Eltra Corp.

PRESTOLITE WIRE DIVISION, ELTRA CORPORATION I Prestolite Wire Division, Eltra Corporation and Inter- national Union, United Automobile, Aerospace and Agricultural Workers of America (UAW). Case 7- CA-12848 June 24, 1976 DECISION AND ORDER 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 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: BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on March 17, 1976, by Inter- national Union, United Automobile, Aerospace and Agricultural Workers of America, (UAW), herein called the Union, and duly served on Prestolite Wire Division, Eltra Corporation, herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on March 26, 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 January 30, 1976, following a Board election in Case 7-RC-13057, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; I and that, commenc- ing on or about February 13, 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 9, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 19, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on April 23, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Official notice is taken of the record in the representation proceeding, Case 7-RC-13057, 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 (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 (CA 7 , 1968), Sec 9(d) of the NLRA, as amended 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 and requests a hearing based on certain of its election objections, the closeness of the vote, and the denial of a hearing on its objections which is alleged to be a violation of due process. Counsel for the General Counsel contends in the Motion for Summary Judgment that Respondent is attempting to relitigate issues which were litigated in the representation case. We agree. Review of the record, including the representation proceeding in Case 7-RC-13057, shows that, pur- suant to a Stipulation for Certification Upon Con- sent Election, an election was held on July 3, 1975, which the Union won, 59 to 55, with no challenged ballots. Respondent filed timely objections in sub- stance alleging (a) that the Union had engaged in improper conduct by (1) an election-day threat of bodily violence toward employees who did not vote for the Union; (2) misrepresentations regarding monthly bonus payments; (3) coercion regarding the signing of authorization cards; (4) compensation of union organizers beyond expenses undisclosed to employees; and (5) misrepresentations concerning insurance fringe benefits negotiated by the Union at another facility of the Respondent; and (b) that there was improper conduct of the election by the Board agent who allowed (1) employees to congregate around the ballot box thus obscuring it from the view of the agent and observers; (2) employees who were union organizers to make excessive noise in the line near the voting booth; and (3) an employee who had voted to speak with a union observer in view of em- ployees waiting to vote. After an investigation the Regional Director issued his Report and Recommen- dations on Objections on September 11, 1975, in which he recommended that the Respondent's objec- tions be overruled in their entirety and the Union certified. With respect to union conduct he found that (1) the alleged election-day threat was isolated; (2) even if the statements about bonus statements were misrepresentations, Respondent had presented a detailed rebuttal; (3) the authorization card coer- 225 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cion was prepetition conduct; (4) the alleged com- pensation of union organizers was not improper elec- tioneering; and (5) the misrepresentation concerning the negotiation of insurance fringe benefits by the Union at another facility of the Respondent was slight. With respect to the Board agent's conduct, he found that the need for the agent and observers to reposition themselves during the course of the voting to observe the ballot box was not unusual and that laboratory conditions were not impaired by the amount and volume of conversation in the voting line nor by the conversation between one employee and the union observer. Respondent filed timely ex- ceptions to the Regional Director's report and a brief in support contending that the election should be set aside in view of the closeness of the vote and the objections relating to the election-day threat, the mis- representations, and the Board agent's conduct of the election. Alternatively Respondent requested a hear- ing on those objections. On January 30, 1976, the Board issued its Decision and Certification of Repre- sentative in which, after considering the Regional Director's report, the exceptions and brief, and the entire record, it adopted the Regional Director's re- port and certified the Union. The Board specifically stated that, while it did not condone the noisy and somewhat disruptive manner in which the election was conducted, Respondent's exceptions relating thereto raised no issue warranting reversal of the Re- gional Director's findings and recommendations. In this proceeding Respondent argues that the cer- tification is void ab initlo for the reasons set forth in its exceptions to the Board, including the closeness of the election. It thus appears that Respondent is at- tempting to relitigate issues raised and resolved in the representation case. In addition, Respondent con- tends that the certification is void ab initio because the failure to grant a hearing on its objections was a denial of due process. We find no merit in this con- tention. In adopting the Regional Director's recom- mendation that Respondent's objections be over- ruled in their entirety, the Board necessarily found that there were no substantial or material issues war- ranting a hearing.' It is well established that parties do not have an absolute right to a hearing and the denial of a hearing where the objections raise no sub- stantial or material issues does not constitute a denial of due process.' We likewise find no merit in Respondent's request for a hearing in this proceeding as evidentiary hearings are not required in unfair la- bor practice cases and summary judgment is appro- priate where, as here, there are no properly litigable issues of fact to be resolved 4 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 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, Prestolite Wire Division , Eltra Cor- poration, a New York corporation , is engaged in the manufacture of automotive wiring at its facility lo- cated in Rose City, Michigan . During the calendar year ending December 31, 1975, Respondent shipped products manufactured at its Rose City, Michigan, plant valued in excess of $50,000 to points located outside the State of Michigan. 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. 11. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space and Agricultural Workers of America, (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 2 Pointe Enterprises, Inc, 223 NLRB 822 (1976) ° Locust Industries, Inc, 221 NLRB 604 (1975), Janler Plastic Mold Corpo- 3 GTE Lenkurl, Incorporated, 218 NLRB 929 (1975), Heavenly Valley Ski ration, 191 NLRB 162 (1971) Area, a California Corporation, and Heavenly Valley, a Partnership, 215 5 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162 (1941), NLRB 734 (1974) Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) PRESTOLITE WIRE DIVISION, ELTRA CORPORATION 3 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: 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. All production and maintenance employees employed by the Employer at its facility located at Rose City, Michigan; but excluding all office clerical employees, plant clerical employees, technical employees, professional employees, confidential employees, foremen, assistant fore- men, guards and supervisors as defined in the Act. 2. The certification On July 3, 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 7, 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 30, 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 February 4, 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 13, 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 13, 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. 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. Prestolite Wire Division, Eltra Corporation, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aero- space and Agricultural Workers of America, (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by the Employer at its facility located at Rose City, Michigan ; but excluding all office clerical em- ployees, plant clerical employees, technical employ- ees, professional employees, confidential employees, foremen , assistant foremen, guards and supervisors as defined in the Act, constitute a unit appropriate 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 30, 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 13, 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, Pres- tolite Wire Division, Eltra Corporation, Rose City, Michigan, 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 Workers of America, (UAW), as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All production and maintenance employees employed by the Employer at its facility located at Rose City, Michigan; but excluding all office clerical employees, plant clerical employees, technical employees, professional employees, confidential employees, foremen, assistant fore- men, 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 Rose City, Michigan, facility, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 Inter- national Union, United Automobile, Aerospace and Agricultural Workers of America, (UAW), 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 PRESTOLITE WIRE DIVISION , ELTRA CORPORATION 5 reached, embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees employed by the Employer at its facility locat- ed at Rose City, Michigan ; but excluding all office clerical employees , plant clerical em- ployees, technical employees, professional employees, confidential employees, foremen, assistant foremen, guards and supervisors as defined in the Act. PRESTOLITE WIRE DIVISION, ELTRA CORPORATION