The Firestone Tire & Rubber Co.

-THE FIRESTONE TIRE &'RUBBER COMPANY 811 The Firestone Tire ' & Rubber Company and Interna- tional Union, United Plant Guard Workers of America (UPGWA). Cases 26-CA-5264 and 26-CA-5302 May 6, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge and amended charge filed on August 21 and September 27, 1974, respectively, in Case 26-CA-5264, and a charge filed on September 20, 1974, in Case 26-CA-5302, by International Union, United Plant Guard Workers of America (UPGWA), herein called the Union, and duly served on The Fire- stone Tire & Rubber Company, herein called the Re- spondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 26 issued an amended consolidated complaint and notice of hearing on January 8, 1975, 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 charges, and amended consolidated 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 consolidated complaint alleges, in substance, that on August 13, 1974, following a Board election in Case 26-RC-4728, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate;2 and that, commencing on or about August 13, 1974, and at all times thereafter, Respondent has refused,' I On January 10, 1975, the Board issued an Order Denying Motion for Summary Judgment filed by the General Counsel on November 4, 1974 In its Order, the Board permitted amendment in certain respects, of the com- plaint, issued by the Regional Director on October 11, 1974. 2 Official notice is taken of the record in the representation proceeding, Case 26-RC-4728, as the term "record" is defined in Secs 102 68 and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended See LFY Electrosysterns, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v Penello, 269 F Supp. 573 (D.C. Va., 1951); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C.A. 7, 1965); See. 9(d) of the NLRA 3 By its answer, the Respondent admits that the Union has requested Respondent to bargain with it with respect to rates of pay, wages, hours, and other terms and conditions of employment for its employees,'but denies that said request commenced on or about April 25, 1974. However, Respondent admits in its answer the allegations of par 11 of the amended consolidated complaint that it refused to recognize and bargain with the Union since on or about April 25, 1974 As the Respondent admits that it refused to bargain with the Union on or about April 25,1974, we find that the Union requested bargaining on that date However, in view of the fact that the Board did not and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representa- tive, although the Union has requested and is request- ing it to do so. Thereafter, Respondent filed its answer to the amended consolidated complaint admitting in part, and denying in part, the allegations in the com- plaint. The Respondent admits all of the factual allega- tions in the amended consolidated complaint, except those paragraphs which relate to the underlying repre- sentation case, 26-RC-4728. On January 27, 1975, counsel for the General Coun- sel filed directly with the Board a Motion for Summary Judgment, with exhibits attached, submitting, in effect, that the Respondent's answer to the amended con- solidated complaint raises no issues which were not previously presented to and decided by the Board in the underlying representation proceeding, and that the Board grant the Motion for Summary Judgment and issue an appropriate remedial Order. Subsequently, on February 13, 1975, the Board issued an order transfer- ring 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 did not file a response to Notice To Show Cause. 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: Ruling on the Motion for Summary Judgment As reflected above, the Respondent's answer admits all of the factual allegations of the amended con- solidated complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective-bargaining representative of the em- ployees described in the amended consolidated com- plaint. The thrust of Respondent's answer attacks the Board's Decision and Certification of Representative issued on August 13, 1974,4 in which the Board, after having considered the Acting Regional Director's re- port, the Respondent's exceptions and memorandum, and 'the entire record, overruled the Respondent's ob- jections to conduct affecting the results of the election; rejected the Acting Regional'Director's recommenda- tions for a hearing; and concluded that Respondent's objections raised no material or substantial questions of fact which would warrant a Board hearing.' Accord- certify the Union until August 13, 1974, we find the Respondent's refusal to bargain commenced as of that date. 4 212 NLRB 852 5 Member Kennedy would have directed a hearing on one objection as recommended by the Acting Regional Director, but would have overruled the Respondent's other objection 217 NLRB No. 115 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, the Union was certified . Thus, the Respondent, by attacking the legal effect or validity of the Decision and Certification of Representative issued by the Board on August 13, 1974, is attempting to relitigate the same issues which it raised and litigated in the prior repre- sentation proceeding, Case 26-RC-4728 . Moreover, it is well established that parties do not have an absolute right to a hearing on objections to an election . It is only when the moving party presents a prima facie showing of "substantial and material issues" which would war- rant setting aside the election that he is entitled to an evidentiary hearing.6 It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements.' 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 repre- sentation proceeding, and the Respondent does not of- fer 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 fmd that the Respondent has not raised any issue which is prop- erly 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 is now, and has been at all times material herein, a corporation doing business in the State of Tennessee with an office and place of business located in La Vergne, Tennessee, where it is engaged in the manufacture of tires. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received at its La Vergne, Tennessee, location products valued in excess of $50,- 000 directly from points located outside the State of Tennessee, and during the same period of time Re- spondent sold and shipped from its La Vergne, Tennes- 6 NL R.B v. Modine Manufacturing Company, 500 F 2d 914 (C A 8, 1974), enfg 203 NLRB 527 (1973) 7 Amalgamated Clothing Workers ofAmerica [Winfield Manufacturing Company, Inc] v N.L R.B., 424 F.2d 818, 828 (C.A.D C., 1970) 8 See Pittsburgh Plate Glass Co. v NL R.B, 313 U S 146, 162 (1941); Rules and Regulations of the Board , Secs 102.67(1) and 102 69(c) see, location products valued in excess of $50,000 di- rectly to points located outside the State of Tennessee. We fmd, on the basis of the foregoing, that Respond- ent 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. II THE LABOR ORGANIZATION INVOLVED International Union, United Plant Guard Workers of America (UPGWA), 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 safety-security inspectors employed by the Respondent at its La Vergne, Tennessee, opera- tion; excluding all other employees, including of- fice clerical and supervisors, as defined in the Act. 2. The certification On April 24 and 25, 1974, a majority of the em- ployees of Respondent in said unit, in a secret ballot election conducted pursuant to a Stipulation for Cer- tification Upon Consent Election under the supervision of the Regional Director for Region 26, designated the Union as their representative for the purpose of collec- tive bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 13, 1974, 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 April 25 , 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about August 13, 1974, 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. THE FIRESTONE TIRE & RUBBER COMPANY 813 Accordingly, we find that the Respondent has, since August 13, 1974, 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, 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 operations de- scribed 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 commerce. 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, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce 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 Com- pany, 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. The Firestone Tire & Rubber Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Plant Guard Work- ers of America (UPGWA), is a labor organization within the meaning of Section 2(5) of the Act. 3. All safety-security inspectors employed by the Re- spondent at its La Vergne, Tennessee, operation; ex- cluding all other employees, including office clerical 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 August 13, 1974, 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 bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 13, 1974, 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 Respond- ent 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The Firestone Tire & Rubber Company, La Vergne, Tennessee, 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, United Plant Guard Workers of America (UPGWA), as the exclu- sive bargaining representative of its employees in the following appropriate unit: All safety-security inspectors employed by the Respondent at its La Vergne, Tennessee, opera- tion; excluding all other employees, including of- fice clerical 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is 814 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD reached, embody such understanding in a signed agree- ment. (b) Post at its La Vergne, Tennessee, location, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 26, after being duly signed by Respon- dent'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, Respondent to insure that said notice are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of, this Order, what steps have been taken to comply herewith. MEMBER KENNEDY, dissenting: For the reasons set forth in my dissenting opinion in The Firestone Tire & Rubber Company, 212 NLRB 852 (1974), I would have directed a hearing to resolve the issues raised by one of the Employer's objections to the election. Since I would not have issued a certification to the Union without first determining the validity of that objection to the election, I find nothing unlawful in Respondent's questioning the validity of the certifi- cation. Accordingly, I would dismiss this complaint in its entirety. 9 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, United Plant Guard Workers of America (UPGWA), as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner inter- fere 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 under- standing in a signed agreement. The bargaining unit is: All safety-security inspectors employed by the Respondent at its La Vergne, Tennessee, operation; excluding all other employees, in- cluding office clerical and supervisors, as de- fined in the Act. THE FIRESTONE TIRE & RUBBER COMPANY