S & S Product Engineering Services, Inc.

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S & S Product Engineering Services, Inc. and Local 985, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-10595 May 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on September 10, 1973, by Local 985, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on S & S Product Engineering Services, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on October 4, 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 July 31, 1973, following a Board election in Case 7-RC- 11684 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 August 17, 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, although the Union has requested and is requesting it to do so. On October 17, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On October 29, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 5, 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 to Notice To Show i Official notice is taken of the record in the representation proceeding, Case 7-RC-11684 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), 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 Cause entitled "Answer to Notice To Show Cause Why General Counsel's Motion for Summary Judg- ment Should Not Be Granted." 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 response to the Notice To Show Cause, Respondent contends that the Union was not properly certified as the exclusive bargaining representative of the employees, because, by offering to waive initiation fees, it destroyed employee free choice. As a result of this, the Respondent requests a new election. Our review of the record, including Case 7-RC- 11684, reveals an election conducted on June 14, 1973, pursuant to a Stipulation for Certification Upon Consent Election, resulted in a 19-to-10 vote in favor of the Union. Thereafter, Respondent timely filed an election objection alleging in substance that a flyer distributed to employees prior to the election by the Union contained a waiver of initiation fees allegedly prejudicial to the election results under the decision of the United States Court of Appeals for the Sixth Circuit in N. L. R. B. v. Savair Manufacturing Company, 470 F.2d 305 (1972). The Regional Director conducted an investigation of this objec- tion, and on June 27, 1973, issued a Report and Recommendation on Objection in which he recom- mended overruling the objection and certifying the Union. Respondent filed timely exceptions to the Regional Director's report, reasserting his objection to the Board. The Board, after due consideration, issued a Decision and Certification of Representative on July 31, 1973, adopting the Regional Director's findings, conclusions, and recommendations, and certifying the Union. It thus appears that Respondent is attempting to relitigate an issue already adversely determined to it in the underlying representation case.2 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 2 In its answer to the complaint , Respondent neither "admits nor denies" the Union's status as a labor organization A determination was made in the underlying representation case, Case 7-RC-11684, that the Union is a labor organization , and, accordingly, it is not a subject for litigation in the instant unfair labor practice proceeding Cherokee Nitrogen Company, 200 NLRB No 89 (1972) The Respondent's denial is therefore stricken as frivolous 210 NLRB No. 107 S & S PRODUCT ENGINEERING SERVICES, INC. 913 to relitigate issues which were or could have been litigated in a prior representation proceeding.3 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. With respect to Respondent's contention that the waiver of initiation fees was improper, we note that, during the pendency of this proceeding, the Supreme Court has ruled in the Savair case (414 U.S. 270(1973)), holding a waiver of initiation fees conditioned on joining the Union prior to the election to be impermissible. In the instant case, the waiver of initiation fees was offered in a flyer as follows: As with all newly organized plants which vote to have the UAW represent them in collective bargaining, the initiation fee is waived and further, you do not start paying dues, which is two hours pay per month, until you negotiate and approve an agreement. This will apply to all employees presently on the company payroll and eligible to vote on election day. The waiver of initiation fees contained herein is not qualified by being available only to thosejoining the Union prior to the election, but is available to those employees joining after the election. Thus, in accord with the Supreme Court's decision in Savair, supra, we find that such an unconditional waiver of initiation fees by the Union is permissible and would not warrant setting aside the election. Irwindale Division, Lau Industries, 210 NLRB No. 42 (1974). Accordingly, there being no issues properly litiga- ble in this proceeding, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: stampings and related products. During the year ending December 31, 1972, which period is repre- sentative of its operations during all times material hereto, Respondent in the course and conduct of its business operations purchased and caused to be transported and delivered at its Wyandotte, Michi- gan, plant, steel and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transport- ed and delivered to its plant in Wyandotte, Michi- gan, directly from points located outside the State of Michigan. Respondent, during the same period, manufactured, sold, and distributed at its Wyan- dotte, Michigan, plant products valued in excess of $150,000, of which products valued in excess of $50,000 were shipped from said plant 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 Local 985, International Union, United Automo- bile, Aerospace and 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 in- cluding shipping and receiving employees and truckdrivers employed by the Employer at 2246 Third Street, Wyandotte, Michigan; but exclud- ing clerical employees, guards, and supervisors as defined in the Act. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Michigan corporation, with its principal place of business located at 2246 Third Street in the city of Wyandotte, Michigan, is engaged in the manufacture, sale, and distribution of metal 2. The certification On June 14, 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- 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) 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on July 31, 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 August 17, 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 August 17, 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 August 17, 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 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1963), 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 1. S & S Product Engineering Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 985, International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including shipping and receiving employees and truckdrivers employed by the Employer at 2246 Third Street, Wyandotte, Michigan; but excluding clerical employees, guards, and supervisors as de- fined 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 July 31, 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 August 17, 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. 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, S & S Product Engineering Services, Inc., Wyandotte, S & S PRODUCT ENGINEERING SERVICES, INC. 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 Local 985, Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees in- cluding shipping and receiving employees and truckdrivers employed by the Employer at 2246 Third Street, Wyandotte, Michigan; but exclud- ing clerical 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 2246 Third Avenue, Wyandotte, Michigan, location copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7 after being duly signed by Respondent's represent- ative, 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 Respondent 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. 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 913 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 Local 985, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 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 employees including shipping and receiving employees and truckdrivers employed by the Employer at 2246 Third Street, Wyandotte, Michigan; but excluding clerical employees, guards, and supervisors as defined in the Act. S & S PRODUCT ENGINEERING SERVICES, INC. (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.