of America,
AFL-CIO, herein called the Union, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 5, issued a
Complaint and Notice of Hearing dated November
13, 1968, against Trojan Boat Company, herein
called Respondent, alleging that Respondent has
engaged in and is engaging in certain unfair labor
practices within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing were duly served
upon Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 28,
1968, the Union was duly certified in Case
5-RC-6412 (not published in NLRB volumes) as the
exclusive collective-bargaining representative of
Respondent's employees in the unit there found
appropriate, and that since on or about September
25, 1968,.Respondent has refused, and is refusing, to
recognize and bargain with the Union as such
exclusive bargaining representative, although the
Union has requested it to do so.
On November 26, 1968, Respondent filed its
answer, admitting that it had been served with the
charge herein, that it meets the Board's
jurisdictional standards and engages in commerce
within the meaning of the Act, and that the Union
is a labor organization within the meaning of the
Act. Respondent denied, however, the remaining
parts of the complaint which alleged that the Union
was the certified representative of an appropriate
unit of Respondent's employees at its Elkton,
Maryland, plant and that Respondent refused to
bargain with the Union upon the latter's request.
On November 29, 1968, the General Counsel filed
with the Board a Motion for Summary Judgment.
On December 3, 196$, the Board issued an Order,
transferring the proceeding to the Board and giving
Respondent notice to show cause why the General
Counsel's Motion for Summary Judgment should
not be granted.
On December 30, 1968, Respondent filed a
statement in opposition ' to the General Counsel's
Motion for Summary Judgment.
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.
935
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
The record before us establishes that on May 13,
1968, the Union filed a petition in Case 5-RC-6412,
seeking to represent all production and maintenance
employees, including janitors, at Respondent's
Elkton, Maryland, plant. At the hearing, the Union
amended its petition by stipulating with Respondent
to the inclusion of inspectors as part of the
production and maintenance unit. The Regional
Director for Region 5 thereafter issued a Decision
and Direction of Election on July 8, 1968, in which
he found appropriate for collective bargaining the
following unit of employees:
All production and maintenance employees,
including inspectors and janitors, employed by the
Employer [Respondent] at its Elkton, Maryland,
plant, excluding office clerical employees, guards,
and supervisors as defined in the Act.
Following the issuance of the Decision and
Direction of Election, Respondent on or about July
19, 1968, filed with the Board a request for review
of the above-mentioned Decision and Direction of
Election. On July 26, 1968, the Board issued its
denial of said request for review.
On August 2, 1968, pursuant to the Decision and
Direction of Election an election was held in which
a majority of the employees of Respondent in the
unit described above designated and selected the
Union as their representative for the purposes of
collective bargaining with Respondent.' Respondent
thereafter filed timely objections to the conduct of
the election. The Regional Director investigated the
objections, and on August 28, 1968, issued a
Supplemental Decision and Certification of
Representative, in which he overruled Respondent's
objections and certified the Union as the bargaining
representative for the employees in the
above-described unit.
Respondent's subsequent request for review of the
Regional Director's Supplemental Decision and
Certification was denied by the Board on September
19, 1968.
Respondent thereafter refused to bargain with the
Union upon the latter's request,2 and the instant
refusal to bargain charge was filed on or about
October 22, 1968.
In its statement in opposition to the General
Counsel's Motion, Respondent asserts as its
principal contention that the Union's certification in
'The single ballot challenged in the election could not affect the results
of the election.
'The General Counsel attached to the Motion for Summary Judgment
copies of letters purporting to show that the Union requested bargaining
and that Respondent refused to do so. Respondent does not contest the
authenticity of these letters in its statement in opposition to the General
Counsel's Motion.
175 NLRB No. 157
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the underlying representation proceeding is invalid
and that it is entitled to an evidentiary hearing in
order to determine alleged material issues of fact
relating to the representation proceeding. It appears,
however, that except as specifically noted below,
Respondent is attempting to do no more than
relitigate in the instant proceeding issues which were
previously decided by the Board in the underlying
representation case.' It is well established that in the
absence of newly discovered or previously
unavailable evidence, an employer is not entitled to
relitigate in a Section 8(a)(5) proceeding issues
which were, or could have been, raised in the
underlying representation proceeding. Accordingly,
we find without merit Respondent's claim that the
election conducted in the representation proceeding
is invalid and that an evidentiary hearing is needed
to consider material issues of fact relating to said
proceeding.
Respondent also claims that the unit became
inappropriate due to a change in circumstances
subsequent to the issuance of the Union's
certification. In particular, it asserts that it
introduced fiberglass components at its Elkton,
Maryland, plant, transferred a significant number of
employees from Lancaster to the Elkton plant and
utilizes the same supervisory personnel to train and
direct the work forces in Elkton and Lancaster.
Respondent urges, therefore, that a hearing is
necessary to determine whether or not such
"changed circumstances" render our original unit
determination inappropriate. We note, however, that
Respondent did not make any specific offer of proof
regarding the purported transfers, but merely claims
in vague, conclusionary language that "a significant
number" of such transfers have occurred. Assuming,
arguendo, that some employees have in fact
transferred, this would not affect our original unit
determination since, as Respondent states, the
transfers are permanent in nature and do not involve
a regular and continuing interchange between these
plants. As to Respondent's unspecific claim that
Elkton and Lancaster employees share common
supervision, we note that Respondent offers no
proof regarding the extent or duration of this
supervision. Respondent's own explanation that
common supervision is necessitated "because of the
newness of the operation" seems to imply that
Respondent will cease utilizing common supervisory
personnel when the "newness of the operation"
wears off. If so, it is clear that such supervision,
being transitory in nature, is not a controlling factor
showing the inappropriateness of the Elkton unit for
the purposes of collective bargaining. Even
assuming, however, that such common supervision
'The only issue relating to the representation proceeding which
Respondent did not raise in the aforesaid requests for review is
Respondent's contention, now raised for the first time, that the Board's
Excelsior rule was invalidly promulgated We find no merit in this
assertion See N.L R B v. Wyman-Gordon, 394 U S 759 , decided April
23, 1969
will be a permanent feature at the Elkton plant, we
are of the opinion that this factor, when weighted
against other factors which support a single plant
unit finding, is not sufficient to warrant reversal of
our prior unit determination.
All material issues having been either decided by
the Board, admitted in the answer to the complaint,
or established by the uncontested letters attached to
the General Counsel's Motion for Summary
Judgment, there are no factual issues requiring a
hearing before a Trial Examiner. Accordingly, the
General Counsel's Motion for Summary Judgment
is granted. On the basis of the record before it, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Trojan Boat Company, is engaged at
Elkton, Maryland, in the manufacture and sale of
pleasure boats. During the preceding 12-month
period, Respondent sold and shipped products
valued in excess of $50,000 directly from its Elkton
plant to points outside the state of Maryland.
Respondent admits and we find that Respondent
is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Industrial Union of Marine and Shipbuilding
Workers of America, 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
1. The unit
At all times material herein, the following
employees have constituted and now constitute a
unit appropriate for purposes of collective
bargaining within the meaning of the Act.
All production and maintenance employees,
including inspectors and janitors, employed by
Respondent at its Elkton, Maryland, plant,
excluding office clerical employees, guards and
supervisors as defined in the Act.
2. The certification
On August 2, 1968, a majority of the employees
in said unit, voting in a secret ballot election
conducted under the supervision of the Regional
Director for Region 5 of the National Labor
Relations Board, designated the Union as their
representative for the purposes of collective
TROJAN BOAT COMPANY
bargaining with Respondent, and on August 28,
1968, the Regional Director for Region 5 certified
the Union as the exclusive collective-bargaining
representative of all the employees in said unit, and
the Union continues to be such representative.
B. The Request To Bargain and Respondent's
Refusal
On or about September 17, 1968 , the Union
requested and continues to request that Respondent
bargain collectively with it as the exclusive
collective-bargaining representative of all the
employees in the above -described unit . Commencing
on or about September 25, 1968 , Respondent
refused , and continues to refuse , to bargain
collectively with the Union as exclusive bargaining
representative of the employees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of the employees of Respondent in the appropriate
unit described above ; that the Union at all times
since August 28, 1968 , has been and now is the
exclusive bargaining representative of all the
employees in the aforesaid unit , within the meaning
of Section 9(a) of the Act; and that Respondent has
since September 25, 1968 , refused to bargain
collectively with the Union as the exclusive
bargaining representative of its employees in the
appropriate unit . By such refusal , Respondent has
engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8 (a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of Respondent set forth in section III,
above, occurring in connection with the operations
as described in section I, above, have a close,
intimate, and substantial relation to trade , traffic,
and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit , and, if an understanding is reached , embody
such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of
their elected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date Respondent
commences to bargain in good faith with the Union
937
as the recognized bargaining representative in the
appropriate unit . See Mar-Jac Poultry Company,
Inc. 136 NLRB 785; Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d
600 (C.A. 5), cert. denied 379 U.S. 817; Burnett
Construction Company, 149 NLRB 1419, 1421,
enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the
Act.
2. Industrial Union of Marine and Shipbuilding
Workers of America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees,
including inspectors and janitors , employed by
Respondent at its Elkton , Maryland , plant,
excluding office clerical employees, 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.
4. Since August 28, 1968 , the above -named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about September 25, 1968,
and at all times thereafter , to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the
employees of Respondent in the aforesaid
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the
meaning of Section 8 (a)(5) of the Act.
6. By the aforesaid refusal to bargain , Respondent
has interfered with , restrained , and coerced, and is
interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Trojan Boat Company, Elkton, Maryland, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay , wages, hours, and other terms and
conditions of employment with Industrial Union of
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marine and Shipbuilding Workers of America,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees,
including inspectors and janitors, employed at its
Elkton, Maryland, plant, excluding office clerical
employees, guards, and supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Elkton, Maryland, place of
business, copies of the attached notice marked
"Appendix." Copies of said notice, on forms
provided by the Regional Director for Region 5,
shall, after being duly signed by Respondent's
representative, be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notice is not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director for Region 5, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order ' the words "a Decree of the United States Court of Appeals
Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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
Industrial Union of Marine and Shipbuilding Workers
of America , AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union as the exclusive representative of
all of our employees in the bargaining unit described
below with respect to rates of pay, wages, hours, and
other terms and conditions of employment , and if an
understanding is reached , embody such understanding
in a signed agreement.
The bargaining unit is:
All production and maintenance employees , including
inspectors and janitors, employed at our Elkton,
Maryland, plant, excluding office clerical employees,
guards, and supervisors as defined in the Act.
TROJAN BOAT 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, 1019 Federal
Building, Charles Center, Baltimore, Maryland 21202,
Telephone 301-962-2822.