Savair Manufacturing Co.

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Savair Manufacturing Company and Mechanics Edu- cational Society of America, AFL-CIO. Case 7-CA-8622 November 23, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on April 12, 1971, by Mechan- ics Educational Society of America, AFL-CIO, herein called the Union, and duly served on Savair Manufacturing Company, herein called the Respon- dent, the Acting General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 7, issued a complaint on June 30, 1971, against Respondent, alleging that Respondent 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, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 3, 1971, following a Board election in Case 7-RC-10098 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about March 5, 1971, 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. On July 12, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 14, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 22, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with 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 Respondent denies that the Union is the exclusive collective-bargaining representative of its employees in the stipulated appropriate unit or that it is obligated to bargain with the Union since the Board had not afforded it a, full and impartial hearing on its objections to the election in the underlying representation proceeding, Case 7-RC-10098. We find no merit in Respondent's position. The record in Case 7-RC-10098 indicates that, pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was con- ducted among the employees in the stipulated unit in which 22 votes were cast for, and 20 against, the Union and 1 ballot was challenged. Thereafter, Respondent filed timely objections to conduct affect- ing the results of the election and the Union filed an "Answer to Objections to Election." After a prelimi- nary investigation, the Acting Regional Director ordered a hearing upon the Respondent's Objections 1 through 4. At the hearing, Respondent moved to withdraw its Objection 3 and adduced no evidence in support of its Objection 2. Testimony was taken with respect to Objections 1 and 4 which related, respec- tively, to the Union's alleged threats to fine employees who failed to sign authorization cards prior to the election, and to the Board agent's alleged refusal to permit an observer to assist an illiterate employee who, consequently, cast a void ballot. In his Report on Objections and Recommendation, the Hearing Offi- cer recommended that the Board overrule Objections 1, 2, and 4, approve the withdrawal of Objection 3, ,and issue a certification to the Union. Respondent filed timely exceptions to the Hearing Officer's Report. On March -3, 1971, the Board issued a Decision and Certification of Representative in which it adopted the Hearing Officer's findings and recommendations and certified the Union as the exclusive bargaining agent of Respondent's employees in the stipulated unit. Respondent, on April 12,197 1, filed a document entitled "Petition to Set Aside Certification of Representative and Request for a Rehearing on Objections to Election." Respondent asserted that it had just learned that prior to hearing certain employ- ees had notified the Regional Director that they wished to object to the election; that the Regional Director did not explain to the employees that they ' Official notice is taken of the record in the representation proceeding, 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co v. Penello, Case 7-RC-10098, as the term "record" is defined in Secs. 102.68 and 269 F.Supp. 573 (D.C. Va, 1967); Follett Corp, 164 NLRB 378, enfd. 397 102.69(f) of the Board's Rules and Regulations, Serves 8, as amended. See F.2d 91 (C.A. 7, 1968), Sec. 9(d) of the NLRA LTV Electrosystems, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 194 NLRB No. 44 SAVAIR MANUFACTURING COMPANY were allowed to appear at the hearing; and that the Board failed to notify the Respondent of these employee objections. The Board, on June 17, 1971, concluding that the employees were not parties with standing to file objections, denied the Respondent's petition as lacking in merit. Respondent's contentions herein present the same representation issues which had been considered and determined by the Board in the antecedent represent- ation proceeding in Case 7-RC-10098. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging 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 the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.3 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Michigan corporation, with its principal office and place of business in Warren, Michigan, and another installation in Detroit, Michi- gan, is engaged in the manufacture, sale, and distribution of machine parts and related products. During the calendar year 1970 Respondent had a gross revenue in excess of $500,000 and purchased and had delivered to its installations steel and other goods and materials valued in excess of $50,000 directly from points outside the State of Michigan. We find, on the basis of the foregoing, that 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. 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U S 146, 162 (1941); Rules and Regulations of the Board, Secs 102.67(f) and 102.69(c). 3 In its Answer to the Complaint, the Respondent leaves to proof the II. THE LABOR ORGANIZATION INVOLVED 299 Mechanics Educational Society 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 The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by the Employer at its plants at 24488-24536 Gibson Drive, Warren, Michigan, and 10900 Charlevoix Street, Detroit, Michigan, but excluding office clerical employees, guards, foremen, and all other supervisors as defined in the Act. 2. The certification On September 22, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 3, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 5, 1971, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about March 5, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 5, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has Union's status as a labor organization and the appropriateness of the stipulated unit. As these issues were determined by the Board in the underlying representation case, they are not subject to litigation herein. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondent, set forth in section 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 com- merce and the free flow of commerce. 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed 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 1419,142 1; enfd. 350 F,2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Savair Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Mechanics Educational Society 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 Employer at its plants at 24488-24536 Gibson Drive, Warren, Michigan, and 10900 Charlevoix Street, Detroit, Michigan, but excluding office clerical employees, guards, foremen, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 3, 1971, 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 March 5, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7-of the Act, and thereby has engaged 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 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 Relations Board hereby orders that Respondent, Savair Manufacturing Company, 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 Mechanics Educational Society of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its plants at 24488-24536 Gibson Drive, Warren, Michigan, and 10900 Charlevoix Street, Detroit, Michigan, but excluding office clerical employees, guards, foremen, and all other supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 understand- SAVAIR MANUFACTURING COMPANY 301 ing is reached, embody such understanding in a signed agreement. (b) Post at its plants. in Warren and Detroit, Michigan, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being drily 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 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 20 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 Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." interfere with, restrain, or coerce our employees 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 representative of all employees in the bargaining unit described below, 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. The bargaining unit is: All production and maintenance employ- ees employed by the Employer at its plants at 24488-24536 Gibson Drive, Warren, Michi- gan, and 10900 Charlevoix Street, Detroit, Michigan, but excluding office clerical em- ployees, guards, foremen, and all other supervisors as defined in the Act. SAVAIR MANUFACTURING COMPANY (Employer) 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 Me- chanics Educational Society of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226-3200.