Presto Manufacturing Co.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Presto Manufacturing Company and International Brotherhood of Electrical Workers, AFL-CIO-CLC. Case 15-CA-3211 June 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On April 3, 1968 , Trial Examiner Marion C. Lad- wig issued his Amended Decision in the above-enti- tled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Amended Decision . Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Amended Decision. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner's Amended Decision , the excep- tions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner.' Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent , Presto Manufacturing Company, Jackson , Mississippi , its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner 's Recommended Order. ' In ists exceptions the Charging Party requests that certain further remedial provisions be added to those recommended by the Trial Ex- aminer As we do not find that such additional provisions are required or appropriate at this time to remedy the unfair labor practices found in this proceeding, the Charging Party 's request is hereby denied TRIAL EXAMINER'S AMENDED DECISION' STATEMENT OF THE CASE MARION C . LADWIG , Trial Examiner: Upon a charge filed on November 22, 1967, By Interna- ' In its exceptions the Charing Party requests that certain further sion, dated March 27, 1968, which was issued before the Respondent's Response to Order to Show Cause on Motion of General Counsel for Sum- mary Judgment on the Pleadings was brought to the Trial Examiner 's atten- 172 NLRB No. 30 tional Brotherhood of Electrical Workers, AFL-CIO-CLC, herein called the Union, the General Counsel for the National Labor Relations Board , by the Regional Director for Region 15, is- sued a complaint on January 29 and an amendment on February 15, 1968, against Presto Manufactur- ing Company , herein called the Respondent, alleg- ing that the Respondent had engaged in and was engaging in unfair labor practices within the mean- ing 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 amendment, and notice and postponement of hear- ing were duly served upon the Respondent. The complaint and amendment allege that the Union was duly certified on November 9, 1967, by the Regional Director for Region 15 (in the representation proceeding , Case 15-RC-3670, of which I take official notice ) as the exclusive bar- gaining representative of the Respondent's em- ployees in the unit therein found appropriate; and that since on or about November 16, 1967, and at all times thereafter , the Respondent has refused and is refusing to recognize and/or bargain with the Union as such exclusive bargaining representative, although the Union has requested and is requesting it to do so. The Respondent filed its answer on February 12 and its answer to the amendment of the complaint on February 28, 1968 , admitting that the election was held, that the certification was issued , that the Union made the requests for bargaining , and that the Respondent on and since November 16, 1967, has declined to bargain because of the asserted in- validity of the certification . As affirmative defenses, the Respondent restates numerous contentions previously made in the representation proceeding, and asserts that because of these reasons and "by reason of the conduct and circumstances alleged" in its objections filed in that proceeding , the certifi- cation "is violative of Respondent 's legal and con- stitutional rights, is void, and Respondent is under no obligation to honor it." On March 1, 1968, the General Counsel filed a Motion for Summary Judgment, contending that the Respondent was attempting to relitigate issues raised and determined by the Board in the prior representation case, and that such issues cannot be relitigated in a subsequent unfair labor practice proceeding absent newly discovered or previously unavailable evidence. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 158 , 161-162. The General Counsel noted that the Respondent in its answers does not contend that there is newly discovered evidence or evidence unavailable at the time of the representation proceeding. On March 5 there was issued an Order to Show tion The Amended Decision is being issued pursuant to the Board's re- mand order, dated April I. 1968, after due consideration of the Respon- dent's response. PRESTO MFG. COMPANY 197 Cause on or before March 20, 1968, why the Mo- tion for Summary Judgment should not be granted. The Union filed a response and brief in support of, and the Respondent filed a response in opposition to, the General Counsel 's Motion for Summary Judgment. In its response, the Respondent contends that it "was denied the right to fully develop the facts with regard to its Objections to the Election ." However, it is established Board policy , in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Ex- aminer in a complaint case of issues which were or could have been liti*ated in a prior related representation proceeding . Pittsburgh Plate Glass Co. v. N.L.R.B., supra; N.L.R.B. v. Macomb Pottery Company, 376 F.2d 450, 452 (C .A. 7); Rules and Regulations, National Labor Relations Board, Se- ries 8 , as revised January 1, 1965, Sec . 102.67(f). The Respondent neither alleges any such evidence, nor any special circumstances which require a reex- amination of the Board 's determinations in the representation proceeding . There being no litigable issues before me, I find no merit to the Respon- dent's contentions that a summary judgment cannot be granted, and that the Respondent is entitled to a hearing. Harry T. Campbell Sons' Corporation, 164 NLRB 247, fn. 9. Accordingly , I shall rule on the General Coun- sel's Motion for Summary Judgment , and upon the entire record in this case make the following: FINDINGS I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED The Respondent, a Mississippi corporation, is en- gaged in the manufacture of electrical household appliances at Jackson, Mississippi, where it an- nually receives raw materials and supplies valued in excess of $50,000 directly from outside the State. The Company admits, and I find , that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent admits, and I find, that International Brotherhood of Electrical Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES In the representation proceeding, the following uhit was found to be appropriate for bargaining: All production and maintenance employees at the Employer's Jackson , Mississippi, plant, in- cluding the shipping and receiving depart- ments; excluding all plant clerical employees, office clerical employees, temporary em- ployees, professional employees, guards and supervisors as defined in the Act. Although the Respondent's answer denies that this is an appropriate unit , the Respondent did not request the Board in the representation proceeding to review and/or set aside the composition and/or appropriateness of the unit as found and deter- mined by the Regional Director. Section 102.67 (f) of the Board's Rules and Regulations provides that failure to request review shall preclude relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. On November 15, 1967 (following the November 9, 1967, certification), and repeatedly thereafter, the Union requested the Respondent to bargain col- lectively with the Union as exclusive representative of the employees in the unit described above. On November 16 the Respondent declined , asserting its opinion that the certification is invalid, and stat- ing that "it is not appropriate to meet with you until all legal remedies have been exhausted with regard to the election." On November 28 the Respondent filed a Request for Review of Regional Director's Supplemental Decision and Certification of Representative, which the Board denied on January 2, 1968, "as it raises no substantial issues warrant- ing review." On January 9, the Respondent filed a motion for reconsideration, which the Board denied on January 23 "as it raises nothing not previously considered by the Board." On January 29, the Respondent advised the Union that it would con- tinue to seek reversal of the Regional Director's decision overruling Respondent's objections to the election "through Board's processes which are available." It is clear that the Respondent's refusal to bar- gain and its attack upon the validity of the certifica- tion are based upon matters which were con- sidered, or which could have been raised, in the representation proceeding. There being no conten- tion that the Respondent has any newly discovered evidence or evidence unavailable at the time of the representation proceeding, I grant the General Counsel's Motion for Summary Judgment. Accordingly, I find that the Union was duly cer- tified as the collective-bargaining representative of the employees of the Respondent in an appropriate unit, and that the Union at all times since November 16, 1967, has been and now is the exclu- sive bargaining representative of all the employees in the unit, within the meaning of Section 9(a) of the Act. I further find that the Respondent has, since November 16, 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, 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. CONCLUSIONS OF LAW By refusing on and after November 16, 1967, to bargain collectively with the Union as the exclusive bargaining representative of all employees in an ap- 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propriate unit, the Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and ( I) and Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has com- mitted certain unfair labor practices, I shall recom- mend that it be ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take affir- mative action , which I find necessary to remedy and to remove the effect of the unfair labor prac- tices and to effectuate the policies of the Act. Accordingly, on the basis of the foregoing findings and conclusions , and on the entire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: posted . Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' ' In the event that this Recommended Order is adopted by the Board, the words "This Notice is Posted by Order" shall be substituted for the words " Pursuant to the Recommended Order of a Trial Examiner " in the Notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , there shall be added to the words "This Notice is Posted By Order of the National Labor Relations Board" the words " as Enforced by the United States Court of Appeals." ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " ORDER Respondent, Presto Manufacturing Company, 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 employment, with International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees at the Employer 's Jackson, Mississippi, plant, in- cluding the shipping and receiving depart- ments; excluding all plant clerical employees, office clerical employees, temporary em- ployees, professional employees , guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights under Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named Union as the exclusive representative of all em- ployees in the above-described appropriate unit, with respect to wages , hours, and other terms and conditions of employment , and embody in a signed agreement any understanding reached. (b) Post at its plant in Jackson , Mississippi, co- pies of the attached notice marked "Appendix. "2 Copies of said notice, on forms provided by the Re- gional Director for Region 15, 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 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board WE WILL BARGAIN upon request with Interna- tional Brotherhood of Electrical Workers, AFL-CIO-CLC, and sign any agreement reached, covering: All production and maintenance employees at our Jackson , Mississippi , plant, including the shipping and receiving departments ; excluding all plant clerical employees , office clerical em- ployees, temporary employees , professional employees, guards and supervisors as defined in the Act. WE WILL NOT unlawfully interfere with our employees ' union activities. PRESTO MANUFACTURING 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 you have any question concerning this notice or compliance with its provisions , they may com- municate directly with the Board 's Regional Office, T6024 Federal ' Building (Loyola), 701 Loyola Ave., New Orleans, Louisiana 70113, Telephone 504-527-6391.