Servco Automatic Machine Products Co.

SERVCO AUTOMATIC Servco Automatic Machine Products Co. and Inter- national Union , Allied Industrial Workers of America , AFL-CIO. Case 7-CA-7699 June 9, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS Upon a charge filed by International Union, Al- lied Industrial Workers of America, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Re- gional Director for Region 7, issued a complaint dated January 19, 1970, against Servco Automatic Machine Products Co., herein called Respondent, alleging that the 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 and of the complaint and notice of hearing were duly served on the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges, in substance, that on October 23, 1969, the Regional Director for Region 7 certified the Union as the collective-bargaining agent of the Respondent's employees in the unit found ap- propriate,' which action was subsequently con- firmed by the Board, and that since on or about January 5, 1970, the Respondent has refused and continues to refuse to engage in collective bargain- ing with the representative of its employees, although the Union has requested and is requesting it to do so. On January 22, 1970, the Respondent filed its answer, denying the commission of the un- fair labor practices alleged and raising the following affirmative defenses: 1. That the decision of the Regional Director is- sued in its supplemental decision and certification of representatives was in abuse of discretion not ac- cording to the law and contrary to the facts. 2. That the Respondent realleges those objec- tions that it raised with respect to the election of September 17, 1969, as contained in the attached "Post Election Objections to Conduct Affecting Election of September 17, 1969," attached hereto and incorporated by reference. On February 2, 1970, the General Counsel filed a motion to transfer case to and continue proceeding before the Board and for judgment on the pleadings, submitting, in effect, that no issues have been raised by the Respondent in its answer that have not or could not have previously been litigated ' Supplemental Decision and Certification of Representatives issued Oc- tober 23, 1969, in Case 7-RC-9539 (not published in NLRB volumes) 2 Although the Respondent was given until February 17, 1970, to show MACHINE PRODUCTS CO. 149 in the prior representation case (Case 7-RC-9539). The General Counsel further moved that the Board issue a decision against the Respondent containing findings of fact, conclusions of law, and a remedial order consistent with the conclusion that Section 8(a)(5) and (1) of the Act was violated. Thereafter, on February 5, 1970, the Board issued an order transferring the proceeding to the Board and a notice to show cause in writing, on or before February 17, 1970, why the General Counsel's mo- tion for judgment on the pleadings should not be granted.2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion 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 Judgment on the Pleadings The record establishes that on July 30, 1969, the Union filed a petition in Case 7-RC-9539, seeking to represent certain employees of Servco Auto- matic Machine Products Company, herein called the Respondent or the Employer, at its Inkster, Michigan, plant. Pursuant to a Decision and Direction of Election issued on August 21, 1969, by the Regional Director for Region 7, a secret ballot election was conducted among the employees at the Respond- ent's 2004 Beech Daly Road, Inkster, Michigan, plant on September 17, 1969, in which, of approxi- mately 68 eligible voters, 59 cast valid ballots, of which 34 were for the Union herein, 25 were against the Union, and 3 were challenged ballots. The challenged ballots were not sufficient in number to affect the results of the election. Thereafter, on September 19, 1969, the Respond- ent timely filed objections to conduct affecting the results of the election. After an administrative in- vestigation, the Regional Director, on October 23, 1969, issued a Supplemental Decision and Certifi- cation of Representative, in which he overruled the Employer's objections in their entirety, and issued a Certification of Representative to the Union herein as exclusive bargaining representative of the Em- ployer's employees. The Employer's request for review of the Regional Director's decision was de- nied by the Board on December 2, 1969. On December 3, 1969, and January 5, 1970, the Union addressed letters to the Respondent requesting negotiations for a contract, and certain cause, in writing, why the General Counsel's motion for judgment on the pleadings should not be granted, the Respondent did not reply 183 NLRB No. 21 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information concerning the names, hiring dates, wage rates, and classifications of all employees in the bargaining unit. In response to these requests the Respondent, by letter dated January 5, 1970, advised that it would not bargain with the Union because it intended to seek judicial review of the Board's Decision with respect to the Respondent's objections. On January 6, 1970, the Union filed the charge upon which these proceedings are predicated. We find no merit in the Respondent's reiteration of the objections which the Regional Director over- ruled in their entirety. Although, thereafter, the Board denied the Employer's request for review of the Regional Director's decision,' we have again ex- amined the Regional Director's Supplemental Deci- sion and Certification of Representative in Case 7-RC-9539 and made an independent review of the record and conclude that the Regional Director's findings were correct. It is well established that, in the absence of newly discovered or previously unavailable evidence, a respondent is not entitled to relitigate in 8(a)(5) proceeding issues which were or could have been raised in a re- lated representation proceeding. As all material issues have been previously de- cided by the Board, or stand admitted by the failure of the Respondent properly to controvert the aver- ments of the General Counsel's motion, there are no matters requiring a hearing before a Trial Ex- aminer. Accordingly, the General Counsel's motion for judgment on the pleadings is granted. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is, and has been at all times material herein, a corporation duly organized and existing under the laws of the State of Michigan, where it maintains its only office and place of busi- ness at 2004 Beech Daly Road in the city of Inkster, and is engaged in the manufacture, sale, and distribution of automobile parts, farm imple- ments, and related products. During the fiscal year ending July 31, 1969, in the course and conduct of its business operations, the Respondent purchased and caused to be delivered to its Inkster plant materials valued in excess of $800,000 of which goods and materials valued in excess of $500,000 a In the Regional Director's Supplemental Decision and Certification of Representative, Case 7-RC-9539, the Regional Director overruled the Employer's Objections I through 10, and certified the Union The Em- were delivered to its plant directly from points located outside the State of Michigan. During the same period, it manufactured, sold, and distributed at its Inkster plant products valued in excess of $1 million, of which products valued in excess of $800,000 were shipped from said plant directly to points located outside of the State of Michigan. We find, on the basis of the foregoing, that the 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, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, Allied Industrial 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 material times herein, the following em- ployees of the Respondent have constituted a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees at the Respondent's 2004 Beech Daly Road, Inkster, Michigan, plant including shipping and receiving employees, but excluding all office clerical employees, professional employees and guards and supervisors as defined in the Act. 2. The certification On September 17, 1969, a majority of the em- ployees of the Respondent in said unit, in a secret election conducted under the supervision of the Re- gional Director for Region 7, designated the Union as their representative for the purposes of collective bargaining with the Respondent. On October 23, 1969, the Regional Director for Region 7 certified the Union as the collective-bargaining representa- tive of the employees in said unit. The Board de- nied the Respondent's request for review of the cer- tification, and the Union continues to be such representative. ployer's request for review was denied by the Board on the ground that it raised no substantial issues warranting review SERVCO AUTOMATIC B. The Request To Bargain and the Respondent's Refusal Commencing on December 3, 1969, and continu- ing to date , the Union has requested and is requesting the Respondent to bargain collectively with it as the exclusive collective -bargaining representative of all the employees in the above- described unit . Since January 5 , 1970, and continu- - ing to date , the Respondent has refused , and con- tinues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in said unit. Accordingly , we find that the Union has been at all times since October 23, 1969, and now is the ex- clusive bargaining representative of all the em- ployees in the above-described unit, within the meaning of Section 9 ( a) of the Act . We further find that the Respondent has, since January 5, 1970, refused to bargain collectively with the Union as the exclusive bargaining representative of its em- ployees in the appropriate unit , and that , by such refusal, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of-Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with its operations described in section I, above, have a close , intimate , 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 the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 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 MACHINE PRODUCTS CO. 151 by law, we shall construe the initial period of cer- tification as beginning on the date Respondent commences to bargain in good faith with the Union 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. Servco Automatic Machine Products Co., Inkster, Michigan , is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, Allied Industrial 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 employed by the Respondent at its Inkster, Michigan , plant including shipping and receiving employees , but excluding all office clerical em- ployees, professional employees and guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 23, 1969, 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 January 5, 1970, 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 the Respondent in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By the aforementioned refusal to bargain, the 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 aforementioned unfair labor practices are unfair practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- dent, Servco Automatic Machine Products Co., Inkster, Michigan , its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages , hours and other terms and conditions of em- ployment, with International Union , Allied Industri- al Workers of America , AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Inkster, Michigan , plant including shipping and receiv- ing employees , but excluding all office clerical employees , professional employees and guards and supervisors as defined in the Act. (b) In any like or related manner interfering with , restraining , or coercing employees in the rights guaranteed 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 understandig is reached , embody said un- derstanding in a signed agreement. (b) Post at its principal office at Inkster, Michigan , copies of the attached notice marked "Appendix ."4 Copies of said notice , on forms pro- vided by the Regional Director for Region 7, 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 the Respondent to insure that said notices are not altered , defaced , or covered by any other material. (c) Notify the Regional Director for Region 7, in writing , within 10 days from the date of this Order, what steps have been taken to comply herewith. 4 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 " 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 with International Union , Allied Industrial Workers of America , AFL-CIO, as the exclu- sive representative of the employees in the bar- gaining unit described below. 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 repre- sentative of all employees in the bargaining unit described below , 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. The bargaining unit is: All production and maintenance em- ployees employed by the Employer at its Inkster, Michigan , plant including shipping and receiving employees , but excluding all office clerical employees , professional em- ployees and guards and supervisors as defined in the Act. SERVCO AUTOMATIC MACHINE PRODUCTS CO. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.