General Tire & Rubber Co.

GENERAL TIRE & RUBBER CO. General Tire & Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case 11-CA-6209 February 4, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO . Upon a charge filed on August 4, 1975, by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, and duly served on General Tire & Rubber Company, herein called the Respondent, the Acting General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for Region 11, issued a complaint on Octo- ber 16, 1975, against Respondent , alleging that Re- spondent 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 hear- ing 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 July 9, 1975, fol- lowing a Board election in Case 11-RC-4004 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 October 7, 1,975, 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 28, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 13, 1975, counsel for the , General Counsel filed directly, with the Board a Motion for Summary Judgment, and a memorandum in support thereof with exhibits attached. Subsequently, on No- vember 25 , 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. Respon- ' Official notice is taken of the record in the representation proceeding, Case l 1-RC-4004, as the term "record" is defined in Sees.' 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); 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. 723 dent thereafter filed a response to Notice To Show Cause and an amended answer to the complaint. 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 response to the Notice To Show Cause Respondent in substance attacks the Union's certifi- cation on the basis of its objections to the election in the underlying representation case and requests either a hearing on its objections or Summary Judg- ment in its favor. The General Counsel contends that Respondent is attempting to relitigate matters con- sidered and disposed of in the prior representation proceedings and this it may not do. We agree. Review of the record herein, including that in Case 11-RC-4004, establishes that, pursuant to a Stipula- tion for Certification Upon Consent Election, an election was held on April 24, 1975. The tally of bal- lots showed 13 votes were cast for the Union, 11 against, and 4 challenged ballots. Thereafter, Re- spondent filed timely objections to conduct affecting the results of the election contending in substance that a letter mailed by the Union to employees mis- represented the wage structure negotiated by the Union at another company. ,After investigation, the Acting Regional Director on May 21, 1975, issued his Report on Objections and Challenges finding that the Union's statement was, an "imprecise expression" and not a misrepresentation under Hollywood Ceram- ics Company, Inc., 140 NLRB 221 (1962), recom- mending that Respondent's objections be overruled, that the challenges be sustained as was agreed by both parties, and that the Union be certified. Re- spondent filed exceptions to the report and a brief basically reiterating its objections and alternatively requesting a hearing. After reviewing the record in light of the exceptions and brief, the Board on July 9, 1975, issued its Decision and Certification of Repre- sentative in which it adopted the recommendations of the Acting Regional Director and certified the Union. Respondent filed a motion for reconsidera- tion and brief in support thereof objecting to the Board's adoption of the Acting Regional Director's finding that the union statement was an "imprecise expression" and not a misrepresentation and con- tending that the Board decision is contrary to ex- isting precedent. On September 2, 1975, the Board denied Respondent's motion as lacking in merit. 222 NLRB No. 115 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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- ered or previously unavailable evidence, nor does it allege that any special circumstances 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, deny Respondent's request for Summary Judgment and grant the General Counsel's Motion for Summa- ry Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT tion 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All quality control inspectors and lab techni- cians employed at the Respondent's Charlotte, North Carolina, plant located at 1100 Continen- tal Blvd., in the Arrowood Industrial Park, ex- cluding all production and maintenance em- ployees, janitors, maintenance laborers, office clerical employees, professional employees, pro- duction control employees, setup men, inspec- tors, checkers, all other job classifications pres- ently paid on a salary basis, guards, and supervisors as defined in the Act. 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation engaged in the manufacture of rubber tires at its Charlotte, North Carolina, plant, the only facility involved in these proceedings. During the past 12 months, a represen- tative period, Respondent manufactured, sold, and shipped from its North Carolina facility products valued in excess of $50,000 to points directly outside the State of North -Carolina and purchased from points directly outside the State of North Carolina materials valued in excess, of $50,000. 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 United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organiza- 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) 3 As to Respondent's request for a hearing on these issues, we note that the Respondent has made such a request in the representation proceeding and that it was not granted. Further, it is established that no hearing is required where, as here, there are no properly litigable issues of fact to be resolved Locust Industries, Inc, 221 NLRB No. 85 (1975), Janler Plastic Mold Corporation, 191 NLRB 162 (1971). 2. The certification On April 24, 1975, 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 11, 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 July 9, 1975 , 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 September 9, 1975, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 7, 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. Accordingly, we find that the Respondent has, since October 7, 1975, and at all times thereafter, refused 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- GENERAL TIRE & RUBBER CO. tices 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, 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. General Tire & Rubber Company is an employ- er engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All quality control inspectors and lab techni- cians employed at the Respondent's Charlotte, North Carolina, plant located at 1100 Continental Blvd., in the Arrowood Industrial Park, excluding all produc- tion and maintenance employees, janitors, mainte- nance laborers, office clerical employees, profession- al employees, production control employees, setup 725 men, inspectors, checkers, all other job classifications presently paid on a salary basis, 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 July 9, 1975, the above-named labor orga- nization has been and now is the certified and exclu- sive representative of all employees in the aforesaid 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 October 7, 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, Respondent has en- gaged 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 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, Gener- al Tire & Rubber Company, Charlotte, North Caroli- na, 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 United Rubber, Cork, Linoleum and Plastic Workers of America, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All quality control inspectors and lab techni- cians employed at the Respondent's Charlotte, North Carolina, plant located at 1100 Continen- tal Blvd., in the Arrowood Industrial Park, ex- cluding all production and maintenance em- ployees, janitors, maintenance laborers, office clerical employees, professional employees, pro- duction control employees, setup men, inspec- tors, checkers, all other job classifications pres- ently paid on a salary basis, guards, and supervisors as defined in the Act. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 Charlotte, North Carolina, plant, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 11, 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4In 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 Unit- ed Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive repre- sentative 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 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 quality control inspectors and lab techni- cians employed at the Respondent's Char- lotte, North Carolina, plant located at 1100 Continental Blvd., in the Arrowood Industrial Park, excluding all production and mainte- nance employees, janitors, maintenance la- borers, office clerical employees, professional employees, production control employees, set- up men, inspectors, checkers, all other job classifications presently paid on a salary basis, guards, and supervisors as defined in the Act. GENERAL TIRE & RUBBER COMPANY