Data Printer Corp

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Data Printer Corp and Local 1499, International Brotherhood of Electrical Workers, AFL-CIO. Case 1-CA-11413 June 11, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on February 5, 1976, by Local 1499, International Brotherhood of Electrical Work- ers, AFL-CIO, herein called the Union, and duly served on Data Printer Corp, herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on March 4, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 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 rec- ord shows that on January 22, 1976, following a Board election in Case 1-RC-13979 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 February 1, 1976, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so On March 15, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint On March 29, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment Subsequently, on April 12, 1976, 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 'Official notice is taken of the record in the representation proceeding Case 1-RC-13979, 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 (CA 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, as amended 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 to the complaint and opposition to the motion for summary judgment, Respondent de- nies the representative status of the Union based on its election objections and contends that the Board's denial of a hearing was a denial of due process and that it is entitled to a hearing in this proceeding on the issues raised by its objections and in its motion for rehearing Counsel for the General Counsel ar- gues in her motion for summary judgment that Re- spondent does not raise litigable issues requiring a hearing and that summary judgment is appropriate We agree Review of the record herein, including that of the underlying representation proceeding in Case 1-RC- 13979, reveals that, upon a Stipulation for Certifica- tion Upon Consent Election, an election was held on September 26, 1975 The tally showed that the Union won, with 72 votes cast for the Union, 70 against, and no challenged ballots Respondent filed timely objections and a request for a hearing thereon, alleg- ing that the conduct of a free and fair election was precluded by (1) a last-minute misleading union handbill which characterized the wage scale and cer- tain job grading practices as fraudulent, and (2) Board failure to assist voters with language barriers by furnishing language assistance or a bilingual no- tice and ballot On October 31, 1975, the Acting Re- gional Director issued his Report on Objections rec- ommending that the objections be overruled, the hearing request denied, and the Union certified With respect to the first objection, the Acting Re- gional Director found (1) that Respondent had am- ple time to respond to the wage scale issue since the Union had raised the issue of its existence earlier, and (2) that the Union's characterizations of the Respondent's wage scale and job grading practices did not constitute such a substantial departure from the truth as to warrant setting aside the election As to the second objection, the Acting Regional Direc- tor found (1) that at the stipulation conference both Respondent and the Union had advised the Board agent that there was no need for bilingual or multi- lingual notices and ballots, (2) that at the meeting prior to the election Respondent had objected to the Union's request to add a union observer who spoke Italian and Spanish, that, when the Board agent ad- 224 NLRB No 85 DATA PRINTER CORP vised that he was conversant in those languages, the issue was not further pursued, (3) that the Board agent explained the ballot and its purpose to one vot- er in Italian and to another in English whereupon each indicated that he understood the ballot, (4) that there were no void ballots, and (5) that Respondent presented no evidence that any employee failed to understand the ballot and its purpose Subsequently Respondent filed exceptions to the report and a brief in support, basically reiterating its objections, again requesting a hearing, and arguing that the Board should reexamine its approach to furnishing bilingual notices and ballots in light of the 1975 amendments to the Voting Rights Act of 1965 On January 22, 1976, the Board, with Chairman Murphy and Mem- ber Penello each agreeing for separate reasons, issued its Decision and Certification of Representative in which, after reviewing the record in light of the ex- ceptions and brief, the Board adopted the findings and recommendations of the report and certified the Union On January 28, 1976, Respondent filed a motion for rehearing, arguing, for the first time, that, prior to the issuance of the report on objections, it was un- aware that the Board agent had explained the ballot in Italian to one voter and that, since the observers were not fluent in Italian, the failure of the agent to use a challenged ballot deprived Respondent of the opportunity to establish whether the voter who cast this potentially decisive ballot understood it On March 17, 1976, the Board denied the motion as con- taining nothing which the Board had not previously considered It thus appears that Respondent is at- tempting to relitigate in this unfair labor practice proceeding issues considered and resolved in the un- derlying representation case 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 2 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 2 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 683 labor practice proceeding 3 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 and has been at all times material herein, a Delaware corporation with its principal of- fice and place of business at 660 Memorial Drive, Cambridge, Massachusetts, where it is engaged in the manufacture, sale, and distribution of data pro- cessing equipment Respondent in the course and conduct of its business causes, and continuously has caused at all times herein mentioned, large quantities of materials used by it in the manufacture of data processing equipment to be purchased and transport- ed in interstate commerce from and through States other than the Commonwealth of Massachusetts, and caused, and continuously has caused, substantial quantities of data processing equipment to be sold and transported from its Cambridge, Massachusetts, location in interstate commerce to States other than Massachusetts Respondent annually receives direct- ly at its Cambridge, Massachusetts, location from points outside the Commonwealth of Massachusetts and annually ships directly from said location to points outside the Commonwealth of Massachusetts goods and 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 assertjuris- diction herein II THE LABOR ORGANIZATION INVOLVED Local 1499, International Brotherhood of Electri- cal Workers, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act 3 In this proceeding Respondent asserts that the Board 's failure to grant its hearing requests was a denial of due process and that it is entitled to a hearing in this proceeding on the issues raised by its objections and in its motion for rehearing By its adoption of the Acting Regional Director's report including his denial of a hearing and its denial of the Respondents motion for rehearing, the Board, in effect, found that there were no substan- tial and material issues requiring a hearing It is well established that, absent a prima facie showing of substantial and material issues , a party does not have an absolute right to a hearing on objections and that where, as here there are no properly litigable issues of fact to be resolved , a hearing is not required in an unfair labor practice proceeding Federal Electric Corporation, 223 NLRB 161 (1976), Handy Hardware Wholesale, Inc, 222 NLRB 373 (1976) 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 full-time and regular part-time production and maintenance employees of the Employer lo- cated at its 600 Memorial Drive, Cambridge, Massachusetts, plant, including lead operators, shipping and receiving employees, inspectors, andjanitors, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act 2 The certification On September 26, 1975, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 1, 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 22, 1976, 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 January 29, 1976, 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 Commencing on or about February 1, 1976, 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 February 1, 1976, 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- 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 (CA 10, 1965) The Board, upon the basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW 1 Data Printer Corp is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act 2 Local 1499, International Brotherhood of Elec- trical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 All full-time and regular part-time production and maintenance employees of the Employer located at its 600 Memorial Drive, Cambridge , Massachu- setts, plant, including lead operators, shipping and receiving employees, inspectors, and janitors, but ex- cluding office clerical employees, professional em- ployees, guards and supervisors as defined in the Act, DATA PRINTER CORP 685 constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act 4 Since January 22, 1976, 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 February 1, 1976, 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 (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 Cambridge, Massachusetts, facility copies of the attached notice marked "Appendix " 4 Copies of said notice, on forms provided by the Re- gional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted Rea- sonable 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 1, 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 " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Data Printer Corp, Cambridge, Massachusetts, 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 Local 1499, Internation- al Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit All full-time and regular part-time production and maintenance employees of the Employer lo- cated at its 600 Memorial Drive, Cambridge, Massachusetts, plant, including lead operators, shipping and receiving employees, inspectors, and janitors, but excluding office clerical em- ployees, professional employees, guards and su- pervisors 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 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 Local 1499, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time production tors, but excluding office clerical employees, maintenance employees of the Employer at its professional employees, guards and supervi- 600 Memorial Drive, Cambridge, Massachu- sors as defined in the Act setts, plant, including lead operators, shipping and receiving employees, inspectors, and rani- DATA PRINTER CORP