Firestone Wire & Cable Co.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Firestone Wire & Cable Co., A Division of Firestone Tire & Rubber Company and International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW. Case 9-CA-14642 May 1, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on December 12, 1979, by International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, herein called the Union, and duly served on Firestone Wire & Cable Co., A Division of Firestone Tire & Rubber Company, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 9, issued a complaint on January 9, 1980, against Respondent, alleging that Respond- ent had engaged in and was engaging in unfair labor practices affecting commerce 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 7, 1979, following a Board election in Case 9-RC- 12796, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about November 27, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 21, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. Respondent admits re- ceipt of the charge filed by the Union on Decem- ber 12, 1979, and that it meets the Board's jurisdic- tional standards. Respondent admits the supervi- sory status of A. L. Sardone, plant manager. Re- spondent further admits that the following employ- Official notice is taken of the record in the representation proceed- ing. Case 9-RC-12796 as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems. Inc., 166 NLRB 938 (1967). end. 388 F.2d 683 (4th Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp 573 (D C.Va. 1967); Follett Corp.., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (7th Cir 1968); Sec 9(d) of the NLRA, as amended 249 NLRB No. 49 ees constitute an appropriate unit for collective bargaining: All production, maintenance and shipping and receiving employees employed by Employer at its Danville, Kentucky location, including store attendants in Department 714, tool and die-B employees in Department 841, job set- ters in Department 020, building services in Department 736, shipping and receiving lead- men in Department 791-901, the expediter- driver and temporary hourly fill-in supervisors; but excluding all office clerical employees, technical employees, including laboratory per- sonnel and PP & D employees, material con- trol analysts in Department 936, professional employees, guards, probationary hourly super- visors, permanent salaried supervisors and all other supervisors as defined in Section 2(11) of the Act. Respondent admits that on November 7, 1979, the Union was certified by the National Labor Rela- tions Board as the collective-bargaining representa- tive of the employees in the above-described unit, but denies that the certification was issued in ac- cordance with applicable law. Respondent alleges that the Board violated Section 9(c) of the Act by failing to set aside the results of the April 4 and 5, 1979, representation election and by failing and re- fusing to conduct a hearing into the Union's con- duct during the campaign. Respondent admits that the Union has requested and is requesting it to bar- gain collectively with the Union and that it has re- fused to do so, but denies the conclusory 8(a)(5) and (1) allegations. On February 11, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 20, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. The Union filed a response supporting the Motion for Sum- mary Judgment and Respondent thereafter also filed a response to the Notice To Show Cause and a motion to dismiss the complaint. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and its response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis that the Regional FIRESTONE WIRE CABLE CO. 219 Director failed to conduct a hearing on Respond- ent's objections to the conduct of the election. Review of the record herein reveals that in Case 9-RC-12796 the Union filed the petition on Febru- ary 6, 1979. The Regional Director approved the parties' Stipulation for Certification Upon Consent Election on March 19, 1979. The election took place on April 4 and 5, 1979, and the tally of bal- lots revealed that, of approximately 364 eligible voters, there were 183 ballots cast for, and 176 cast against, the Union. There were no challenged bal- lots. Respondent filed timely objections to the con- duct of the election on April 11, 1979, alleging that union adherents threatened employees who did not support the Union with physical harm to them- selves and their automobiles, that several auto- mobiles were actually damaged, and that, thereby, the "laboratory conditions" for a fair election were destroyed. In support of these objections, Respond- ent submitted signed statements from employees. The Regional Director conducted an investigation of the issues raised by the objections and on May 30, 1979, issued his report and recommendations overruling the objections. Respondent filed excep- tions to the Regional Director's report, contending that the issues raised by the objections can best be resolved by a hearing. On November 7, 1979, the Board issued its Decision that Respondent's excep- tions raised no material or substantial issues of fact or law warranting reversal or a hearing and certi- fied the Union. Following the Union's request, on November 9, 1979, that Respondent engage in collective-bargain- ing negotiations with the Union, Respondent, on November 27, 1979, and at all times thereafter, re- fused to bargain collectively with the Union. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. 2 See Pittsburgh Plate Glass Co. v. .L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f and 102.69(c) On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation engaged in the manufacture of bead wire and steel wire cord at its Danville, Kentucky, facility. In the course of its business operations at the Danville, Kentucky, location, Respondent annually sells and ships prod- ucts, goods, and materials valued in excess of $50,000 directly to points outside the Common- wealth of Kentucky. We find, on the basis of the foregoing, that Re- spondent 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. III. THIE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production, maintenance, and shipping and receiving employees employed by the Employ- er at its Danville, Kentucky location, including store attendants in Department 714, tool and die-B employees in Department 841, job set- ters in Department 020, building services in Department 736, shipping and receiving lead- men in Department 791-901, the expediter- driver and temporary hourly fill-in supervisors; but excluding all office clerical employees, technical employees, including laboratory per- sonnel and PP & D employees, material con- trol analysts in Department 936, professional employees, guards, probationary hourly super- visors, permanent salaried supervisors and all other supervisors as defined in Section 2(11) of the Act. 2. The certification On April 4 and 5, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- FIRESTONE WIRE & CABLE CO. 219 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballot election conducted under the supervision of the Regional Director for Region 9, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on Novem- ber 7, 1979, and the Union continues to be such ex- clusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 9, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 27, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 27, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Firestone Wire & Cable Co. , A Division of Firestone Tire & Rubber Company, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, and shipping and receiving employees employed by the Employer at its Danville, Kentucky location including store at- tendants in Department 714, tool and die-B em- ployees in Department 841, job setters in Depart- ment 020, building services in Department 736, shipping and receiving leadmen in Department 791-901, the expediter-driver and temporary hourly fill-in supervisors; but excluding all office clerical employees, technical employees, including labora- tory personnel and PP & D employees, material control analysts in Department 936, professional employees, guards, probationary hourly supervi- sors, permanent salaried supervisors and all other supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 7, 1979, 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 purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 27, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, FIRESTONE WIRE & CABLE CO. 221 and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 Re- lations Board hereby orders that the Respondent, Firestone Wire & Cable Co., A Division of Fire- stone Tire & Rubber Company, Danville, Ken- tucky, 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 International Union, United Automobile, Aerospace and Agri- cultural Implement Workers of America, UAW, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production, maintenance, and shipping and receiving employees employed by the Employ- er at its Danville, Kentucky location, including store attendants in Department 714, tool and die-B employees in Department 841, job set- ters in Department 020, building services in Department 736, shipping and receiving lead- men in Department 791-901, the expediter- driver and temporary hourly fill-in supervisors; but excluding all office clerical employees, technical employees, including laboratory per- sonnel and PP & D employees, material con- trol analysts in Department 936, professional employees, guards, probationary hourly super- visors, permanent salaried supervisors and all other supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in 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 under- standing in a signed agreement. (b) Post at its Danville, Kentucky, place of busi- ness copies of the attached notice marked "Appen- dix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. :' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu. ant to a Judgment of the Uniled States Court of Appeals Enforcing iln Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America, UAW, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production, maintenance, and shipping and receiving employees employed by the Employer at its Danville, Kentucky loca- tion, including store attendants in Depart- ment 714, tool and die-B employees in De- partment 841, job setters in Department 020, building services in Department 736, ship- ping and receiving leadmen in Department FIRESTONE WIRE & CABLE CO 221 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 791-901, the expediter-driver and temporary hourly fill-in supervisors; but excluding all office clerical employees, technical employ- ees, including laboratory personnel and PP & D employees, material control analysts in Department 936, professional employees, guards, probationary hourly supervisors, permanent salaried supervisors and all other supervisors as defined in Section 2(11) of the Act. FIRESTONE WIRE & CABLE Co., A DIVISION OF FIRESTONE TIRE & RUBBER COMPANY