Universal Prototype, Inc.

UNIVERSAL PROTOTYPE, INC. Universal Prototype, Inc. and Pattern and Model Makers Association of Warren and Vicinity, AFL- CIO. Case 7-CA-14394 January 13, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on September 14, 1977, by the Pattern and Model Makers Association of Warren and Vicinity, AFL-CIO, herein called the Union, and duly served on Universal Prototype, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued an amended complaint on October 14, 1977, 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 an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the amended complaint alleges in substance that on August 9, 1977, following a Board election in Case 7- RC-14245, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate; I and that, commencing on or about August 18, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On October 21, 1977, Respondent filed its answer to the amended com- plaint admitting in part, and denying in part, the allegations in the amended complaint. On November 1, 1977, counsel for the General Counsel filed directly with the Board a motion to transfer the case to the Board and Motion for Summary Judgment. Subsequently, on November 10, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Motion for Summa- ry Judgment. I Official notice is taken of the record in the representation proceeding, Case 7-RC-14245, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Senes 8, as amended. See LTV Electrosystems, Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4, 234 NLRB No. 38 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 in its opposition to the Motion for Summary Judgment, Respondent basically questions the validity of the underlying representation proceeding and the resulting certifica- tion of the Union because of its objections to the election and the failure to hold a hearing thereon, which it now requests. In addition, Respondent asserts there are issues as to the allegations of a request to bargain and of the status of the Union as exclusive bargaining representative of its employees which require a hearing. An examination of the record in Case 7-RC-14245 reveals that an election conducted on May 5, 1977, pursuant to a Stipulation for Certification Upon Consent Election, resulted in a vote of 12 for and 10 against the Union, with I challenged ballot which was not sufficient to affect the results of the election. Respondent filed timely objections to conduct affect- ing the results of the election, alleging that the most vocal antiunion employee failed to vote in the election because of his fear of reprisal from prounion employees. After investigation, the Regional Direc- tor, on May 19, 1977, issued his report and recom- mendations on the objections to conduct affecting the results of the election in which he recommended that the objection be overruled in its entirety and that the Board certify the Union. Respondent filed timely exceptions to the Regional Director's report, as well as additional objections to conduct affecting the results of the election. The Board, on August 9, 1977, issued a decision and certification of represen- tative in which it adopted the findings and recom- mendations of the Regional Director, refused to consider Respondent's additional objections which were raised for the first time before the Board, and certified the Union as exclusive bargaining represen- tative of employees in the stipulated appropriate unit. 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(aX5) is not entitled 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penrelo, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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. 3 We there- fore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Respondent also contends that its answer alleging lack of knowledge of requests to bargain and of the status of the Union as the exclusive representative of its employees raises issues warranting a hearing. We disagree. In his Motion for Summary Judgment, counsel for the General Counsel has alleged that a request for bargaining was made by the Union, which request was attached to the amended com- plaint. However, Respondent in its answer admitted that it sent to the Union the letter attached to the amended complaint, which letter states that Respon- dent "must decline your offer to bargain at this time." Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation with its prin- cipal place of business in the city of Fraser, Michi- gan, is engaged in the manufacture and nonretail sale of prototype plastic parts and related products. During the past 12 months, Respondent sold prod- ucts valued in excess of $50,000 to General Motors Corporation, which during the year ending Decem- ber 31, 1976, had gross revenue in excess of $1 million, and which during the same period shipped from its Michigan plants goods valued in excess of $50,000 directly to 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 Respondent contends that the Board should consider what it alleges as "newly discovered" or "previously unavailable" evidence which it raised for the first time following the issuance of the Regional Director's report and II. THE LABOR ORGANIZATION INVOLVED Pattern and Model Makers Association of Warren and Vicinity, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time journeymen, apprentice and trainee mold makers, model mak- ers, pattern makers, fixture builders, and wood and metal shop maintenance employees em- ployed by the Employer at its facility located at 17085 Masonic, Fraser, Michigan; but excluding all production and maintenance employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On May 5, 1977, 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 bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 9, 1977, 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 August 16, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about August 18, 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 collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since August 18, 1977, and at all times thereafter, refused recommendations in Case 7-RC-14245. The Board refused to consider the same "newly discovered" evidence in Case 7-RC-14245 because it was not timely filed, and for the same reason we will not consider that evidence in the present case. 238 UNIVERSAL PROTOTYPE, INC. to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such refusal, 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, 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, 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 certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry 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); Burnett 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: CONCLUSIONS OF LAW 1. Universal Prototype, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Pattern and Model Makers Association of Warren and Vicinity, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time journeymen, apprentice and trainee mold makers, model makers, pattern makers, fixture builders, and wood and metal shop maintenance employees employed by the Em- ployer at its facility located at 17085 Masonic, Fraser, Michigan; but excluding all production and maintenance employees, office clerical employees, professional employees, guards and 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 August 9, 1977, 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 August 18, 1977, 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(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 the Respondent, Universal Prototype, Inc., Fraser, Michigan, 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 Pattern and Model Makers Association of Warren and Vicinity, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time journeymen, apprentice and trainee mold makers, model mak- ers, pattern makers, fixture builders, and wood and metal shop maintenance employees em- ployed by the Employer at its facility located at 17085 Masonic, Fraser, Michigan; but excluding all production and maintenance employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Fraser, Michi- gan, copies of the attached notice marked "Appen- dix."4 Copies of said notice, on forms provided 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 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily 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 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoncE 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 Pattern and Model Makers Association of Warren and Vicinity, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. 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 Section 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 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 understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time jour- neymen, apprentice and trainee mold mak- ers, model makers, pattern makers, fixture builders, and wood and metal shop mainte- nance employees employed by the Employer at its facility located at 17085 Masonic, Fraser, Michigan; but excluding all produc- tion and maintenance employees, office cler- ical employees, professional employees, guards and supervisors as defined in the Act. UNIVERSAL PROTOTYPE, INC. 240