Detroit Plastic Molding Co.

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Detroit Plastic Molding Co. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7- CA-13556 March 23, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on November 30, 1976, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Detroit Plastic Molding Co., herein called the Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on December 13, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing 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 were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 6, 1976, following a Board election in Case 7-RC-11911 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 July 16, 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 December 22, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 7, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 27, 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 there- after 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 7-RC-11911, 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 Electrosystenss, Inc., 166 NLRB 938 (1%7), enfd. 388 F.2d 683 (C.A. 4, 1%8); Golden Age Beverage Co., 167 NLRB 151 (1%7), enfd . 415 F.2d 26 228 NLRB No. 113 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, the Respondent admits all of the factual allegations of the complaint except those relating to the appropriateness and scope of the collective-bargaining unit, which it denies. In its response to Notice To Show Cause, the Respondent contends that the Regional Director departed from Board precedent in the representation proceeding, Case 7-RC-11911, when he determined that an overall unit comprised of the Respondent's two separate plants was an appropriate unit for purposes of collective bargaining. The Respondent contends that only separate plant bargaining units are appro- priate. The Respondent filed a request for review of the Regional Director's Decision and Direction of Elec- tion, which issued on October 24, 1973, contesting the appropriateness of the unit. The Board denied such request on November 20, 1973, stating that it raised no substantial issues warranting review. Consequent- ly, in support of the Motion for Summary Judgment, the General Counsel argues and the Respondent admits that the Respondent does not raise any issues not previously litigated. 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.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the 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 the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In its response to the Notice To Show Cause, Respondent contends that the Board's rule of refus- ing to consider issues raised in a proceeding alleging a violation of Section 8(a)(5) which were or could have been raised in a prior representation proceeding, and (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. 2 See Pittsburgh Plate Glass Co v. N.LRB., 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board, Secs. 102.67(t) and 102.69(c). DETROIT PLASTIC MOLDING CO. Section 102.67(f) of the Board's Rules and Regula- tions, which provides that denial of a request for review shall preclude relitigating any issues raised in any related subsequent unfair labor practice proceed- ing, is contrary to Section 5 of the Administrative Procedure Act. Respondent contends that, under that Act, it is now entitled to a hearing conducted by an Administrative Law Judge. However, the Adminis- trative Procedure Act does not entitle the Respon- dent to an evidentiary hearing as a matter of statutory right in an unfair labor practice case where, as here, there are no substantial or material issues of fact for determination. The Board, with judicial approval, has so held; 3 and in such cases, summary judgment is appropriate. 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, a Michigan corporation, is engaged in the manufacture, sale, and distribution of plastic and related products at East Detroit, Michigan, and Roseville, Michigan. During the past calendar year, which period is representative of its operations during all times material hereto, Respondent purchased and caused to be transported and delivered at its East Detroit and Roseville plants directly from points located outside the State of Michigan certain goods and materials valued in excess of $50,000, and Respondent sold and distributed at its East Detroit and Roseville plants directly to points outside the State of Michigan certain of its products valued in excess of $50,000. 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 International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica (UAW), 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 1031 The following employees of the Respondent consti- tute 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 including shipping and receiving employees and truck drivers employed by the Employer at its plants located at 18125 Ten Mile Road, East Detroit, Michigan, and 15201 Eleven Mile Road, Roseville, Michigan; but excluding all professional employees, office cleri- cal employees, guards and supervisors as defined in the Act. 2. The certification On February 26, 1975, 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 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 July 6, 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 July 9, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 16, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 16, 1976, 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. 3 Locust Industries, Inc., 221 NLRB 604 (1975), Reeves-Bowman, Division of Cyclops Corporation, 194 NLRB 155 (1971 ); Crest Leather Manufacturing Company, 167 NLRB 1085 (1967), and cases cited therein at 1086, fn. 1. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 operations described in section 1, 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 com- merce 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 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 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); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1%5). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Detroit Plastic Molding Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 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 including shipping and receiving employees and truck drivers employed by the Employer at its plants located at 18125 Ten Mile Road, East Detroit, Michigan, and 15201 Eleven Mile Road, Roseville, Michigan; but excluding all professional employees, office clerical 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 July 6, 1976, 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 July 16, 1976, 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, 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 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, Detroit Plastic Moldilig Co., East Detroit, Michigan, and Roseville, Michigan, its officers, agents, succes- sors, and assigns, shallt 1. Cease and desist; from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees including shipping and receiving employees and truck drivers employed by the Employer at its plants located at 18125 Ten Mile Road, East Detroit, Michigan, and 15201 Eleven Mile Road, Roseville, Michigan; but excluding all professional employees, office cleri- cal 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: DETROIT PLASTIC MOLDING CO. 1033 (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 plants in East Detroit and Roseville, Michigan, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provid- ed by the Regional Director for Region 7, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent 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. 4 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 Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. 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 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 representative 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 bar- gaining unit is: All full-time and regular part-time produc- tion and maintenance employees including shipping and receiving employees and truck drivers employed by the Employer at its plants located at 18125 Ten Mile Road, East Detroit, Michigan, and 15201 Eleven Mile Road, Roseville, Michigan; but excluding all professional employees, office clerical em- ployees, guards and supervisors as defined in the Act. DETROIT PLASTIC MOLDING CO.