Foster Transformer Co.

FOSTER TRANSFORMER CO. Foster Transformer Company and District 34 of the International Association of Machinists and Aero- space Workers, AFL-CIO. Case 9-CA-7653 August 15, 1973 571 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: DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on March 16, 1973, by District 34 of the International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Foster Transformer Com- pany, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a com- plaint on March 27, 1973, against Respondent, alleg- ing 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 proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 5, 1973, following a Board election in Case 9-RC-9748 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 15, 1973, and at all times thereaf- ter, 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 April 4, 1973, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On April 17, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 7, 1973, 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 thereafter did not file a re- sponse to Notice To Show Cause. ' Official notice is taken of the record in the representation proceeding, Case 9-RC-9748, 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 (CA 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (CA 5, 1969), 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 Ruling on the Motion for Summary Judgment In its answer to the complaint, the Respondent con- tends that the Union's certification is invalid because the election in Case 9-RC-9748 should have been set aside on the basis of its objections to the conduct of the election. In his Motion for Summary Judgment, counsel for the General Counsel argues that the Re- spondent is attempting to litigate the legal effect of matters previously litigated and decided in the under- lying representation case and this the Respondent may not do. We agree with the General Counsel. Our review of the record reveals that a hearing was held on a petition for representation filed by the Union in Case 9-RC-9748. Thereafter, the Regional Director issued his Decision and Direction of Elec- tion on October 20, 1972, in which he found that the Respondent's production and maintenance employ- ees constituted an appropriate unit, that they were represented by the Foster Transformer Company Em- ployees Independent Union, herein called Indepen- dent, and that, on the basis of its current collective-bargaining agreement, the Independent has standing to intervene in the proceeding. Since the In- dependent, although served with Notice of Hearing, made no appearance at the hearing, the Regional Di- rector directed that the Independent' s name remain on the ballot unless, within 7 days, the Regional Di- rector was administratively advised by the Indepen- dent that it disclaimed any interest in the unit employees. As no disclaimer was forthcoming, both the Independent and Union were on the ballot in the election conducted on November 16, 1972.2 The Union won the election. Thereafter, the Respondent filed timely objections to the election alleging, in substance, that (1) the Inde- pendent became defunct following the defection of its committee members (concealed until 3 days before the election) and, therefore, its name should have been removed from the ballots: (2) the Independent disclaimed interest in the election; (3) the Indepen- dent was not, in fact, a union, but was, at the time of the election, an agent and puppet of the Union; (4) the acts of the Independent's committee members created an atmosphere of confusion which destroyed the lab- 2 The Regional Director denied the Respondent's motion of November 14, 1972, to remove the Independent' s name from the ballot and to postpone the election pending further investigation 205 NLRB No. 82 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oratory conditions for an election; and (5) the Union bribed employees and made factual misrepresenta- tions to employees shortly before the election. After investigation of the Respondent's objections, the Regional Director issued, on Feburary 5, 1973, a Supplemental Decision and Certification of Repre- sentative in which he overruled the objections in their entirety as being without merit and on the further ground that the Respondent failed to serve the objec- tions on the Independent. Accordingly, he certified the Union. The Respondent filed with the Board a timely request for review reiterating, in effect, its ob- jections and arguing that (1) the Regional Director departed from Board precedent in concluding that the Independent was a viable organization at the time of the election; (2) the Regional Director's decisions on substantial factual issues were clearly erroneous on the record; (3) the Regional Director's denial of a hearing on the substantial factual issues prejudiced the Respondent; and (4) service of the objections was not required to be made on the Independent which was defunct and was the Union's alter ego. On March 6, 1973, the Board denied the request for review as raising no substantial issues warranting review. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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 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. We shall, accordingly, grant the Motion 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, an Ohio corporation, is engaged in the manufacture and sale of transformers at its plant lo- cated at Cincinnati, Ohio. During the past 12 months, 3 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 ( 1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) a representative period, Respondent had a direct out- flow of goods and materials in interstate commerce valued in excess of $50,000 which it sold and shipped directly from its Cincinnati, Ohio, plant to points out- side the State of Ohio. We find, on the basis of the foregoing, that Respon- dent 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. 11 THE LABOR ORGANIZATION INVOLVED District 34 of the International Association of Ma- chinists and Aerospace Workers, 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 pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Respondent at its Cincinnati, Ohio, location including truckdrivers, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On November 16, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 9, 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 February 5, 1973, and the Union con- tinues 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 12, 1973, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 9 and 15, 1973, and continuing at FOSTER TRANSFORMER CO. all times thereafter to date, the Respondent has re- fused, and continues to refuse, to recognize and bar- gain 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 15, 1973, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce 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. Foster Transformer Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 34 of the International Association of 573 Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent at its Cincinnati, Ohio, location, in- cluding truckdrivers, but excluding all office clerical employees, professional employees, guards, and su- pervisors as defined in the Act constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 5, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 15, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 mean- ing 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 Rela- tions Board hereby orders that Respondent, Foster Transformer Company, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with District 34 of the Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO , as the exclusive bargaining rep- resentative of its employees in the following appropri- ate unit: All production and maintenance employees of the Respondent at its Cincinnati , Ohio, location, including truckdrivers, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Cincinnati, Ohio, location copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 9, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 9, 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " cerning rates of pay, wages, hours, and other terms and conditions of employment with Dis- trict 34 of the International Association of Ma- chinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Employer at its Cincinnati, Ohio, loca- tion, including truckdrivers, but excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. FOSTER TRANSFORMER COMPANY (Employer) Dated By 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 con- (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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.