Hemco Corp.

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hemco Corporation and District Lodge No. 71, International Association of Machinists and Aero- space Workers, AFL-CIO. Case 17-CA-5655 December 10, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on June 11, 1973, by District Lodge No. 71, International Association of Machin- ists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Hemco Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on June 29, 1973, 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 May 15, 1973, following a Board election in Case 17-RC-6481 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about June 1, 1973, 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, and to supply certain information, although the Union has requested and is requesting it to do so. On July 9, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 20, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 28, 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. Respon- dent thereafter filed a response, entitled "Answer to Notice To Show Cause." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 1 Official notice is taken of the record in the representation proceeding, Case 17-RC-6481 , 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); 207 NLRB No. 119 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 response to the Notice To Show Cause, Respondent attacks determi- nations made in the underlying representation Case 17-RC-6481. In particular, Respondent contends that (1) the Board erred in setting aside the first of the two elections herein, (2) the unit in the second election should have been a two-plant unit including employees of the Respondent's Windsor, Missouri, plant, and (3) the Union's challenges to nine employees found to be supervisors should have been overruled and not sustained. Our review of the record indicates that on October 27, 1970, during the course of the hearing in Case 17-RC-6481, the Respondent and the Union entered into a Stipulation for Certification Upon Consent Election, which provided for an election among the employees in the stipulated production and mainte- nance unit excluding, inter alia, supervisors at Respondent's Independence, Missouri, plant. The election was conducted on November 19, 1970, and the tally of ballots indicated that of approximately 39 eligible employees, 18 cast ballots for, and 20 against, the Union. The Union timely filed 10 objections. After an investigation of the objections and the report by the Regional Director and exceptions thereto, the Board, on March 17, 1971, directed a hearing. After issuance of the Hearing Officer's report and the filing of exceptions thereto by the Respondent, the Board, on October 4, 1971, issued its Decision, Order, and Direction of Second Elec- tion, in which it sustained the Union's Objection 6 (in part), set aside the first election, and, in accord with its normal practice, directed that the second election be conducted in the same unit. The second election, which had been postponed pending the processing of a related unfair labor practice case,2 was conducted on June 16, 1972. The tally of ballots indicated that of approximately 65 eligible employees, 28 voted for, and 18 against, the Union and 11 ballots were challenged. As the challenges were determinative, the Regional Director conducted an investigation and, on November 15, 1972, issued his Report on Challenged Ballots in which he recommended sustaining 10 of the chal- lenges, 9 on supervisory grounds, and another Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 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. 2 Hemco Corporation, 194 NLRB 789, enfd. 471 F.2d 656 (C.A. 8, 1972). HEMCO CORPORATION 765 because the employee was first employed after the eligibility cutoff date. He also overruled the chal- lenge to the 11th ballot, but recommended that it not be opened and counted because it would not affect the results of the election. Respondent again filed timely exceptions to the Regional Director's report. On May 15, 1973, the Board issued its Supplemental Decision and Certification of Representative in which it found that Respondent's exceptions raised no material or substantial issues of fact or law which would require a hearing, adopted the Regional Director's report, sustained the challenges, and certified the Union. With respect to the Respondent's argument that the Board erred in setting the first election aside, we note that the United States Court of Appeals for the Eighth Circuit has held that the same acts, upon which the Board relied, constituted a violation of Section 8(a)(1).3 With respect to its current conten- tion that the original single-plant unit excluding the Windsor plant is now inappropriate, the Respondent stipulated to the contrary before the first election and other than the bald assertions in its answer to the complaint and response to the Notice To Show Cause, it has made no offer of proof of intervening facts which might support its present contention. Finally, with respect to its argument that the Board erred in sustaining the challenges to the ballots of nine supervisors, we note (1) that Respondent took the position at the preelection hearing that eight of the nine were supervisors, (2) that the Regional Director's report indicated that the evidence contem- poraneous with the second election sustained his supervisory findings, and, finally, (3) that the Board's Supplemental Decision determined, in effect, that the mere assertion in its exceptions to the Regional Director's report that a newly hired personnel and production manager had assumed the supervisory duties of all nine raised no issues requiring a hearing. However, the Respondent now urges that, even if supervisory, the nine should be permitted to vote because they spend the bulk of their time performing unit work and because the Union has indicated that it may accordingly require them to join it. We find no merit in this argument. Only employees may vote in a Board election and the Congress has conferred no power upon the Board to enfranchise individuals, such as supervisors who, by statute, are excluded from the definition of "employee." 4 It thus appears that, except as discussed above, the 3 Hemco Corporation, supra. The Board has held that conduct violative of Sec. 8(a)(I) is a fortiori conduct which interferes with an election . Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786. 4 See Sees. 2(3), 9, and 14(a) of the Act 5 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). 6 The answer denies the allegation of the complaint that Respondent's Respondent is attempting to relitigate issues herein which were raised or could have been raised 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.5 All 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 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.6 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Hemco Corporation, is now, and at all times material herein has been, a Missouri corporation engaged in the manufacture and distrib- ution of molded fiberglass products at its plant located in Independence, Missouri. In the course and conduct of its business, Respondent annually sells and distributes products valued in excess of $50,000 directly to customers located outside the State of Missouri. 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 District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. "sole objective" in refusing to bargain was to test the validity of the Certification of Representative But the June 1, 1973, letter to the Union, appended to its answer, states "Your request [to bargain ] is denied we do not believe that the Machinists Union has been properly certified . ." By this clear admission, we find that Respondent has refused to bargain on the grounds that the Board allegedly erred in certifying the Union. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 of the Employer's Independence, Missouri, plant including truckdrivers, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On June 16, 1972, 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 17 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on May 15, 1973, 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 May 22, 1973, 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. As alleged in the complaint and admitted in the answer, as an incident to such request hereof, the Union also requested in said letter of May 22, 1973, that Respondent furnish and supply the Union with certain information necessary and relevant for intelligent collective bargaining, to wit: ( 1) names and addresses of all employees in the bargaining unit with dates of hire, rates of pay, age, and sex; (2) classifications and job descriptions of such employ- ees; (3) a list and description of all fringe benefits and copies of all benefit plans including cost figures; (4) shift schedules and hours of work; (5) method of computing overtime pay, incentive bonuses, profit sharing plans , and pension plans; (6) information and data concerning safety programs and safety regulations ; and (7) copy of all existing plant rules and regulations. Commencing on or about June 1 , 1973, and continuing at all times thereafter to date, the 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 and to supply any of the information or data described above. Accordingly, we find that the Respondent has, since June 1, 1973, 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 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, provide the requested and other necessary and relevant information and data and 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, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, 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. Hemco Corporation is an employer engaged in HEMCO CORPORATION commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 71, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees of the Employer's Independence, Missouri, plant in- cluding truckdrivers, excluding office clerical em- ployees, professional employees, guards, and supervi- sors 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 May 15, 1973, 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 1, 1973, and at all times thereafter, to provide information necessary and relevant for intelligent collective bargaining and to bargain collectively with the above-named labor organization as the exclusive bargaining representa- tive 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 provide information and 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 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, Hemco Corporation, Independence, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to provide information necessary and relevant for intelligent collective bargaining and to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employ- ment with District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: 767 All production and maintenance employees of the Employer's Independence, Missouri, plant including truckdrivers, excluding 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, provide information necessary and relevant for intelligent collective bargaining and 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 understanding is reached, embody such understanding in a signed agreement. (b) Post at its Independence, Missouri, plant copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 17, 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 thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. r 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 District Lodge No. 71, International Association of Machinists 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 interfere with, restrain, or coerce our employees 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, provide information necessary and relevant for intelligent collective bargaining and 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 bar- gaining unit is: All production and maintenance employ- ees of the Employer's Independence, Mis- souri, plant including truckdrivers, excluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. HEMCO CORPORATION (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, 616-Two Gateway Center, Fourth at State, Kansas City, Kansas 64101 , Telephone 816-374-4518.