El Monte Tool and Die Casting

EL MONTE TOOL AND DIE CASTING El Monte Tool and Die Casting, Inc. and Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO. Case 21-CA-15683 September 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on May 2, 1977, by Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO, herein called the Union, and duly served on El Monte Tool and Die Casting, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on May 6, 1977, 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 and 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 15, 1977, following a Board election in Case 21-RC- 14876, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' 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 17, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 28, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 11, 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. 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 Official notice is taken of the record in the representation proceeding, Case 21-RC-14876, 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 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 26 232 NLRB No. 27 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 answer to the complaint and in its response to the General Counsel's motion for Summary Judg- ment, Respondent denies that the Union represents a majority of its employees in an appropriate unit. It also denies the validity of the Union's certification on the grounds that the Union made improper misrepresentations which interfered with the conduct of the election. Moreover, it contends that the Board erred in retroactively applying the standards enunci- ated in Shopping Kart Food Market, Inc.,2 to the conduct of the election rather than the then existing Hollywood Ceramics Company, Inc.,3 election stan- dards. Thus it seeks reconsideration of its objections to the election in light of the Hollywood Ceramics standards. Counsel for the General Counsel, on the other hand, argues that there are no litigable issues warranting a hearing because all issues concerning the Union's certification in an appropriate unit have been fully litigated and determined in the underlying representation case. We agree with the General Counsel. A review of the record herein, including that in representation Case 21-RC-14876, discloses that, after a hearing, the Regional Director for Region 21 issued on December 23, 1976, a Decision and Direction of Election in the unit found appropriate which excluded, inter alia, eight leadmen whom he found to be supervisors within the meaning of Section 2(11) of the Act. Respondent timely filed a request for review of the Regional Director's Deci- sion, contending that the eight leadmen were not supervisors and should be included in the unit. By wire dated January 18, 1977, the Board denied the Employer's request for review on the ground that it raised no substantial issues warranting review. Thereafter, in the election conducted on January 21, 1977, the Union prevailed by a vote of 43 to 35, with 3 ballots challenged. Following the election, Respon- dent filed timely objections to the election alleging that the Union made material misrepresentations concerning Respondent's medical plan for employees and in asserting that Respondent in the past made reductions in wages. Respondent also alleged that the Union implicitly promised that employees would automatically receive wage increases if the Union (C.A. 5. 196%9); Intertype Co. v. Penelo, 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. as amended. 2 228 NLRB 131 1(1977). 3 140 NLRB 221 (1962). 267 DECISIONS OF NATIONAL LABOR RELATIONS BOARD won the election, and that it improperly promised to waive initiation fees for those employees who voted for the Union. After an investigation, during which both parties were afforded the opportunity to present evidence, the Regional Director issued a Supplemen- tal Decision and Certification of Representative on March 15, 1977, overruling all of the objections4 and certifying the Union. Respondent filed a timely request for review of the Regional Director's Supplemental Decision, alleging that the Regional Director made clearly erroneous factual findings departing from precedent, thus raising a substantial question of law or policy. It further contended that the Regional Director's reliance on Hollywood Ceramics in support of his conclusions concerning the alleged misrepresenta- tions was misplaced and further argued that the Board should either eliminate or modify the Holly- wood Ceramics rule. By a wire dated April 27, 1977, the Board denied Respondent's request for review on the grounds that it raised no substantial issues warranting review, relying on its recent decision in Shopping Kart. Chairman Fanning, while adhering to his dissent in Shopping Kart, nonetheless joined in denying review on the ground that the conduct alleged did not violate Hollywood Ceramics stan- dards. 5 In the instant proceeding, Respondent is attempt- ing once more to raise matters which were fully litigated in the underlying representation case. This it may not do. 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.6 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, 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: 4 The Regional Director found that the alleged misrepresentations were not objectionable under Hollywood Ceramics, supra, and that there was no unlawful waiver of initiation fees under the Supreme Court's decision in N.L.R.B, v. Savair Manufacturing Co., 414 U.S. 270(1973). - Respondent's contention in its opposition to General Counsel's Motion FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation located in El Monte, California, and is engaged in die casting and in the production of metal products. Annually, it sells and ships goods valued in excess of $50,000 to customers located within the State of California, each of which in turn annually sells and ships goods valued in excess of $50,000 directly to customers located outside the State of California. 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 Sheet Metal Workers' International Association, Local Union No. 170, AFLCIO, is a labor organiza- 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, shipping and receiving employees, lead persons, and truckdrivers employed by the Employer at its facility located at 2425 North Tyler Avenue, El Monte, California; excluding all office clerical employees, guards, professional employees, fore- persons, and supervisors as defined in the Act, as amended. 2. The certification On January 21, 1977, 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 15, 1977, and the Union for Summary Judgment that the Hollywood Ceramics, and not the Shopping Karl, standard is applicable is without ment. 6 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(0f and 102.69(c). 268 EL MONTE TOOL AND DIE CASTING 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 22, 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 I. El Monte Tool and Die Casting, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers' International Associa- tion, Local Union No. 170, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, shipping and receiving employees, lead persons, and truckdrivers employed by the Employer at its facility located at 2425 North Tyler Avenue, El Monte, California; excluding all office clerical employees, guards, professional employees, fore- persons, and supervisors as defined in the Act, as amended. 4. Since March 15, 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 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 the Respondent, 269 DECISIONS OF NATIONAL LABOR RELATIONS BOARD El Monte Tool and Die Casting, Inc., El Monte, California, its officers, agents, successors, and as- signs, 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 Sheet Metal Work- ers' International Association, Local Union No. 170, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees, lead persons, and truckdrivers employed by the Employer at its facility located at 2425 North Tyler Avenue, El Monte, California; excluding all office clerical employees, guards, professional employees, fore- persons, and supervisors as defined in the Act, as amended. (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 2425 North Tyler Avenue, El Monte, California, facility copies of the attached notice marked "Appendix."7 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. (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. 7 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 Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO, 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 employ- ees, shipping and receiving employees, lead persons, and truckdrivers employed by the Employer at its facility located at 2425 North Tyler Avenue, El Monte, California; excluding all office clerical employees, guards, professional employees, forepersons, and supervisors as defined in the Act, as amended. EL MONTE TOOL AND DIE CASTING, INC. 270