Argus Inc.

ARGUS OPTICS 923 Argus Optics, A Division of Argus, Inc. and Local 985, International Union, United Automobile, Aeros- pace and Agricultural Implement Workers of America, UAW. Case 7-CA-10750 May 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on November 21, 1973, by Local 985, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called the Local Union, and duly served on Argus Optics, A Division of Argus, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and an amended complaint on December 5, 1973, and March 7, 1974, respectively, 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, amended 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 amended complaint alleges in substance that on October 5, 1973, following a Board election in Case 7-RC-11610 the International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, UAW, hereafter called the Union, was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; i and that, commenc- ing on or about November 8, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union and its agent as the exclusive bargaining representa- tive, and to supply pertinent information, although the Union through its authorized agent, the Local Union, has requested and is requesting it to do so. On December 14, 1973, and March 22, 1974, respectively, Respondent filed its answer and amend- ed answer to the complaint and amended complaint admitting in part, and denying in part, the allegations in the complaint. On December 26, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 9, 1974, 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 Cause, entitled "Answer in Opposition to General Counsel's Motion for Summary Judgment." There- after, the General Counsel, on March 7, 1974, issued an amended complaint to which the Respondent filed an Answer to Amended Complaint. On March 22, 1974, the General Counsel filed a statement in support of Motion for Summary Judgment. The Respondent filed a Statement in Opposition thereto. 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 answers to the complaints, response to the Notice To Show Cause, and Opposition Statement Respondent contends that the certification of the Union in Case 7-RC-11610 is invalid in that the Board erred in failing to direct a new election, or hold a hearing on its objections to the election. Respondent also contends that there existed no agency relationship between the Union and the Local Union, and the latter was not authorized to request bargaining and pertinent information on behalf of the Union. Thus, absent proof by the General Counsel of such agency and authorization, there is no obligation on the part of Respondent to bargain with the Union. Review of the record, including Case 7-RC-11610, reveals an election conducted on April 6, 1973, pursuant to a Stipulation for Certification Upon Consent Election, resulting in 55 votes cast in favor of the Union, 47 votes against the Union, with 5 challenged ballots. Respondent filed timely objec- tions to conduct affecting the results of the election, alleging in substance that the Union had misrepre- sented material facts regarding Respondent's finan- cial status and economic benefits gained in the Union's contracts with other employers, coerced employees regarding job security if they did not vote for the Union, and, along with sympathetic employ- ees, threatened other employees to vote in favor of the Union. The Regional Director, following an Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, enfd. 415 F 2d 26 (C.A 5. 1969); Case 7-RC-11610 as the term "record" is defined in Sees 102 68 and Intertype Co v Penello, 269 F Supp 573 (D.C Va, 1967). Follett Corp, 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See NLRB 378, enfd . 397 F.2d 91 (C A 7. 1968): Sec. 9(d) of the NLRA LTV Electrosvrtems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, 1968), 210 NLRB No. 124 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation, issued a Report on Objections on June 15, 1973, in which he recommended that the objections be overruled in their entirety and the Union be certified. Respondent then filed with the Board timely exceptions to the Regional Director's report, reasserting its original objections and adding as an element of union coercion the existence of a racially biased rumor circulating in the plant prior to the election, which allegedly the Regional Director had failed to consider. The Board considered these exceptions, and found they raised no material or substantial issues of fact or law warranting the reversal of the Regional Director's recommendations or requiring a hearing. Accordingly, the Board adopted the findings, conclusions, and recommenda- tions of the Regional Director and certified the Union in its Decision and Certification of Represent- ative of October 5, 1973. 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.2 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 contends that there is no proof of agency or authorization of the Local Union to act for the Union and thus it is not obliged to comply with the Local Union's bargaining request. We find no merit in this contention. The Respondent admits receipt of a letter dated October 19, 1973, in which the Local Union, by its vice president, after adverting to the Union's certification, stated a desire to commence immediate negotiations with Respondent, and requested certain information pertinent thereto. Respondent, by letter of November 8, 1973, ad- dressed to the Local Union's vice president, replied that it was unable to bargain because it did not believe that the election was properly conducted, and that it was refusing to bargain in order to secure judicial review of the election. Respondent thus was refusing to bargain, not due to any claim of faulty request or lack of authority of the Local Union to make the request on behalf of the Union, but because it felt it had sufficient other reasons relating to the conduct of the election. Having accepted the Local Union's authority to make such a request on behalf of the Union, and believing its response to be to the proper union, Respondent is now estopped to assert that the Local Union had no authority to make such a request. Mutual Coal Company, et al., 181 NLRB 564, 567 (1970). We therefore find no merit in this contention. There being no issues of fact or law properly raised in this proceeding, the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, Argus Optics, A Division of Argus, Inc., is a Delaware corporation with a plant located at Ann Arbor, Michigan, where it is engaged in the manufacture of lens elements and assemblies. During the year ending December 31, 1972, which period is representative of its operations during all times material herein, Respondent in the course and conduct of its business operations, manufactured, sold, and distributed at its Ann Arbor, Michigan, plant products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from said plant directly to points located outside 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: 2 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) ARGUS OPTICS 925 All production and unskilled maintenance employees employed by Employer at its facility located at 2601 South States Street, Ann Arbor, Michigan, including truckdrivers and leaders, but excluding all toolroom employees, skilled mainte- nance employees, office clerical employees, pro- fessional employees, technical employees, guards, and supervisors as defined in the Act. 2. The certification On April 6, 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 5, 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 19, 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 and to supply pertinent information regarding the names of unit employees, their present seniority and classifica- tion, wages, hours, and other terms and conditions of employment. Commencing on or about November 8, 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 the pertinent information requested. Accordingly, we find that the Respondent has, since November 8, 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 refused to supply pertinent information requested by it, and that, by such refusal, Respondent 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 to supply it with the pertinent information requested, 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 (1962), 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. Argus Optics, A Division of Argus, 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 unskilled maintenance employees employed by Employer at its facility located at 2601 South States Street , Ann Arbor, Michigan, including truckdrivers and leaders, but excluding all toolroom employees, skilled mainte- nance employees, office clerical employees, profes- sional employees, technical employees, guards, and supervisors 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 5, 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- 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 8, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and supply the pertinent information requested, Respon- dent 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, and to supply pertinent information, Respondent has inter- fered 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, Argus Optics, A Division of Argus, Inc., Ann Arbor, 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 unskilled maintenance employees employed by Employer at its facility located at 2601 South States Street, Ann Arbor, Michigan, including truckdrivers and leaders, but excluding all toolroom employees, skilled mainte- nance employees, office clerical employees, pro- fessional employees, technical employees, guards, and supervisors as defined in the Act, and refusing to provide the Union with pertinent information regarding names of unit employees, their present seniority and classifications, wages, hours, and other terms and conditions of employ- ment. (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, and provide pertinent information regarding names of unit employees, their present seniority and classifications, wages, hours and other terms and conditions of employment. (b) Post at its Ann Arbor, Michigan, plant copies of the attached notice marked "Appendix." 3 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 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 7, 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 Local 895, International Union, United Automobile, Aerospace and 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 provide the Union with pertinent information regarding names of unit employees, their present seniority and classification, wages, hours, and other terms and conditions of employ- ment. ARGUS OPTICS 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 unskilled mainte- nance employees employed by Employer at its facility located at 2601 South States Street, Ann Arbor, Michigan, including truckdrivers and leaders, but excluding all toolroom employees, skilled maintenance employees. office clerical employees, profes- sional employees, technical employees, guards and supervisors as defined in the Act. ARGUS OPTICS, A DIVISION OF ARGUS, INC. (Employer) 927 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.