Cerlo Mfg. Corp.

CERLO MANUFACTURING CORPORATION Cerlo Manufacturing Corporation and Warehouse, Mall Order, Office, Technical and Professional Employees Union Local No. 743, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 13-CA-16562 January 24, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on June 13, 1977, by Ware- house, Mail Order, Office, Technical and Profession- al Employees Union Local No. 743, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Cerlo Manu- facturing Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on July 12, 1977, which was amended on August 22, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 20, 1977, following a Board election in Case 13-RC-14151, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about June 9, 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. On July 25, 1977, Respondent filed its answer to the complaint and on September 2, 1977, its answer to the amended complaint, admitting in part, and denying in part, the allegations in the complaint. In its answers to the complaints, Respondent sets forth an affirmative defense in which it alleges that the first election conducted on October 6, 1976, was I Official notice is taken of the record in the representation proceeding, Case 13-RC-14151, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Cor., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 234 NLRB No. 61 erroneously set aside by the Board, and therefore, the second election conducted on May 12, 1977, was "without legal effect." On September 21, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 4, 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 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 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 amended complaint and response to the Notice To Show Cause, Respondent admits its refusal to bargain, but denies that it thereby violated Section 8(aX5) and (1) of the Act. Specifically, Respondent attacks the Union's certifi- cation on the basis that in the representation election conducted on October 6, 1976, the Union failed to gain a majority of the votes cast in a unit of Respondent's employees appropriate for collective bargaining, that said election was erroneously set aside by the Board, and that, therefore, the second election held on May 12, 1977, was without legal effect. Counsel for the General Counsel argues that the affirmative defense set forth in Respondent's answer constitutes an attempt to relitigate issues that were raised and determined by the Board in the underly- ing representation case. A review of the record herein, including the record in Case 13-RC-14151, shows that on September 2, 1976, the Regional Director for Region 13 approved a Stipulation for Certification Upon Consent Elec- tion, which had been executed by Respondent and the Union on the same date. 2 On October 6, 1976, an election by secret ballot was conducted under the direction and supervision of the Regional Director among the employees in the unit set forth in the Stipulation for Certification Upon Consent Election described above. The tally of ballots issued after the election shows that of approximately 21 eligible 2 The stipulated unit is: Al full-time and regular part-time warehouse, production, and maintenance employees employed at the Employer's facility located at Ith Street and Commerce Avenue, Lockport, Illinois 60441, but excluding all office clerical employees and salesmen and all guards and supervisors, including leadmen, as defined in the Act. 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voters 21 cast ballots, of which 8 were cast for, and 9 were cast against, the Union. There were four challenged ballots, a number sufficient to affect the results of the election. On October 13, 1976, timely objections to conduct affecting the results of the election were filed by the Union and, on December 3, 1976, the Regional Director issued a Report on Challenges and Objec- tions, in which he recommended, inter alia, that one of the Union's aforesaid objections be sustained and that a second election be directed by the Board. In the alternative, the Regional Director recommended, inter alia, that a hearing be directed with regard to six other objections filed by the Union. On or about December 16, 1976, Respondent filed with the Board exceptions to the Regional Director's Report on Challenges and Objections and a brief in support thereof. Respondent excepted, inter alia, to the Regional Director's determination that Objection 9 be sustained. Objection 9 read as follows: 9. Prior to the election, the employer did not post any National Labor Relations-Board notices, announcing the filing of the petition, name of petitioner, date, time and place of the election, thereby depriving employees of an opportunity to be informed of a forthcoming election. On or about December 23, 1976, the Union filed with the Board its reply to Employer's exceptions to the Regional Director's Report on Challenges and Objections. Thereafter, on February 9, 1977, Respon- dent filed a motion for leave to file a reply brief and a reply brief in support of Employer's exceptions. On or about February 11, 1977, the Union filed a letter with the Board in which it requested that the Board deny Respondent's aforesaid motion for leave to file a reply brief. In a letter dated February 14, 1977, the Board, by its Deputy Executive Secretary, denied Respondent's motion for leave to file a reply brief. On April 7, 1977, the Board issued a Decision and Direction of Second Election (not reported in volumes of Board decisions) in which it adopted, inter alia, the Region- al Director's recommendation to sustain the Union's Objection 9. On April 20, 1977, the Regional Direc- tor issued a Notice of Second Election and, pursuant thereto, a second election was conducted on May 12, 1977, among the employees in the unit described above. At the conclusion of the second election, a tally of ballots was prepared and served on the parties which showed that of approximately 21 eligible voters 21 cast ballots, of which 15 were cast for, and 6 against, the Union. Thereafter, on May 20, 3 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). 1977, the Regional Director issued a Certification of Representative, certifying the Union as the exclusive bargaining agent of the employees in the aforemen- tioned stipulated unit. By letter to Respondent, dated June 1, 1977, the Union requested that Respondent bargain collective- ly with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of employees in the unit. By separate letter of the same date, the Union also requested that Respondent furnish it with the names, rates of pay, job classifications, hiring dates, and present benefits of all employees in the unit. By letter dated June 9, 1977, Respondent stated that it refused to bargain collectively with, or provide the requested informa- tion to, the Union. Respondent based its refusal on the ground that the Union "failed to achieve certifi- cation as the collective bargaining representative pursuant to the representation election of October 6, 1976, which election subsequently was erroneously set aside by the. . . Board." Respondent contends that its failure to post the notice of election prior to the first election was due to the Board agent's failure to provide it with copies of such notice and, in any event, did not interfere with laboratory conditions. This contention was fully considered and disposed of by the Board in the underlying representation proceeding. Thus, in its Decision and Direction of Second Election, the Board adopted the Regional Director's report recom- mending that the Union's Objection 9 be sustained. It thus appears that Respondent is attempting to raise herein issues which were raised and determined in the underlying representation case. 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. 3 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. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 398 CERLO MANUFACTURING CORPORATION FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is engaged in the manufacture of copper wire. Respondent annual- ly purchases and receives goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Illinois. It also annually derives gross revenues in excess of $900,000. 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. II. THE LABOR ORGANIZATION INVOLVED Warehouse, Mail Order, Office, Technical and Professional Employees Union No. 743, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 111. 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 warehouse, production, and maintenance employees em- ployed at the Employer's facility located at 11th Street and Commerce Avenue, Lockport, Illinois 60441, but excluding all office clerical employees and salesmen and all guards and supervisors, including leadmen, as defined in the Act. 2. The certification On May 12, 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 13, 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 May 20, 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 June 1, 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 and to furnish certain information pertaining to the wages and terms and conditions of employment of the employ- ees in said unit. Commencing on or about June 9, 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 exclu- sive representative for collective bargaining of all employees in said unit or to provide it with the requested information. Accordingly, we find that Respondent has, since June 9, 1977, 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 engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. We further find that Respondent has, since June 9, 1977, and at all times thereafter, refused to furnish information necessary and relevant to the Union in the performance of its bargaining obligation, includ- ing such information as was requested in the Union's letter of June 1, 1977, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) 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. 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also having found that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with certain information, we shall order that it cease and desist therefrom and, upon request, furnish the Union such information as is necessary and relevant for the proper performance of its bargaining obligation, including such information as was requested in the Union's letter of June 1, 1977. 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 I. Cerlo Manufacturing Corporation is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse, Mail Order, Office, Technical and Professional Employees Union Local No. 743, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time warehouse, production, and maintenance employees employed at the Employer's facility located at I th Street and Commerce Avenue, Lockport, Illinois 60441, but excluding all office clerical employees and salesmen and all guards and supervisors, including leadmen, 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 May 20, 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 June 9, 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(a)(5) of the Act. 6. By refusing on or about June 9, 1977, and at all times thereafter, to furnish information, necessary and relevant to the above-named labor organization in the performance of its bargaining obligation, including such information as was requested in the Union's letter of June 1, 1977, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 7. By the aforesaid refusals to bargain and to provide information necessary and relevant to the Union in the performance of its bargaining obliga- tion, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed 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(aX I) of the Act. 8. 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, Cerlo Manufacturing Corporation, Lockport, Illi- nois, 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 Warehouse, Mail Order, Office, Technical and Professional Employees Union Local No. 743, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time warehouse, production, and maintenance employees em- ployed at the Employer's facility located at 11th Street and Commerce Avenue, Lockport, Illinois 60441, but excluding all office clerical employees and salesmen and all guards and supervisors, including leadmen, as defined in the Act. (b) Refusing to furnish information necessary and relevant to the Union in the performance of its bargaining obligation, including such information as was requested in the Union's letter of June 1, 1977. 400 CERLO MANUFACTURING CORPORATION (c) 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) Upon request, furnish information necessary and relevant to the Union in the performance of its bargaining obligation, including such information as was requested in the Union's letter of June 1, 1977. (c) Post at its facility located at 11th Street and Commerce Avenue, Lockport, Illinois, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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. (d) Notify the Regional Director for Region 13, 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 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 Ware- house, Mail Order, Office, Technical and Profes- sional Employees Union Local No. 743, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of our employees in the bargaining unit described below. WE WILL NOT refuse to furnish the above- named Union with information necessary and relevant in the performance of its bargaining obligation, including such information as was requested in the Union's letter of June 1, 1977. 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 ware- house, production, and maintenance em- ployees employed at the Employer's facility located at I th Street and Commerce Ave- nue, Lockport, Illinois 60441, but excluding all office clerical employees and salesmen and guards and supervisors, including lead- men, as defined in the Act. WE WILL, upon request, furnish the above- named Union with information necessary and relevant in the performance of its bargaining obligation, including such information as was requested in the Union's letter of June 1, 1977. CERLO MANUFACTURING CORPORATION 401