Renmuth, Inc.

RENMUTH, INC. 325 Renmuth, Inc. and International Union, United Au- tomobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-8971 February 4, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on September 20, 1971, by Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Renmuth, Inc.,' herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Re- gional Director for Region 7, issued a complaint on October 14, 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 com- plaint alleges in substance that on April 8, 1971, follow- ing a Board election in Case 7-RC-10332 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' that, commencing on or about April 8, 1971, and at all times thereafter, and more particularly on April 28 and August 13, 1971, the Un- ion has requested the Respondent to bargain collec- tively with the Union as the exclusive bargaining repre- sentative; that since April 28, 1971, the Union has requested and the Respondent has refused to furnish the Union with data and information relating to rates of pay, wages, hours, and other terms and conditions of employment of bargaining unit employees; and that since April 8, 1971, and more particularly on or about August 13, 1971, Respondent has refused, and contin- ues to refuse, to bargain collectively with the Union. On October 26, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 3, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 5, ' Official notice is taken of Board files in this proceeding which show service under Sec 102 14 of the Board's Rules and Regulations ' Official notice is taken of the record in the representation proceeding, Case 7-RC-10332, as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co., 167 NLRB 151, Intertype Co. v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp., 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 1971, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. 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 response to the Notice To Show Cause, the Respondent contests the Union's majority status and the validity of its certifica- tion. The record in Case 7-RC-10332 shows that, pur- suant to the Regional Director's Decision and Direc- tion of Election, an election was conducted on March 11, 1971, in the stipulated unit of production and maintenance employees, a majority of whom voted for the Union. The Respondent thereafter filed timely ob- jections alleging in substance that the election should not have been conducted during the pendency of the unfair labor practice proceedings (Cases 7-CA-8548 and 7-CA-8734) against the Respondent; the Union misrepresented to employees that the father of a super- visor was a "powerful organizer" who wanted to union- ize the Respondent's employees; and that a majority of the employees revoked their designation of the Union. After investigation, the Regional Director issued his Supplemental Decision, Report on Objections and Cer- tification of Representative on April 8, 1971, in which he overruled the Respondent's objections and certified the Union. The Respondent filed no request for review, although it had allegedly discussed its objections with a Board agent after April 8, 1971.' It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances, and in the absence of exhaustion of ad- ministrative appeals, 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.' All of the above issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the 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 Lowell Corrugated Container Corp., 177 NLRB 169 ° See Pittsburgh Plate Glass Co v NL.R.B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(1) and 102 69(c) 195 NLRB No. 59 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made in the representation proceeding. We therefore find that the above issues are not properly litigable in this unfair labor practice proceeding. In its answer and response, the Respondent also argues in defense to the 8(aX5) allegations that (1) two Union negotiators are discharged employees, hostile to management; (2) there has been substantial expansion of the unit since the election, in that the employee complement has increased from 50 to 100; and (3) there were no requests by the Union for bargaining on April 8 and August 13, 1971, although Respondent admits that it received the Union's April 28 letter requesting immediate negotiations and collective-bargaining data and that it refused to furnish the data.' With respect to the Respondent's objection to the composition of the Union's negotiating committee, Re- spondent admits that the two discharged employees are alleged discriminatees in Cases 7-CA-8548 and 7-CA- 8734.6 Since the Act specifically guarantees the right of employees to bargain collectively through representa- tives of their own choosing, in the absence of special circumstances which do not appear here, we find no merit in the Respondent's refusal to bargain on this ground.' We find no merit in the Respondent's contention as to the purported expansion of the bargaining unit, be- cause, standing alone, and in the absence of any conten- tion or evidence that the employee complement in the appropriate unit was not "representative and substan- tial" at the time of the election, such expansion does not affect the bargaining status of the Union.' Finally, with respect to the Union's letter of April 28, 1971, which it admittedly received, the Respondent failed to respond to the Union's request for immediate negotiations and specifically refused to supply the re- quested data. Respondent thereby refused to bargain with the Union.' We shall, accordingly, grant the Mo- tion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Michigan corporation with its only office and place of business located at 9111 Schaefer in the city of Detroit, has at all times material herein been engaged in the manufacture, sale, and distribution of 6 The supervisory status of Plant Superintendent Ken Brown is irrelevant . to our determination herein 6 A Trial Examiner issued his Decision on December 8, 1971, finding that the Respondent discriminatorily discharged these two employees (TXD- 689-71) North Bros Ford, Inc., 187 NLRB No 106 Lakeshore Electric Mfg. Corp., 67 NLRB 804 ; Clement-Blythe Compa- nies, 182 NLRB 502. 1 Rod-Ric Corporation, 171 NLRB No 134. metal stampings and related products. During the year ending December 31, 1970, a representative period, Respondent sold products valued in excess of $50,000, to Chrysler Corporation which annually sells and ships in excess of $50,000 worth of products from its Michi- gan plants directly outside the State of Michigan.1° We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED 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. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective -bargaining pur- poses within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees including shipping and receiving employees and truckdrivers at the Respondent's Detroit, Michigan, plant, and ex- cluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. 2. The certification On March 11, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 7 designated the Union as their representa- tive 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 April 8, 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 April 28, 1971, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- 10 We take official notice of our exercise of jurisdiction over Chrysler Corporation in Chrysler Corporation, 148 NLRB 1124 RENMUTH, INC. lective-bargaining representative of all the employees in the above-described unit, and to furnish the Union with certain collective-bargaining data. Commencing on or about April 28, 1971, and continuing at all times there- after to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit, and to furnish the Union with the requested data. Accordingly, we find that the Respondent has, since April 28, 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 has refused to furnish the Union with requested collective-bargaining data, and that, by such refusals, Respondent 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 operations de- scribed 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 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, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, fur- nish the Union with relevant collective-bargaining data, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropri- ate 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 begin- ning 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 327 1. Renmuth, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. 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. 3. All full-time and regular part-time production and maintenance employees including shipping and receiv- ing employees and truckdrivers at the Respondent's Detroit, Michigan, plant, and excluding office clerical employees, professional employees, guards, and super- visors as defined in the Act constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 8, 1971, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 28, 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 and to furnish the Union with requested collective-bargaining data, 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 and to furnish the Union with requested collective-bargaining data, Respondent has interfered with, restrained, and co- erced, 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Renmuth, Inc., 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 Au- tomobile, Aerospace and Agricultural Implement Workers of America (UAW), and to furnish the Union with relevant collective-bargaining data as the exclu- sive bargaining representative of its employees in the following appropriate unit: 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time production and maintenance employees including shipping and re- ceiving employees and truckdrivers at the Re- spondent's Detroit, Michigan, plant, and exclud- ing office clerical employees, 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 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and furnish relevant collec- tive-bargaining data, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Detroit, Michigan, plant copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily 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. " 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government terms and conditions of employment with Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the exclusive representative of the em- ployees in the bargaining unit described below, or refuse to furnish the Union with relevant collec- tive-bargaining data. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, furnish it with relevant collective-bargain- ing data, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time production and maintenance employees in- cluding shipping and receiving employees and truckdrivers at the Respondent's Detroit, Michigan, plant, and excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. RENMUTH, INC. (Employer) 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. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other