Magnolia Screw Products, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Magnolia Screw Products, Inc. and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW). Case 7-CA-11975 September 15, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on April 30, 1975, by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Magnolia Screw Products, Inc., herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 7, issued a complaint on May 15, 1975, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional 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 com- plaint alleges in substance that on January 17, 1975, following a Board election in Case 7-RC-12649 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 April 18, 1975, and at all times there- after, 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 May 28 and June 3, 1975, respectively, Respondent filed its answer and amended answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. On June 6, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 13, 1975, 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 'Official notice is taken of the record in the representation proceeding. Case 7-RC-12649, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Serves 8, as amended. See LTV Electrosystems, 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, 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A 7, 1968); Sec. 9(d) of the NLRA. should not be granted. Respondent thereafter filed 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 In its answer and amended answer to the com- plaint and in its response to the Notice To Show Cause, the Respondent attacks the Union's represen- tative status and certification on the ground that its objections to the election were improperly overruled without a hearing. Our review of the record herein, including that in Case 7-RC-12469, reveals that in the election con- ducted by the Regional Director on November 8, 1974, 21 votes were cast for, and 17 against, the Union, with 1 ballot challenged. The Respondent filed timely objections alleging, in substance, that the Union (1) offered to waive initiation fees; (2) circu- lated false rumors about employee layoffs and dis- charge; (3) made promises of benefit; (4) coercively interrogated employees; and (5) kept an unlawful surveillance list of employees. After investigation, the Regional Director on January 17, 1975, issued a Sup- plemental Decision on Objections and Certification of Representative in which he overruled the objec- tions in their entirety and certified the Union. There- after, the Respondent filed a timely request for re- view of the Supplemental Decision. It argued that the Regional Director erred in finding that the objections were without merit and in refusing to hold a hearing thereon and it contended that the election should be set aside or alternatively a hearing be held on its ob- jections. On March 13, 1975, the Board denied the Respondent's request for review as it raised no sub- stantial issues warranting review, thereby necessarily finding that no hearing was necessary.' It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- 2 Raub Supply Company, 215 NLRB No. 75 (1974), Big Three Industries, Inc, 214 NLRB No. 104 (1974). J 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) 220 NLRB No. 54 MAGNOLIA SCREW PRODUCTS, INC. 317 ered or previously unavailable evidence, nor does it allege that any special circumstances 4 exist herein which would require the Board to reexamine the de- cision 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. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. All full-time and regular part-time production and maintenance employees, including shipping and receiving employees, quality control em- ployees and truckdrivers employed by the Em- ployer at its 32451 North Avis, Madison Heights, Michigan facility; but excluding all of- fice clerical employees, professional employees, technical employees, guards and supervisors as defined in the act. 1. THE BUSINESS OF THE RESPONDENT Respondent, a Michigan corporation with an of- fice and place of business at 32451 North Avis, Mad- ison Heights, Michigan, is engaged in the manufac- ture, sale, and distribution of screw products and cold head products. During the calendar year ending December 31, 1974, a representative period, the Re- spondent, in the course and conduct of its business operations, manufactured, sold, and distributed at its Madison Heights, Michigan, place of business, prod- ucts valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said place of business directly to points located outside the State of Michigan. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica (UAW), is a labor organization within the mean- ing 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 con- 4 In its response to the Notice To Show Cause, the Respondent contends that there are special circumstances warranting relitigation . We do not agree, as the special circumstances alleged relate to the same matters which were raised, considered, and resolved in the underlying representation case and which the Respondent , in effect, seeks to relitigate in the instant pro- ceeding. 2. The certification On October 11, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector 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 January 17, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. The Union was certified as the collective-bargaining rep- resentative of the employees in said unit on January 17, 1975, and the Union continues to be such exclu- sive 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 14, 1975, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit and to pro- vide it with information concerning employees to fa- cilitate negotiations. Commencing on or about April 18, 1975, 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 provide the re- quested information. Accordingly, we find that the Respondent has, since April 18, 1975, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, inti- mate, 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 mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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); Bur- nett 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. Magnolia Screw Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica (UAW), is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including shipping and receiving employees, quality control employees and truckdrivers employed by the Employer at its 32451 North Avis, Madison Heights, Michigan facility; but excluding all office clerical employees, professional employees, technical 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 January 17, 1975, 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 bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about April 18, 1975, 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 Re- spondent in the appropriate unit and to provide the Union with information concerning employees to fa- cilitate negotiations, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act. 6. By the aforesaid refusal 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 mean- ing 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 Re- lations Board hereby orders that Respondent Mag- nolia Screw Products, Inc., Madison Heights, Michi- gan, 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 con- ditions of employment with International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America (UAW), as the exclu- sive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including shipping and receiving employees, quality control em- ployees and truckdrivers employed by the Em- ployer at its 32451 North Avis, Madison Heights, Michigan facility; but excluding all of- fice clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. (b) Refusing to provide the Union with informa- tion concerning employees to facilitate negotiations. MAGNOLIA SCREW PRODUCTS, INC. (c) 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 such under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Madison Heights, Michigan, facili- ty, copies of the attached notice marked "Appen- dix." S Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be post- ed 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. s 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 319 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, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca (UAW), as the exclusive representative of the employees in the bargaining unit described be- low. 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 NOT refuse to provide the Union with information concerning employees to facilitate negotiations. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees, including shipping and receiving employees, quality control employees and truckdrivers employed by the Employer at its 32451 North Avis, Madison Heights, Michigan facility; but ex- cluding all office clerical employees, profes- sional employees, technical employees, guards and supervisors as defined in the Act. MAGNOLIA SCREW PRODUCTS, INC.