Bettendorf Stanford Bakery Equipment Co.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bettendorf Stanford Bakery Equipment Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Case 14-CA-9232 June 29, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on April 5, 1976, by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, herein called the Union, and duly served on Bettendorf Stanford Bakery Equipment Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a complaint and notice of hearing on April 16, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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 no- tice of hearing 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 March 2, 1976, following a Board election in Case 14-RC-7988, 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 March 31, 1976, 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 April 20, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 28, 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 Official notice is taken of the record in the representation proceeding, Case 14-RC-7988, 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 Electrosysten s, 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, as amended 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 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 response to the Notice To Show Cause, Respondent denies the valid- ity of the certification based on its election objections in the underlying representation case and its conten- tion that it was denied due process by denial of an evidentiary hearing thereon, rejection of proffered evidence and witnesses, and refusal of its offer of proof. In the Motion for Summary Judgment, coun- sel for the General Counsel alleges that there are no issues of fact warranting a hearing. We agree. Review of the record, including that in the repre- sentation proceedings, Case 14-RC-7988, shows that, pursuant to a Stipulation for Certification Upon Consent Election, an election was held on November 7, 1975, which the Union won. On November 13, 1975, Respondent filed timely objections to the elec- tion alleging, in substance, various misrepresenta- tions in three campaign circulars with respect to (1) wage increases and benefits that would result from union representation and Federal assistance to unions, (2) union ability to eliminate Respondent's right to control of business decisions and to protect seniority contractually, and (3) the voluntary nature of union membership. By telegram of November 18, 1975, Respondent named two employees who, on the compulsory unionism objection, would testify that union agents told employees that union membership or dues payment would be a condition of employ- ment. On November 24, 1975, after an investigation and consideration of all evidence submitted with the objections and the parties' statements of position, the Acting Regional Director issued his report on objec- tions in which he recommended that the objections be overruled and the Union certified. In his report he found (1) that the compulsory union membership ob- jection was not timely filed and, in any event, the objection contained neither assertions which employ- ees were unable to evaluate nor threats within the Union's power to carry out, and (2) that the state- ments set forth in the three union leaflets were not material misrepresentations but were permissible campaign propaganda. Respondent filed timely ex- ceptions to the report and a brief in support with attached exhibits, reiterating, in substance, its objec- tions and excepting (1) to the Acting Regional 225 NLRB No. 44 BETTENDORF STANFORD BAKERY EQUIPMENT CO. 285 Director's failure to conduct a proper investigation, (2) to his determinations with respect to the untimely filed telegraphic objection, (3) to the failure to con- sider an offer of proof on compulsory unionism, and (4) to the failure to hold a hearing on the material factual issues raised by the Respondent's objections. On March 2, 1976, the Board issued its Decision and Certification of Representative in which, after con- sidering the objections and the Acting Regional Director's report thereon and after reviewing the rec- ord in light of the exceptions and brief, the Board adopted the Acting Regional Director's findings and recommendations and certified the Union. In this proceeding Respondent contends that the denial of a hearing, the rejection of proffered evi- dence and witnesses, and the refusal of Respondent's offer of proof constituted a denial of due process. We find Respondent's contention lacking in merit. The Acting Regional Director in his report detailed the evidence Respondent offered to present at a hearing and, in effect, considered the merits of its late-filed objection. Further, the Board reviewed and consid- ered the record in light of the exceptions and brief which included Respondent's offer of proof. Finally, with respect to Respondent's hearing contention, the Board, in adopting the Acting Regional Director's report recommending that the objections be over- ruled, in effect found no substantial or material is- sues warranting a hearing.' It is well established that a hearing on objections is not required where, as here, there has been no prima facie showing of sub- stantial and material issues and that, absent arbitrary action, this qualified right to a hearing satisfies due process.' It thus appears that Respondent has not raised any issues which are litigable in this unfair labor practice proceeding. 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.4 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 Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Illinois corporation with its principal of- fice and place of business at P.O. Box 90 in Salem, Illinois, where it is engaged in the manufacture and nonretail sale and distribution of blades for bakery equipment and the reconditioning of bakery equip- ment and related products. Respondent's plant locat- ed at Salem, Illinois, is the only facility involved in this proceeding. During the year ending December 31, 1975, a representative period, Respondent, in the course and conduct of its business operations, manu- factured, sold, and distributed at its Salem, Illinois, plant, products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from said plant to points located outside Illi- nois. 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. 11. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica, 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: 2 Pointe Enterprises, Inc, 223 NLRB 822 (1976) 3 Blackman-Uhler Chemical Division-Synalloy Corporation, 223 NLRB 827 (1976), and cases cited therein 4 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) All production and maintenance employees employed at Respondent's Salem, Illinois, facili- ty, excluding all office clerical and professional 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, guards, and supervisors as defined in the Act. 2. The certification On November 7, 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 14, 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 March 2, 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 March 23, 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 March 31, 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 March 31, 1976, and at all times thereafter, re- fused 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 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Bettendorf Stanford Bakery Equipment Com- pany is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed at Respondent's Salem, Illinois, facility, ex- cluding all office clerical and 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 March 2, 1976, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 ?_ct. 5. By refusing on or about March 31, 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. BETTENDORF STANFORD BAKERY EQUIPMENT CO. 287 7. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER 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 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Bet- tendorf Stanford Bakery Equipment Company, Sa- lem, Illinois, 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 International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All production and maintenance employees employed at Respondent's Salem, Illinois, facili- ty, excluding all office clerical and 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 Salem, Illinois, facility copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 14, 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- 5In 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 Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of Ameri- ca, as the exclusive representative of the employ- ees 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 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 agreement. The bargaining unit is: All production and maintenance employees employed at Respondent's Salem, Illinois, fa- cility, excluding all office clerical and profes- sional employees, guards, and supervisors as defined in the Act. BETTENDORF STANFORD BAKERY EQUIPMENT COMPANY