Chelsea Clock Co.

National Labor Relations Board - Board Decisions

Mar 7, 1968

170 N.L.R.B. 69 (N.L.R.B. 1968)

CHELSEA CLOCK COMPANY 69
Chelsea Clock Company and District #38, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Case 1-CA-6104
March 7, 1968
DECISION AND ORDER
BY MEMBERS BROWN, ZAGORIA, AND JENKINS
Upon a charge filed by District #38, Interna-
tional Association of Machinists and Aerospace
Workers, AFL.-CIO, hereinafter called the Union,
the General Counsel of the National Labor Rela-
tions Board, by the Acting Regional Director for
Region 1, issued a complaint dated October 31,
1967, alleging that Chelsea Clock Company,
hereinafter called Respondent, had engaged in and
was engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before a
Trial Examiner were duly served on Respondent.
With respect to the unfair labor practices, the
complaint alleges , in substance, that on or about
October 3, 1967,, the Union was duly certified by
the Board' as the exclusive bargaining representa-
tive of Respondent's employees in a unit found ap-
propriate, that since on or about October 6, 1967,
the Union has requested and is requesting Respon-
dent to bargain collectively with respect to said
unit, and that, since on or about October 6, 1967,
Respondent has refused and is refusing to recognize
or bargain with the Union as such exclusive bar-
-gaining representative. On November 9, 1967,
Respondent filed its answer denying that a majority
of its employees designated the Union as their
representative and that the Union is, or has been
from the date of its certification, the appropriate
unit representative of Respondent's employees,
although admitting that the Union obtained an
"arithmetical" majority of the votes cast in the
Board-conducted election held on August 31, 1966,
and was thereafter certified. Respondent also ad-
mits the Union's October 6, 1967, request to bar-
gain and that, since on or about October 6, 1967,
Respondent has refused to do so. As affirmative
defenses, Respondent alleges that the election was
invalid and the ensuing certification arbitrary and
capricious, in that the procedure underlying the
certification deprived Respondent of due process of
law.
On November 28, 1967, the General Counsel
filed with the Acting Regional Director for Region
I a motion for summary judgment wherein he
requested the Board to find, in effect, that the Re-
gional Director has conclusively determined that
the Union has been duly designated and properly
certified as bargaining representative of the em-
ployees involved, and, in view of the admissions
contained in respondent's answer, that the allega-
tions of the complaint be found to be true and a
decision and order be issued without a hearing on
the basis of the pleadings. On this same date, the
Acting Regional Director referred the motion to
the Board. On November 30, 1967, the Board is-
sued an order transferring proceeding to the Board
and notice to show cause on or before December
15, 1967, why the General Counsel's motion for
summary judgment should not be granted. On
December 8, 1967, Respondent filed an opposition
to General Counsel's motion for summary
judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY JUDGMENT
The record establishes that in Case 1-RC-9103
the Union and Respondent executed, and the Re-
gional Director approved, on August 4, 1966, an
agreement for consent election in a stipulated ap-
propriate unit. Under the terms of that agreement,
the Regional Director's rulings on objections are to
be "final and binding."2 On August 31, 1966, an
election was conducted among the employees in
the unit. The results of the election, in which 51
eligible voters cast ballots, established that 21 bal-
lots were cast for, and 17 against, the Union, and
that 4 ballots were challenged. On September 6,
1966, Kenneth Ultsch, Jr., one of the challenged
voters, filed 8(a)(1) and (3) charges against
Respondent3 alleging that he had been discharged
because of his activities on behalf of the Union. On
September 8, 1966, Respondent timely filed objec-
tions to conduct affecting the results of the election
alleging, in substance, that Ultsch was a supervisor
and that he campaigned on behalf of the Union and
otherwise interfered with the conduct of the elec-
' Supplemental report on objection and certification of representative in
Case I-RC-9103
2 Continental Nut Company, 164 NLRB 508 See National Labor Relations
Board Rules and Regulations , Series 8, as amended, Section 102.62(a).
' Case l-CA-5632
170 NLRB No. 21
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. On October 12, 1966, the Regional Director
issued a report on challenged ballots, revised tally
of ballots, and objections wherein he sustained the
challenges to three of the four challenged ballots,
but did not rule either on the challenge to Ultsch's
ballot, since it could not affect the results of the
election, or on the objections, since Ultsch's super-
visory status was also material to the charges in
Case I-CA-5632 in which a complaint had issued.
Accordingly, on October 21, 1966, the Acting Re-
gional Director issued an order consolidating Case
1-RC-9103 and Case 1-CA-632 for hearing be-
fore a Trial Examiner, and providing that upon is-
suance of the Trial Examiner's decision Case
1-RC-9103 would be severed from Case
1-CA-5632 and remanded to the Regional
Director for final determination.
On December 6, 1966, Respondent filed a mo-
tion to sever Case 1-RC-9103 from Case
1-CA-5632, alleging that the Regional Director
was without power or authority to consolidate the
cases, and that the consolidation was an improper
delegation of Case 1-RC-9103 to the Trial Ex-
aminer. The motion was referred to, and denied by,
the Trial Examiner at the opening of the hearing in
the consolidated case. On December 9, 1966, the
Board denied Respondent's request for special per-
mission to appeal the Trial Examiner's refusal to
sever the cases for purposes of hearing.
On May 24, 1967, the Trial Examiner issued his
decision in the consolidated case. He found, as to
Case 1-RC-9103, that there was no merit to the
Respondent's objections and recommended that
they be overruled in their entirety and that the Re-
gional Director certify the Union as the collective-
bargaining representative of the employees in the
stipulated unit. The Trial Examiner also severed
Case 1-RC-9103 from Case 1-CA-5632 and re-
manded Case 1-RC-9103 to the Regional Director
for further action in accordance with Section
102.62(a) of the Board's Rules and Regulations,
Series 8, as amended.
On June 28, ,1967, both parties filed exceptions,
together ' with supporting briefs, in Cases
1-RC-9103 and 1-CA-5632. In its exceptions,
Respondent contended, inter alia, that the con-
solidation of the cases as well as the subsequent
severance thereof by the Trial Examiner were im-
proper.' Subsequently, on September 28, 1967, the
Board issued a Decision and Order in the con-
solidated case in which it adopted the findings, con-
clusions, and recommendations of the Trial Ex-
aminer' Thereafter, on October 3, 1967, the Act-
' The Respondent also raised this argument on June 22 , 1967, when it filed
a "Statement of Position" with the Regional Director in Case 1-RC-9103
ing Regional Director issued a supplemental report
on objections and certification of representative in
which, after having considered the Trial Examiner's
Decision and the exceptions and briefs insofar as
they pertained to Case 1-RC-9103, he adopted the
findings, conclusions, and recommendations of the
Trial Examiner, overruled Respondent's objections
in their entirety, and certified the Union as the ex-
clusive representative of the employees in the ap-
propriate unit.
As indicated, Respondent's answer alleges as an
affirmative defense that the election was invalid
and the issuance of the certification an arbitrary
and capricious act because the procedure underly-
ing the certification deprived Respondent of due
process of law. Its opposition to the motion for
summary judgment further explicates its affirmative
defense by alleging that the Regional Director im-
properly consolidated the representation and unfair
labor practice cases, "thereby improperly
delegat(ing) resolution of material and factual is-
sues to the National Labor Relations Board in ex-
plicit contravention of the consent election agree-
ment . . . ." More specifically, Respondent con-
tends, basically, that it is entitled to a hearing in
order to adduce evidence unavailable at the time of
the hearing in the consolidated case to show that
(1) the Regional Director's ex parte investigation of
the challenges and objections in Case 1-RC-9103
led him to conclude that the election should be set
aside if, after a hearing confined to Ultsch's super-
visory status, the Regional Director determined that
Ultsch was, in fact, a supervisor, and ' (2) the Re-
gional Director never intended to submit to hearing
the issue of the impact of Ultsch's (union) activities
on the election but nevertheless adopted the Trial
Examiner's findings with respect thereto instead of
adopting his own independent conclusion, which
differed from that of the Trial Examiner, and
thereby acted in contravention of the terms of the
consent-election agreement. In short, Respondent
contends that due process of law entitles it to a
hearing for the purpose of adducing evidence bear-
ing on its affirmative defense that the Regional
Director erred procedurally by consolidating the
representation and unfair labor practice cases, and
substantively because he acted arbitrarily and
capriciously by substituting the Trial Examiner's
conclusions for his own and thereby invalidated his
decision and the finality of that decision, contrary
to the terms of the consent-election agreement. We
find no merit in these contentions.
5 167 NLRB 85
CHELSEA CLOCK COMPANY 71
As to Respondent's procedural defense, we per-
ceive nothing in the record to indicate that the Re-
gional Director, by consolidating the representation
and the unfair labor practice proceedings for pur-
poses of hearing in order to dispose of material is-
sues raised in both proceedings, either acted con-
trary to long-established procedure,' or intended to
remove from the scope of the hearing the basic
representation issue which Respondent raised and
sought to have resolved. The record clearly shows
that Ultsch's supervisory status was such an issue.
The Trial Examiner merely acted as the Regional
Director's hearing officer with respect to the
representation matter in the consolidated case.
Respondent's substantive argument is equally
without merit. We have long held that in consent-
election agreements of the type here involved,
nothing short of arbitrary7 or capricious action by
the Regional Director will invalidate his decision
which the parties have agreed to accept as final.'
An error in judgment will not affect the finality of
his determination,' only fraud, misconduct, or such
gross mistakes as to imply bad faith.10 In further
enunciation of these principles directed toward
limiting attempts to overturn determinations of the
present character, the Supreme Court stated in
United States v. Wunderlich, et al., 342 U.S. 98, that
Despite the fact that such other words as
"negligence," "incompetence," "capri-
ciousness" and "arbitrary" have been used in
the course of opinions, this Court has con-
sistently upheld the finality of the department
head's decision unless it was founded on fraud,
alleged and proved. So fraud is in essence the
exception. By fraud we mean conscious wrong-
doing, an, intention to cheat or be dishonest.
The decision of the department head, absent
fraudulent conduct, must stand under the plain
meaning of the contract. {Emphasis supplied. ]
Respondent has agreed to accept the Regional
Director's determination as final. It has not alleged
fraud. Nor has it alleged misconduct or bad faith.
Nor does it seek a hearing in order to prove any of
the foregoing. Beyond a vague and naked assertion,
Respondent has not presented a scintilla of
' N.L R B v Dixie Shirt Co, 176 F 2d 969 (C A 4), 0 E Szekely and As-
sociates, Inc, 1 17 NLRB 42. See National Labor Relations Board Rules
and Regulations, Serves 8, as amended, Section 102 33
' In the Trial Examiner's Decision in the consolidated case, the Trial Ex-
aminer, in discussing Ultsch's alleged activities on behalf of the Union, in-
advertently discredited, testimony of employee Alice Barry In fact, Barry
did not testify From the context, it is apparent that the Trial Examiner in-
tended to discredit the testimony of Walter Mutz that Barry had told him
that Ultsch had solicited her to attend the union meeting Similarly, the
Trial Examiner inadvertently noted that Ultsch attended two union
meetings when the record shows that he attended three In view of our
disposition of this case, we deem these errors to be of no significance
'Semi-Steel Casting Co., of St. Louis v N L R B, 160 F 2d 388 (C A 8),
cert, denied 322 U S 763
0 Merrimac Hat Corp., 85 NLRB 329,33 1.
evidence to support its position. At best, it is alleg-
ing merely that the Regional Director made a
preliminary statement which, at first blush, in-
dicated one course of action, and that, after review-
ing the results of a full hearing and after consider-
ing the positions of the parties as set forth in their
exceptions and briefs, a different course of action
was indicated. In reality, Respondent is claiming
that the Regional Director committed something
akin to an error in judgment. However, even assum-
ing, arguendo, an error in judgment on the Regional
Director's part, which we do not, Respondent is still
nevertheless bound by the Regional Director's deci-
sion which, by the terms of the consent-election
agreement, it had agreed to accept as final.11 We
cannot conclude, therefore, that, by adopting that
part of the Trial Examiner's Decision pertaining to
the representation case, the Regional Director
failed to exercise independent judgment.
Inasmuch as Respondent contends, in effect, that
the Regional Director erred in his findings and con-
clusions, Respondent's plea for a hearing in the in-
stant proceeding is unavailing since, as noted, it
agreed to be bound by the Regional Director's
findings and conclusions. We do not pass upon the
merits of his decision. In order for Respondent to
prevail here, it must allege, and prove, that the Re-
gional Director's determinations were arbitrary and
capricious.12 In this case, Respondent's allegations
and evidence in support thereof fall far short of
such proof. Accordingly, there are no issues of fact
or law which require a hearing.
All material issues thus having been decided by
the Board or admitted in the answer to the com-
plaint, there are no matters requiring a hearing be-
fore a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is
granted.13 On the basis of the record before it, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Massachusetts corporation with its
principal office and place of business located at
'0 McMullen Leavens Co, 83 NLRB 948, 955, General Armature & Manu-
facture Co , 89 NLRB 654, 659
ii Jas H Matthews & Co, 145 NLRB 1680, 1683
2 Jas H. Matthews & Co , supra
"Respondent's contentions that the Administrative Procedure Act, Sec-
tion 10(b) of the Labor Management Relations Act, as amended, and the
Board's own Rules and Regulations , in effect, guarantee an absolute right
to hearing is without merit In circumstances such as these, where no litiga-
ble issues have been properly raised , the Board may entertain and rule
upon a motion for summary judgment or judgment on the pleadings
Moreover, the Board has exercised these powers in numerous cases See
Montgomery Ward & Co , Incorporated, 165 NLRB 652; The Puritan Sport-
swear Corp, 162 NLRB 13, E-Z Davis Chevrolet, 161 NLRB 1380, Collins
& Aiknian Corp., 160 NLRB 1750.
72 DECISIONS OF NATIONAL
Chelsea, Massachusetts, is engaged in the manufac-
ture, sale, and distribution of clocks, timepieces,
barometers, and related products. In the course and
conduct of its business operations, Respondent an-
nually purchases raw materials valued in excess of
$50,000 which are shipped directly to its place of
business in Chelsea, Massachusetts, from suppliers
located outside the Commonwealth of Mas-
sachusetts. Respondent also annually ships products
valued in excess of $50,000 directly from its place
of business in Chelsea, Massachusetts, to points
located outside the Commonwealth of Mas-
sachusetts. Respondent admits, and we find, that at
all times material herein, it is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and we find, that the Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The Unit
The following employees of Respondent con-
stitute , and at all times material herein have con-
stituted, a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act: All
production and maintenance employees including
janitors and regular part-time employees of the Em-
ployer at its plant located at Chelsea, Mas-
sachusetts, but excluding office clerical employees,
plant clerical employees, homeworkers, profes-
sional employees, draftsmen, guards, assistant
foremen, and all supervisors as defined in the Act.
B. The Certification
On or about August 31, 1966, a majority of the
employees of Respondent voted in a secret election
conducted among the employees in said unit, under
the supervision of the Regional Director for Region
1, and designated the Union as their representative
for the purposes of collective bargaining with
Respondent. On October 3, 1967, the Acting Re-
gional Director for Region 1 certified the Union as
the collective-bargaining representative of the em-
ployees in said unit, and the Union continues to be
such representative.
LABOR RELATIONS BOARD
C. The Request To Bargain and the Respondent's
Refusal
Commencing on or about October 6, 1967, and
continuing to date, the Union has requested, and is
requesting, Respondent to bargain collectively with
it as the exclusive collective-bargaining representa-
tive of all the employees in the above-described
unit. Since on or about October 6, 1967, and con-
tinuing to date, Respondent did refuse, and con-
tinues to refuse, to bargaining collectively with the
Union as the exclusive collective-bargaining
representative of the employees in said unit.
Accordingly, we find that the Union was duly
certified by the Board as the collective -bargaining
representative of the employees of Respondent in
the appropriate unit described above in the Board's
certification, and that the Union at all times since
October 3, 1967, 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. We further find that Respondent
has, since October 6, 1967, refused to bargain col-
lectively with the Union as the exclusive bargaining
representative of its employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged 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 activities of Respondent set forth in section
III. above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship 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, bar-
gain 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.
CONCLUSIONS OF LAW
1. Chelsea Clock Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
CHELSEA CLOCK COMPANY 73
2. District #38, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees
including janitors and regular part-time employees
of Respondent at its plant located at Chelsea, Mas-
sachusetts, but excluding office clerical employees,
plant clerical employees, homeworkers, profes-
sional employees, draftsmen, guards, assistant
foremen, and all 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 October 3, 1967, the above-named
labor organization has been the exclusive represen-
tative 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 October 6, 1967, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and has thereby en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
ORDER
plant clerical employees, homeworkers, profes-
sional employees, draftsmen, guards, assistant
foremen, and all supervisors as defined in the Act.
(b) In any like or related manner, interfering
with, restraining, or coercing employees in the ex-
ercise of 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 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 Chelsea, Massachusetts, place of
business, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 1, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
14 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 Enforc-
ing an Order "
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Chelsea Clock Company, Chelsea, Mas-
sachusetts, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
wages , hours, and other terms and conditions of
employment , with District #38, International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees at its Chelsea, Massachusetts,
operation , in the following appropriate unit: All
production and maintenance employees including
janitors and regular part -time employees of the
Respondent at its plant located at Chelsea, Mas-
sachusetts, but excluding office clerical employees,
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 you that:
WE WILL NOT refuse to bargain collectively
with District #38, International Association of
Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining
representative of the employees in the follow-
ing appropriate unit:
All production and maintenance em-
ployees including janitors and regular
74 DECISIONS OF NATIONAL
part-time employees of the Employer at its
plant located at Chelsea, Massachusetts,
but excluding office clerical employees,
plant clerical employees, homeworkers,
professional employees, draftsmen,
guards, assistant foremen, and all super-
visors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees 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 represen-
tative of all employees in the above-described
bargaining unit with respect to wages, hours,
and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agree-
ment.
LABOR RELATIONS BOARD
CHELSEA CLOCK
COMPANY
(Employer)
Dated By
(Representative ) (Title)'
This notice must remain posted for 60 consecu-
tive 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, 20th Floor, John F. Kennedy Federal Build-
ing, Cambridge and New Sudbury Streets, Boston,
Massachusetts,-02203 Telephone 223-3300.