U.S. Mags

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Art Hale, Inc., d/b/a U.S. Mags and International Union, United Automobile, Aerospace & Agricul- tural Implement Workers of America, UAW. Case 21-CA-11323 March 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on October 18, 1972, by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, herein called the Union, and duly served on Art Hale, Inc., d/b/a U.S. Mags, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on October 20, 1972, 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 complaint alleges in substance that on September 29, 1972, following a Board election in Case 21-RC-12647 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; 1 and that, commencing on or about October 12, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 15, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and submitting affirmative defen- ses. On November 22, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, request- ing that the Board take official notice of the documents in Case 21-RC-12647, and submitting, in effect, that the Respondent, in its answer, is attempting to relitigate issues which have been previously litigated and decided in the underlying ' Official notice is taken of the record in the representation proceeding, Case 21-RC-12647, 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), representation proceeding, and that there are no factual issues which warrant a hearing. He, therefore, requests the Board to grant the Motion for Summary Judgment. Subsequently, on November 30, 1972, 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. On December 13, 1972, the Respondent filed a Motion for Summary Judgment of Dismissal of Complaint, accompanied by a brief in support thereof and in opposition to the General Counsel's Motion for Summary Judgment. 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 Motion for Summary Judgment of Dismissal of Complaint, accompanied by a brief in support thereof and in opposition to the General Counsel's Motion for Summary Judgment, as in the affirmative defenses contained in its answer to the complaint, the Respondent attacks the Regional Director's Report with respect to his findings and conclusions on the Respondent's objections to conduct 'affecting the results of the election, which were adopted by the Board in its Decision and Certification of Represent- ative, issued on September 29, 1972. The Respondent admits that it has declined to recognize the Board's Decision and Certification of Representative and further admits that it "has taken this action because it is the only available means of judicial review of the Board's Decision overruling the Company's Objec- tions to Conduct Affecting Election." The record of the prior representation proceeding, which is before us, shows that the Board in its Decision and Certification of Representative issued on September 29, 1972, had considered the entire record in this case with respect to the issues under review, including the Regional Director's Report, in which he recommend- ed that the Respondent's objections to the election be overruled, and the Respondent's exceptions thereto, and adopted the Regional Director's findings and recommendations. The Board further found that the Respondent's exceptions did not raise material and substantial issues of fact warranting that a hearing be held. Accordingly, as the Board overruled the Respondent's objections to the election in their entirety and as the tally of ballots showed that the 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 202 NLRB No. 55 U.S. MAGS Union had received a majority of the valid ballots cast, the Union was certified. Thus, the Respondent, by attacking the legal effect or validity of the Board's Decision and Certification of Representative is attempting to relitigate the same issues which it raised and litigated in the prior representation proceeding, Case 21-RC-12647. Upon the foregoing, and having reviewed the record in Case 21-RC-12647, as well as the record in the instant unfair labor practice proceeding, we find no grounds to support the Respondent's contention that an evidentiary hearing is required in this unfair labor practice proceeding. Although the Respondent alludes to "newly discovered or previously unavaila- ble evidence" it could adduce if accorded the opportunity for an evidentiary hearing, it has not shown that the evidence is in fact newly discovered or was previously unavailable to it during the course of the representation proceeding. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation in an unfair labor practice case of issues which were or could have been litigated in the prior representation proceeding.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent has not offered to adduce at a hearing any evidence which is in fact newly discovered or was previously unavailable, nor are there any special circumstances herein which would require the Board to reexamine the decision made in the representation proceeding. As all material issues have been previously decided by the Board, we find that there are no matters requiring an evidentiary hearing before an Adminis- trative Law Judge. Accordingly, the General Coun- sel's Motion for Summary Judgment is granted, and the Respondent's Motion for Summary Judgment of Dismissal of Complaint is denied. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation, is engaged in business at Long Beach, California, in the manufacture and sale of wheels. In the course and conduct of its business operations the Respondent annually sells and ships goods valued in excess of $50,000 directly to customers located outside the State of California. 459 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 International Union, United Automobile, Aero- space & Agricultural Implement Workers of America, UAW, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including employees in the foundry, machine shop, shipping and receiving employees, packag- ing, boxing, polishing, and truckdrivers; exclud- ing office employees, professional employees, guards and supervisors as defined in the National Labor Relations Act. 2. The certification On June 1, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted pursuant to a Stipulation for Certification Upon Consent Election, under the supervision of the Regional Director for Region 21, 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 September 29, 1972, 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 October 2, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about October 12, 1972, and continu- 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) 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since October 12, 1972, 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, Respon- dent 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 the 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, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 1. Art Hale, Inc., d/b/a U.S. Mags, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space & Agricultural Implement Workers of Ameri- ca, UAW, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees, including employees in the foundry, machine shop, shipping and receiving employees, packaging, box- ing, polishing, and truckdrivers; excluding office employees, professional employees, guards and supervisors as defined in the National Labor Rela- tions Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 29, 1972, 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 October 12, 1972, 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, 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 Respondent, Art Hale, Inc., d/b/a U.S. Mags, 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 Automobile, Aerospace & Agricultural Im- plement Workers of America, UAW, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including employees in the foundry, machine shop, shipping and receiving employees, packag- ing, boxing, polishing, and truckdrivers; exclud- U.S. MAGS 461 ing office employees, professional employees, guards and supervisors as defined in the National Labor Relations 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Long Beach, California, location copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 21, 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 Inter- national Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, as the exclusive representative 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 in a signed agreement. The bargain- ing unit is: All production and maintenance employ- ees, including employees in the foundry, machine shop, shipping and receiving em- ployees, packaging, boxing, polishing, and truckdrivers; excluding office employees, professional employees, guards and supervi- sors as defined in the National Labor Relations Act. ART HALE, INC., D/B/A U.S. MAGS (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 compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.