Van Dorn Plastic Machinery Co.

National Labor Relations Board - Board Decisions

Nov 12, 1980

253 N.L.R.B. 268 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van Dorn Plastic Machinery Co., Division of Van
Dorn Company and District Lodge 54 of the In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO and Thomas W.
Vale. Case 8-CA-11669, 8-CA-11842, 8-CA-
12243, and 8-CA-12205
November 12, 1980
ORDER REMANDING PROCEEDING TO
THE ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN FANNING AND Ml:MBIRS
JENKINS AND PENILI.O
On March 31, 1980, Administrative Law Judge
Robert G. Romano issued his Decision in this pro-
ceeding. Thereafter, the General Counsel, the
Charging Party, and Respondent filed exceptions
and supporting briefs, and Respondent filed a brief
in opposition to the General Counsel's exceptions.
For the reasons explained below, the Board has de-
cided to remand this proceeding to the Administra-
tive Law Judge for a further hearing and for a sup-
plemental decision.
The amended consolidated complaint in this pro-
ceeding alleged, inter alia, that since February 22,
1978, Respondent had refused to meet and bargain
with the Union as the certified bargaining repre-
sentative of certain of Respondent's employees in
an appropriate unit and that this refusal to meet
and bargain violated Section 8(a)(5) and (1) of the
Act. However, since he found that the Union was
not entitled to certification based upon the related
representation proceeding, the Administrative
Law Judge concluded that Respondent's refusal to
bargain was not a violation of Section 8(a)(5) and
(1) of the Act.
In reaching this conclusion, the Administrative
Law Judge noted the following facts from the rep-
resentation proceeding in Case 8-RC-10830. In its
Objection 8, Respondent alleged that, on the day
of the election, which the Union won, the Union
had distributed a flyer
. . containing what purported to be a copy
of one of the Union's contracts, containing
provisions for wage rates for various job clas-
sifications, pension and premium pay.... In
fact, such "contract" was a forgery in that
there are no fixed wage rates contained in the
actual contract, and there are no provisions for
set-up, leadman, or instructional premiums.
The Regional Director applied the then-prevailing
law of Shopping Kart Food Markei, Inc.,2 and found
that, because the flyer did not involve a forgery or
Case 8 RC 10183
228 NLRH 1311 (1977)
253 NLRB No. 29
an improper involvement of the Board and its
processes, it was not objectionable. On January 17,
1978, following exceptions by Respondent, the
Board (by a panel of Chairman Fanning, Member
Jenkins, and then Member Walther) adopted the
Regional Director's recommendations, which re-
sulted in a certification being issued to the Union."
Thereafter, Respondent refused to bargain with
the Union as the certified bargaining representative
of certain of its employees. This refusal along with
other of Respondent's actions was alleged to be an
unfair labor practice in the amended consolidated
complaint in this proceeding. A hearing on this
complaint was held on dates in October and De-
cember 1978. At the hearing in the instant proceed-
ing, Respondent attempted to relitigate the issue of
the leaflet, but, upon objection, the Administrative
Law Judge ruled that Respondent was precluded
from raising in this unfair labor practice proceeding
issues which were raised and disposed of in the
representation proceeding in Case 8-RC-10830.
Accordingly, no additional evidence involving the
leaflet was introduced.
Thereafter, on the last day of the hearing and
without the parties' knowledge, the Board issued
its Decision in General Knit of California. Inc.,4
overruling Shopping Kart, and returning to the
standard of review for alleged misrepresentations
set out in Hollywood Ceramics Company, Inc. That
standard indicated, inter alia, that a misrepresenta-
tion which may reasonably be expected to have a
significant impact on the election will cause it to be
set aside. The Administrative Law Judge analyzed
what effect the Board's reversal of Shopping Kart,
supra, in General Knit. supra, had on the unfair
labor practices alleged in this proceeding. He de-
termined, and we agree, that General Knit is con-
trolling.
The Administrative Law Judge then analyzed
Objection 8 under the criteria of General Knit,
supra, but he did so based only on the formal
papers submitted in the representation proceeding.
As set out in his Decision, these papers include the
formal objection itself, with exhibits attached; the
:' With regard Io the campaign flyer Chairmna Fanning and Nlcmhcr
Jenkins slated t fr 2 f the January 1 7 )ecision
C(lairilll i:anllilng and Mribecr Jenkin aree ' ith the Regional i-
rcclir Ihat hll \' vie d im light of Ihe Board's recent dci in ill
.Shopprin Kurt i-,odi t1rAert Inc.. 228 NI.-Ri 1311 (1977), the alleged
tlilsrepresentatiIn% do ilot warranl t etting aside the clectiltn Al-
though £Chairman Fanninig and Memnber Jenkins dissented i Shopping
Kurt, lprt, alld cntnu t suhscribe tio the views stated in their dl -
critli i opinion, the) IlSc, rthielcs rcng[i/e thal the majorily opill-
iln in Itihal cas represents currenlt Bard poli i and will· tlherefcorc
apply that policy ill this protceeding
21) NI RI1 hM (19 78) Menbehcrs I'enellil and Murph di.ssenting sep-
anrtel)
14(0 NI.R 221 (4621
26
VAN DO()RN PIASIIC MACHINE'RY C.()
Regional Director's comments in his report on the
objection; Respondent's exceptions to the Regional
Director's report; and the Board's Decision adopt-
ing the report. 6 From this material, the Administra-
tive Law' Judge concluded that there were material
misrepresentations in the flyer, involving wage
rates, which warranted the setting aside of the elec-
tion under General Knit. He accordingly dismissed
the allegation of the complaint alleging an 8(a)(5)
violation.
Both the General Counsel and the Charging
Party have excepted to this portion of the Adminis-
trative Law Judge's Decision and they urge that
the issue be remanded for a full hearing.7 They
argue that the Administrative Law Judge was in
error in relying solely on the papers in the repre-
sentation proceeding in analyzing the objection.
They note that, notwithstanding the Regional Di-
rector's comments on the alleged misrepresenta-
tions in the flyer, he resolved the case based on the
application of Shopping Kart.
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 au-
thority in this proceeding to a three-member panel.
The Board, having duly considered the matter, is
of the opinion that there exist material issues of fact
and law concerning Objection 8 which warrant a
remand of this proceeding to the Administrative
Law Judge for the purposes of conducting a fur-
ther hearing on that objection under General Knit.
supra. The Board is not satisfied that the represen-
tation proceeding in Case 8-RC-10830, which was
conducted entirely under the standard set out in
the now-overruled Shopping Kart Decision, was
sufficient to resolve the objection."
Accordingly, it is hereby ordered that this pro-
ceeding be remanded to Administrative Law Judge
Robert G. Romano for the purpose of conducting a
further hearing with regard to Respondent's Objec-
tion 8 in Case 8-RC-10830 in light of the Board's
Decision in General Knit of California, Inc., 239
NLRB 619. At the hearing, all parties shall be al-
lowed to adduce whatever evidence they deem
pertinent on that objection.
+ There as nI heartig n any of the objections in the representationl
proceeding
' As ;mn alternalise argumenlt, the Union claints ino hearing is ncessar
lo find n its f'aor
' Il this regard, the Board does not find it significant that the lUnio
did not except to certain (of the Regional Director's commenlts As the
then-prcsailing lau of Shtoppiyg Kurt did not call fr such colmmenlt. the
Regional Director's observlations there were in the nature (if dicta And,
given the las unlder Shopping Karr. the Board finds the t-il vil a, llo t
duty hound to respond to there conlmenrnts hich ere nolt in ctnCial
clement of the Reg ionl; Directir's report
It is further ordered that, upon the conclusion of
the hearing, the Administrative Law Judge shall
prepare and serve on the parties a Supplemental
Decision containing findings of fact, conclusions of
law, and recommendations based on the evidence
received at the reopened hearing and that, follow-
ing service of such Supplemental Decision on the
parties, the provisions of Section 102.46 of the Na-
tional Labor Relations Board Rules and Regula-
tions, Series 8, as amended, shall be applicable "'
MlIMN1tR PIeNII 10, dissenting:
Once again, the General Knit n majority upsets a
certification validly issued under Shopping Kart.
Once again, the employees' desires as expressed at
the ballot box are frustrated. Once again, I must
dissent.
The facts tell the all too familiar story of delay,
delay, delay. On April 22, 1977, the employees
voted for union representation in a secret-ballot
election. From that time to the present day, the
parties have been locked in litigation over the
status of the bargaining agent and related issues,
and the employees have been deprived of the serv-
ices of their duly elected representative. My col-
leagues' decision serves only to exacerbate the
problem by remanding this seemingly endless pro-
ceeding for yet further litigation concerning Re-
spondent's misrepresentation objection that was
properly overruled under Shopping Kart when the
Board certified the Union almost 3 years ago. I
find this result intolerable.
Even should the Union eventually prevail, the
eroding effects of time and employee turnover
would render the certification virtually worthless
in terms of effective collective bargaining.
I would direct Respondent to the bargaining
table now.
T he Board I aa:re that, in addition to the general refusal to meet
and hargalni ilegation of he conlplaiti, Respondent is alleged to hase
iol;aled Sec (a)(51 anid () of the Act in arious other respectl he
B lard is a; i, aare that Ihe A dilrnitrattle .as Judge recommendlcd
disrissal of these allegations baed ot hi, findilg no general dut 5 to bar-
gai on Respolndent't part liov eer. the Board is further cognizant that
Ihe Administrative la. Judge imade certain altcrnati re findings on lthet
8(a)(5) allegations: leC. assiUeilie a ahld certification (of the nion, the
AdnlinistralieC I:au Judge hcn pissed on ;lch (a)(5) iolitionlrl dl-ged
ltie found certain illaln, ailt] di mls ,ed others rhe prtles h ex
cepted to Ihohrse finding, which are ad cere to them as suxell as to certain
fitingr s on 80(;)(1) allegatins IFhe Bitard rcsere ruling it irl thece ad-
dtlinal allegatins, mait iof which lma hbe dependent n the alidl or
lack thereof of the certficalion i11 (ase 8 RC- -108I( When the Adnmirs-
Irat ll Iass Judge has ruled i hi, Supplemental )ecsiiil on the i sue
recnlllded, his recoimilded ()rder Aill reflect that Supplemental Dci:-
stin aind the Board xill then paiss tll an exceptions raised to that iSup
piemnial; I)DcisAon
(Znc ailr krit! ( o l-/,rtticu /tt , 21 NIRB 61 (l I97t81 A I tad
nmt (iner Ai dissent. I dherc io tie sound principles of Shppti
AorI 1,d itariet. Itn 228 Ni RH 1311 (197i
2th¢