Hepa Corp.

HEPA CORPORATION Hepa Corporation and California Teamsters Public, Professional and Medical Employees Union Local No. 911, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 21-CA- 15679 September 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on April 29, 1977, by California Teamsters Public, Professional and Medi- cal Employees Union Local No. 911, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Hepa Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on May 17, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 March 25, 1977, following a Board election in Case 21-RC- 14673, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about April 26, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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 27, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Specifically, Respondent admitted certain of the factual allegations of the complaint but denied that it committed the unfair labor practices alleged. Affir- matively, Respondent asserts that the Board erred in overruling its objections to the election and that the certification of the Union was, therefore, improper and invalid. I Official notice is taken of the record in the representation proceeding, Case 21-RC-14673, as the term "record" is defined in Seecs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 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); Intertvpe Co. v. Penello. 269 F.Supp. 573 (D.C. Va.. 1967); 232 NLRB No. 7 On June 14, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 29, 1977, 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. On July 16, 1977, Respondent filed a response in opposition to Notice To Show Cause why Summary Judgment 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 proceedings 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 admits certain factual allegations of the complaint but attacks the validity of the Union's certification on the grounds that the Board erred in overruling its objections to the election in the underlying representation case. It further asserts that there are factual issues as yet unresolved which require a hearing for proper and complete adjudication. Counsel for the General Counsel, on the other hand, argues that there are no litigable matters warranting a hearing because the issues concerning the Union's certification were litigated and determined in the underlying represen- tation case. We agree with the General Counsel. A review of the record, including that of the representation proceeding, Case 21-RC-14673, indi- cates that the Union won the election conducted on July 30, 1976, pursuant to a Stipulation for Certifica- tion Upon Consent Election. The tally of votes showed that, of 63 valid ballots cast, 48 were for, and 15 against, the Union, with 2 challenged ballots which were insufficient to affect the results of the election. The Employer, Respondent herein, filed timely objections to the election alleging, in sub- stance, that (1) an in-plant organizing committee created an atmosphere of fear and coercion prevent- ing a free election by intimidating and demeaning pro-Employer employees, and that members of this in-plant committee should be deemed to be union agents; (2) employees on the in-plant committee threatened bodily harm to two unit employees who had spoken against the Union; (3) a union represen- tative threatened an employee with police eviction Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 Respondent's request for oral argument is hereby denied as the record and the briefs adequately set forth the positions and contentions of the parties. 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from an organizational meeting because he expressed sentiments against the Union; and (4) material misrepresentations occurred during the election campaign and on election-eve. The Regional Director directed a hearing to resolve the issues raised by the Employer's objections, and on December 3, 1976, the Hearing Officer issued his report and recommendations in which he concluded that all objections should be overruled and the Union certified. Timely exceptions to the Hearing Officer's report were filed by the Employer who contended that the Hearing Officer's findings, conclusions, and recommendations should be re- versed, the election set aside, and a second election directed. On March 25, 1977, the Board, after reviewing the record in the light of the Employer's exceptions, adopted the Hearing Officer's findings and recommendations and certified the Union. 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.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, 4 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 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 I. THE BUSINESS OF RESPONDENT Hepa Corporation is a California corporation engaged in the business of manufacturing high efficiency air filtration products in Anaheim, Califor- nia. During the last 12-month period, it purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. 3 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.60(c). 4 Respondent asserts in its response to the Notice To Show Cause that it has become aware of evidence indicating that at least one member of the in- plant organizing committee was a paid organizer of Teamsters Local 911. Beyond this bare assertion, Respondent has failed to show that through the exercise of due diligence it could not have uncovered this evidence in time to present it in support of its objections at the representation hearing. Thus, it 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. 1I. THE LABOR ORGANIZATION INVOLVED California Teamsters Public, Professional and Medical Employees Union Local No. 911, Interna- tional Brotherhoood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: 5 All production and maintenance employees, shipping and receiving employees, laboratory technicians, plant clerical employees, and lead persons employed by the Employer at its facility located at 3071 Coronado Street, Anaheim, California, but excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On July 30, 1976, 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 21 designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on March 25, 1977, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. does not constitute newly discovered or previously unavailable evidence. Moreover, even if Respondent's above assertion were substantiated, Respondent has failed to show that such paid organizer has engaged in conduct warranting relitigation of the representation proceeding. 5 In its Decision and Certification of Representative dated March 25, 1977, the Board inadvertently failed to list the exclusions from the unit certified. 38 HEPA CORPORATION B. The Request To Bargain and Respondent's Refusal Commencing on or about March 29, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about April 26, 1977, and continuing at all times thereafter to date, 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. Accordingly, we find that Respondent has, since April 26, 1977, 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 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 com- mences 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); 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. Hepa Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. California Teamsters Public, Professional and Medical Employees Union Local No. 911, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, shipping and receivinfg employees, laboratory techni- cians, plant clerical employees, and lead persons employed by the Employer at its facility located at 3071 Coronado Street, Anaheim, California, but excluding all other employees, office clerical employ- ees, professional 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 March 25, 1977, 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 April 26, 1977, 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(aXl) 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 the Respondent, Hepa Corporation, Anaheim, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with California Teamsters Public, Professional and Medical Employees Union Local No. 911, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees, laboratory technicians, plant clerical employees, and lead persons employed by the Employer at its facility located at 3071 Coronado Street, Anaheim, California, but excluding all other employees, office clerical employees, professional 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 3071 Coronado Street, Anaheim, California, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's represen- tative, 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. 6 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." (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Califor- nia Teamsters Public, Professional and Medical Employees Union Local No. 911, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, 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, 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, shipping and receiving employees, laborato- ry technicians, plant clerical employees, and lead persons employed by the Employer at its facility located at 3071 Coronado Street, Anaheim, California, but excluding all other employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. HEPA CORPORATION 40