Arvin Systems, Inc.

DIAMOND ELECTRONICS DIV 203 Diamond Electronics Division of Arvin Systems, Inc. and United Steelworkers of America , AFL-CIO- CLC. Case 9-CA-10041 June 25, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO opposition to the General Counsel's motion and in support of Respondent's contending that there is no genuine issue of material fact. 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: Upon a charge filed on February 10, 1976, by United Steelworkers of America, AFL-CIO-CLC, herein called the Union, and duly served on Dia- mond Electronics Division of Arvin Systems, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 9, issued a complaint and Notice of Hearing on March 30, 1976, against Re- spondent, 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, complaint, and notice of hearing before an Adminis- trative 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 December 16, 1975, following a Board election in Case 9-RC- 11025, 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 January 23, 1976, 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 April 12, 1976, Respondent filed its an- swer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 29, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on May 4, 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 cross-motion for summary judgment and affidavit in 'Official notice is taken of the record in the representation proceeding, Case 9-RC-I 1025, 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 Elecirosystems, Inc, 166 NLRB 938 (1967), enfd 338 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, as amended Ruling on the Motion for Summary Judgment In its answer to the complaint, cross-motion for summary judgment, brief, and affidavit, the Respon- dent, in substance, denies the validity of the election and certification based on certain of its election ob- jections alleging union misrepresentation. Counsel for the General Counsel in his Motion for Summary Judgment contends in effect that there are no issues raised by Respondent herein which were not resolved in the underlying representation proceeding and that summary judgment is appropriate. We agree. Review of the record, including that in the repre- sentation proceedings Case 9-RC-11025, shows that, pursuant to a Stipulation for Certification Upon Consent Election, an election was held on June 10, 1975, which the Union won. Respondent filed timely objections alleging (1) telephone threats of physical harm made by union agents to employees, and (2) material misrepresentations in a union letter distrib- uted to employees over the weekend before the Tues- day election. Respondent objected to statements in the letter that (a) the Union had negotiated with a nearby company a first-year wage increase of 70 cents per hour when only 50 cents per hour was ne- gotiated, and (b) the Union represented employees of seven divisions of Respondent's parent company when three of these were unrelated to Respondent's parent or any of its subsidiaries. Respondent further contended that it could not respond to these state- ments because of time and lack of familiarity with the corporate makeup of its parent company due to the fact that Respondent was a newly acquired divi- sion. On September 16, 1975, after an investigation, the Acting Regional Director issued his report on ob- jections recommending that the Board overrule the objections in their entirety and certify the Union. Specifically, with respect to the misrepresentations, he found that, while the statements were inaccurate, (a) the statement regarding the first-year wage in- crease, in the context of the large overall increase the Union had negotiated, was not that substantial a de- parture from the truth as to have a significant impact on the election, and (b) the statement as to the extent of the Union's representation of the plants of 225 NLRB No. 27 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's parent was not sufficiently material to warrant a hearing or setting aside the election and, further, had not been corrected by Respondent at an employee meeting held just prior to the 24-hour peri- od, although Respondent had had sufficient time to obtain easily ascertainable information to rebut this statement. Respondent filed timely exceptions to the overruling of its misrepresentation objections and a brief in support and sought a hearing or, alternative- ly, a second election. On December 16, 1975, the Board issued its Decision and Certification of Repre- sentative in which, after reviewing the record in light of the exceptions and brief, the Board adopted the Acting Regional Director's findings and recommen- dations and certified the Union. It thus appears that Respondent seeks herein to relitigate issues which were considered and resolved in the underlying rep- resentation 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.' 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, grant the General Counsel's Motion for Summary Judgment, and deny Respondent's cross-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 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 assertiuris- diction herein. II THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO-CLC, is a labor organization 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 production and maintenance employees of the Respondent at its Carroll, Ohio, plant, in- cluding janitors, truckdrivers, quality control employees, manufacturing processors, drafts- men, and regular part-time employees, but ex- cluding all field service technicians, engineering laboratory technicians, office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On June 10, 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 9, 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 December 16, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. Respondent is an Ohio corporation engaged in the manufacture of industrial cameras and TV screens at its plant in Carroll, Ohio. During the past calendar year, a representative period, the Respondent sold products valued in excess of $50,000 and caused them to be shipped directly to customers located out- side the State of Ohio. 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) b. The Request To Bargain and Respondent's Refusal Commencing on or about January 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. Commencing on or about January 23, 1975, and continuing at all times thereafter to date, the Respondent has refused, DIAMOND ELECTRONICS DIV. 205 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 January 23, 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- 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 1, 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. Diamond Electronics Division of Arvin Sys- tems, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America , AFL-CIO- CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent at its Carroll, Ohio, plant, including janitors, truckdrivers, quality control employees, manufacturing processors, draftsmen, and regular part-time employees, but excluding all field service technicians, engineering laboratory technicians, of- fice clerical employees, professional employees, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 16, 1975, the above-named la- bor 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 January 23, 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board hereby orders that Respondent, Dia- mond Electronics Division of Arvin Systems, Inc., Carroll, Ohio, 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 con- ditions of employment with United Steelworkers of America, AFL-CIO-CLC, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All production and maintenance employees of the Respondent at its Carroll , Ohio, plant, in- cluding janitors , truckdrivers , quality control 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, manufacturing processors, drafts- men, and regular part-time employees, but ex- cluding all field service technicians, engineering laboratory technicians, 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 Carroll, Ohio, plant, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 Unit- ed Steelworkers of America, AFL-CIO-CLC, 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 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 production and maintenance employees of the Respondent at its Carroll, Ohio, plant, including janitors, truckdrivers, quality con- trol employees, manufacturing processors, draftsmen, and regular part-time employees, but excluding all field service technicians, en- gineering laboratory technicians, office cleri- cal employees, professional employees, guards and supervisors as defined in the Act. DIAMOND ELECTRONICS DIVISION OF ARVIN SYSTEMS, INC.