Lake Odessa Machine Products, Inc.

1P DECISIONS OF NATIONAL LABOR RELATIONS BOARD take Odessa Machine Products, Inc., a Wholly- Owned Subsidiary of Sparton Corporation and International Union, Allied Industrial Workers of America, AFL-CIO. Case 7-CA-10696 April 17, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on November 1, 1973, by International Union, Allied Industrial Workers of America, AFL-CIO, herein called the Union, and duly served on Lake Odessa Machine Products, Inc., a wholly-owned subsidiary of Sparton Corporation, herein called the Respondent , the General Counsel of the National Labor Relations Board, by the oval Director for Region 7, issued a complaint on November 13, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in gnfair labor practices affecting commerce within the meaning of Section 8(aX5) 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 gpmplaint alleges in substance that on October 4, 1973, following a Board election in Case 1-RC-11408 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees, in,the unit ! foundappropriate; I and that, commencing on or about October 29, 1973, 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 21, 1973, Repondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 3, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 10, 973, 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 to Notice To Show I Of d fictal notice is taken of the record in the representation proceeding, Case 7-RC-11408, 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 Ekctrosystemr, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); Gatdta Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); S.tafype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 110 NLRB No. 13 Cause, entitled Statement and Motions in Opposition to General Counsel's Summary Judgment Motion. 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 its response to the Notice To Show Cause, Respondent contends that the certification of the Union was improper in that the Board erred in failing to sustain, or to conduct a hearing upon, certain of its objections in the second election herein. Our review of the record indicates that pursuant to a Stipulation for Certification Upon Consent Elec- tion, the first election was conducted on November 1, 1972. The tally of ballots indicated that 25 valid ballots were cast for, and 49 against, the Union, and 4 ballots were challenged. The Union filed timely objections and, after a hearing, a Hearing Officer recommended that the election be set aside and a new one conducted. No exceptions were filed and, on February 7, 1973, the Board issued its Decision, Order, and Direction of Second Election in which it adopted the Hearing Officer's recommendations. The second election was conducted on March 5, 1973, and the tally of ballots indicated that of 78 eligible voters 52 cast valid ballots for, and 22 against, the Union. The Respondent then filed seven timely objections. The Regional Director, after an investigation, on April 26, 1973, issued his report on objections in which he recommended that they be overruled in their entirety. Respondent then filed exceptions and a supporting brief concerning certain of the objections2 in which, inter alia, it requested a hearing. However, on October 4, 1973, the Board issued its Decision and Certification of Representa- tive3 in which it found that the exceptions raised no material or substantial issues of fact or law which would justify reversing the Regional Director's findings or require a hearing, and, accordingly, adopted the Regional Director's findings, conclu- sions, and recommendations and certified the Union. Respondent now contends (a) that, inasmuch as its objections raised substantial and material issues of fact, the Board should reconsider its decision in the representation case or reopen the record therein, and NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 2 Objections 2, 3, 4, and 6 alleged that the Union had distributed documents containing substantial misrepresentations of material tact and had made false statements, thereby misusing Board processes, all at a time when Respondent was unable to make effective answers. 3 206 NLRB No. 73. LAKE ODESSA MACHINE (b) that the Board should articulate its rationale in the case. As to (a), the Board specifically found in its Decision and Certification of Representative that Respondent's exceptions raised no substantial and material issues which would require a hearing. Further, Respondent's answer to the complaint and response to the Notice To Show Cause fail to demonstrate extraordinary circumstances warranting reconsideration under Section 102.65(e) of the Board's Rules and Regulations, and in fact appear to raise nothing not previously considered. As to (b), the Regional Director's articulation of his rationale, which the Board adopted as its own , was adequate.4 It accordingly appears that Respondent has raised no issue that it did not, or could not, have raised in the representation proceeding. 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. Respondent also contends that the Board should remand the unfair labor practice case for hearing because (a) otherwise the Board and reviewing courts will be denied a complete record, and (b) Respon- dent has a right to a hearing in unfair labor practice cases under the Act and the Board's Rules and Regulations. As to (a), the Board's Decision and Certification of Representative finding no merit in the Respondent's exceptions necessarily ruled that a complete record for all purposes, including that of judicial review, has been developed. As to (b), it is now well established that, where no substantial issues of fact and law are presented, neither our Act nor our Rules and Regulations require a hearing in the subsequent unfair labor practice proceeding.6 As we have found merit in none of Respondent's contentions, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board nukes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Lake Odessa Machine Products, Inc., a wholly-owned subsidiary of the Sparton Corpora. tion, is, and has been at all times material herein, a Michigan corporation. At all times material herein, Respondent has maintained its principal office and place of business at 1201 N. Fourth Avenue, in the city of Lake Odessa, and State of Michigan, the only facility involved in this proceeding, and has been at all times material herein engaged in the manufacture of metal stampings, wire products, and related products. During the year ending December 1972, which period is representative of its operations, Respondent in the course and conduct of its business operations (a) purchased and caused to be transported and delivered at its Lake Odessa, Michigan, place of business goods and materials valued in excess of $750,000, of which goods and materials valued in excess of $750,000 were transported and delivered to its place of business in Lake Odessa, Michigan, directly from points located outside the State of Michigan, and (b) sold and distributed products valued in excess of $500,000, of which products valued in excess of $500,000 were shipped from said place of business directly to points located outside of 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. II. THE LABOR ORGANIZATION INVOLVED International Union, Allied Industrial Workers of America, 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 constitute a unit appropriate for collective-bargain- * The Board has held that no greater articulation - of its rationale is required of it. Chaves Virginia Corporation, a Wholly Owned Subsidiary of BCC Industries, Inc, 206 NLRB No. 122. 5 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). 6 See cases cited in fn. 3 of Chayes Virginia Corporation, A Wholly Owwd Subsidiary of BCC Industries, Inc., supra 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including all shipping and receiving employees employed by the Employer at its facility located at 1201 Fourth Avenue, Lake Odessa, Michigan; but excluding all office clerical employees, profes- sional employees, technical employees, guards, and supervisors as defined in the Act. 2. The certification On March 5, 1973, 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 the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on October 4, 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 October 24, 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. Com- mencing on or about October 29, 1973, and continu- 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 29, 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, 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. Lake Odessa Machine Products, Inc., a wholly- owned subsidiary of Sparton Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including all shipping and receiving employees employed by the Employer at its facility located at 1201 Fourth Avenue, Lake Odessa, Michigan; but excluding all office clerical employees, professional employees, technical employees, guards, and supervi- sors 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 October 4, 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 October 29, 1973, 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. LAKE ODESSA MACHINE 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, Lake Odessa Machine Products, Inc., a wholly- owned subsidiary of Sparton Corporation, Lake Odessa, 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 International Union, Allied Industrial Workers of America, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees, including all shipping and receiving employees employed by the Employer at its facility located at 1201 Fourth Avenue, Lake Odessa, Michigan; but excluding all office clerical employees, profes- sional employees, technical 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, 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 Lake Odessa, Michigan, facility copies of the attached notice marked "Appendix." 7 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- 93 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. T 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, Allied Industrial Workers of America, 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 production and maintenance employ- ees, including all shipping and receiving employees employed by the Employer at its facility located at 1201 Fourth Avenue, Lake Odessa, Michigan ; but excluding all office clerical employees, professional employees, technical employees , guards, and supervisors as defined in the Act. LAKE ODESSA MACHINE PRODUCTS, INC., A WHOLLY-OWNED SUBSIDIARY OF SPARTON CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive ance with its provisions may be directed to the days from the date of posting and must not be Board's Office, 500 Book Building, 1249 Washington aUered, defaced, or covered by any other material. Boulevard, Detroit, Michigan 48226, Telephone Any questions concerning this notice or compli- 313-226-3200.