Sperry Rubber & Plastic Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sperry Rubber & Plastics Co., Inc. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America. Case 25-CA- 9489 May 15, 1978 DECISION AND ORDER BY MI MBEiRS JE-NKINS. MU RPIY, AND TRUESDALE Upon a charge filed on December 8, 1977, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, herein called the Union, and duly served on Sperry Rubber & Plastics Co., Inc., herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 25. issued a complaint on December 15, 1977 against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on November 30, 1977, following a Board-conducted rerun election held on August 18. 1977, in Case 25 RC-6477, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate:t and that, commenc- ing on or about December 1, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. Thereafter, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On January 9, 1978, counsel for the General Coun- sel filed directly with the Board a motion to strike portions of Respondent's answer and a Motion for Summary Judgment with exhibits attached. Subse- quently, on January 20, 1978, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's 'Official notice is taken of the record in the representation proceeding, Case 25 R( 6477. as the term "record" is defined in Secs. 102.68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended. See l.TV EI ciro. vstems, In,. 166 NI.RB 938 (1967), enfd. 388 F.2d 683 (('A. 4. 1968): (;,ildn Age Beveraig' (Coi 167 NLRB 151 (1967). enfd. 415 F.2d 26 (CA. 5. 1969). Interrlpe ('o s Penello, 269 F.Supp. 573 (D( Va., 1967): stecitt ( orp., 164 NI.RB 378X 1967}. enfd 397 F.2d 91 (C A 7. 1968X): Sec 9(d) of the NL.RA, as amended. Motion for Summary Judgment should not be grant- ed. Respondent thereafter filed a response to the No- tice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional l.abor 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 response to the Notice To Show Cause, Respondent admits the re- quest and refusal to bargain but in substance attacks the validity of the Union's certification on the basis that the Board erroneously set aside the original elec- tion and directed a second election in the underlying representation proceeding. Review of the record herein, including the record in Case 25 RC-6477, reveals that an election con- ducted pursuant to a Stipulation for Certification Upon Consent Election on December 22, 1976, re- sulted in a vote of 169 for, and 179 against, the Union, with 2 ballots challenged. Petitioner (the Union herein) filed timely objections to conduct af- fecting the results of the election, alleging, inter alia, in its Objection 2 that the Employer (Respondent herein) posted throughout its facility bulletins which gave the employees the impression that the National Labor Relations Board was partial to it. After investigation, the Regional Director issued a Report on Objections to Conduct Affecting Results of Election and Recommendations to the Board on March 11, 1977, in which he recommended that the election held December 22, 1976, be set aside on the basis of Petitioner's Objection 2 or, in the event that the Board did not adopt such recommendation, that a hearing be held on Objection 2 and certain other objections. Thereafter, the Employer filed exceptions to the Regional Director's report. On July 13, 1977, the Board, having considered the Regional Director's report, the Employer's exceptions thereto, and the entire record, issued its Decision and Direction of Second Election2 in which it adopted the Regional Director's recommendations that Petitioner's Objec- tion 2 be sustained, the election be set aside based thereon, and a new election be directed.' Pursuant thereto a rerun election was conducted on August 18, 1977, the tally showing 190 ballots for, and 179 against, the Union, with 21 ballots chal- lenged, a number sufficient to affect the results of the Not reported in bound volumes of Board Decisions. The Board. therefore, found it unnecessary to pass upon the remaining objections with respect to which the Regional Director, in the alternative. had recommended a hearing be held. 236 NLRB No. 4 32 SPERRY RUBBER & PLASTICS CO.. INC. election. Thereafter, the Employer filed timely objec- tions to conduct affecting the results of the election. alleging, in substance, that Petitioner, its agents, and persons acting on its behalf had threatened, coerced. and intimidated employees by damaging their prop- erty and threatening them with harm and had en- gaged in other improper acts and conduct. After in- vestigation, the Regional Director on September 22. 1977, issued a Report on Objections to Conduct Af- fecting Results of Rerun Election, Challenged Ballot, Recommendations to the Board, Order Directing Hearing, Order Consolidating Cases, and Notice of Hearing. In said report, the Regional Director rec- ommended to the Board that the Employer's Objec- tions be overruled in their entirety: that the chal- lenges to three ballots be sustained: that the challenges to seven ballots be overruled; and that the latter ballots be opened and counted. He further rec- ommended that a hearing be held to resolve the is- sues raised by the challenges to 11 ballots and that Case 25-RC-6477 be consolidated for the purpose of hearing with Case 25-CA-9084, a pending related unfair labor practice proceeding. No exceptions to said report were filed by either party. Accordingly, on October 17, 1977, the Board issued an order adopting the Regional Director's recommendations as contained in his report and directing him to open and count certain challenged ballots. On October 21, 1977, the challenged ballots were opened and count- ed, and a revised tally was issued and served on the parties showing that 191 votes were cast for, and 184 against, the Union, with 12 determinative challenges. On November 15, 1977, the Acting Regional Direc- tor approved a settlement agreement in Cases 25 CA-9084 and 25-RC-6477, wherein it was agreed that eight unresolved challenged ballots would be opened and counted. On November 23, 1977, said challenged ballots were counted, and a second re- vised tally of ballots was issued and served on the parties showing that 195 votes were cast for, and 188 votes against, the Union. The four remaining ballots were insufficient in number to affect the results of the election. Thereafter, on November 30, 1977, the Union was certified as exclusive bargaining agent of the employees in the unit stipulated to be appropri- ate. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 'See Ptitshurgh Phile Glass (Xo v. I NLRB, 313 U S 146. 162 (1941). Rules and Regulations of the Board. Sees, 102.67tf) and 102.69(c) All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously 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 proper- ly litigable in this unfair labor practice proceeding. In its response to the Notice To Show Cause. Re- spondent contends that summary judgment is inap- propriate here in light of its argument that the Board's action in sustaining Petitioner's Objection 2 and setting aside the original election was violative of the first and fifth amendments of the Constitution, and that it is entitled to an opportunity to litigate the vailidity of the second election. Prior to adopting the findings, conclusions, and recommendations of the Regional [)irector's initial report, the Board consid- ered the report, Respondent's exceptions thereto, and the entire record in the case. In its exceptions to that report. Respondent specifically contended that the Regional Director's recommendation that the elec- tion be set aside based on Petitioner's Objection 2 was violative of the first amendment. Therefore, by its adoption of the Regional Director's recommenda- tion, the Board found Respondent's contention with- out merit. Furthermore, Respondent filed no excep- tions to the Regional Director's report recom- mending that Respondent's objections with respect to the second election be overruled in their entirety. Finally, Respondent did not in the underlying repre- sentation proceeding, and does not in the instant proceeding, raise any substantial or material factual issues which would warrant a hearing. Accordingly, we grant the Motion for Summary Judgment.5 On the basis of the entire record, the Board makes the following: FIDIN(;S OF FAC I THE BI SINESS OF RESPONDFNr Respondent. an Indiana corporation, maintains its principal office and facilities at Brookville. Indi- ana, where it is engaged in the manufacture, sale, and distribution of rubber and plastic products. During the 12-month period preceding issuance of the com- plaint. a representative period. Respondent. in the course and conduct of its business operations, manu- 'I W' herche den\ the General (iounsel's motion to strike portions of Respo.ndent's anser Wre further find, however, that Respondent's denials in its answel t o the complaint raise no suuhbtantial or material issues of fact Which warr.lnt is hearing 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factured, sold, and distributed products valued in ex- cess of $50,000 which were shipped from its afore- mentioned facilities directly to States other than the State of Indiana. 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 juris- diction herein. 11. TE I. ABOR ORGCANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica is a labor organization within the meaning of Section 2(5) of the Act. 111 iilt IUNFAIR I.ABOR PRACT(ICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Respondent at its Brookville, Indiana. facilities, including all lead people, janitors, all dye shop employees, all quality control employ- ees, and all truckdrivers; but excluding all tech- nical employees, all salesmen, all office clerical employees. all professional employees, and all guards and supervisors as defined in the Act. 2. The certification On August 18. 1977, a majority of the employees of Respondent in said unit. in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 25, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on November 30, 1977, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Reque.st To Bargain and Respondent's Refitsal Commencing on or about December 2, 1977. and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-hbargaining representative of all the employees in the above-described unit. Commencing on or about December 1, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since on or about December 2, 1977, and at all times there- after, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( ) of the Act. IV 'ILE 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 1, above, have a close, inti- mate, 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. TIlE 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 appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultryv Company, Inc.. 136 NLRB 785 (1962): Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964): Bur- nett Construction CompanY., 149 NLRB 1419. 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON( l USIONS OF LAW 1. Sperry Rubber & Plastics Co., Inc., is an em- 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union. United Automobile. Aero- space and Agricultural Implement Workers of Amner- ica is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Brookville. Indiana. fa- cilities, including all lead people. janitors. all d e shop employees. all quality control employees. and all truckdrivers: but excluding all technical emplo!- ees. all salesmen. all office clerical employees. all professional employees. and all guards and super is- ors as defined in the Act. constitute a unit appropri- ate for the purposes of collective hargainineg * ithin the meaning of Section 9(b) of the Act. 4. Since November 30. 1977. the above-nnamed la- bor organization has been anad now is the certified and exclusive representative of all eimplo ees 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 December 2. 1977. and at all times thereafter. to bargain collectivel' with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. Bv the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining. and coercing emplo ees in the exercise of the rights guaranteed to them in Section 7 of the Act. and therehb has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)( I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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. Sperry Rubber & Plastics Co.. Inc.. Brookville. Indi- ana, 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 con- ditions of employment with International Union. United Automobile. Aerospace and Agricultural Im- plement Workers of America. as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All production and maintenance employees em- plovyed bh Respondent at its Brookville. Indiana. facilities, including all lead people. janitors, all d`e shop employees. all quality control emplo\- ees. and all truckdrivers: but excluding all tech- nical employees. all salesmen, all office clerical employees, all professional employees. and all guards and supervisors as defined in the Act. (b) In an' like or related manner interfering with. restiraining. or coercing employees in the exercise of the riights cuLaranteed them in Section 7 of the Act. 2. 1 ake the following affirmative action w hich 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 enplo., ees in the aforesaid appropriate unit w.ith respect to rates of pas. 'wages. hours. and other terms and conditions of emplo ment. and. if an under- standing is reached. embod`, such understanding in a signed agreement. (h) Post at its offices and facilities at Brookville. Indiana. copies of the attached notice marked "Ap- pendix.' (Copies of said notice, on forms provided hb the Regional Director for Region 25, after being dub, signed by Respondent's representative. shall be posted bh Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive da`,s thereafter. in conspicuous places. including all places where notices to employees are customaril'. posted. Reasonable steps shall be taken b\ Respon- dent to insure that said notices are not altered. de- faced. or covered bv an' other material. (c) NotifN the Regional Director for Region 25. in ,writing. within 20 days from the date of this Order, what steps have been taken to comply herewith. In1 the elenl that this Order i, eniforced h .a Judgment of a t nited Slate, ( OLIrrI Appeal. the 'ords In the notlce reading "Poted hi Order of the N.ltn.ial l abort Relations Board" .hall read PPoied PFursunl 1t a JhdInltl f tilhe I nited States ( ourt of A.ppeal, Fnfiorl.ine an Order of Ihe NLitlill l I lhor Rclations Board" APPEN DIX NOTrCt- 1o E1PIO I-. FS Positn) Bs' ORDI)R Of: THE National Labor Relations Board An Agenc? of the United States Government WVit ni.i NOT refuse to bargain collectivel, concerning rates of pa,. wages. hours, and other terms and conditions of employment with Inter- national Union. UInited Automobile. Aerospace and Agricultural Implement Workers of Amer- 35 SPERRY RUBBER & PLASTICS CO., INC. ica, as the exclusive representative of the em- ployees in the bargaining unit described below. WE Wil. NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE wn.I. upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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 employees employed by Respondent at its Brookville, In- diana, facilities, including all lead people, jan- itors, all dye shop employees, all quality con- trol employees, and all truckdrivers: but excluding all technical employees, all sales- men, all office clerical employees, all profes- sional employees, and all guards and supervis- ors as defined in the Act. SPERRY RUBBER & PLASTI(CS Co. IN(. 36