Production Products Co.

PRODUCTION PRODUCTS CO. Raymond Webb, a Sole Proprietorship, d/b/a Produc- tion Products Company and Local Union No. 503, Sheet Metal Workers' International Association, AFL-CIO. Case 25-CA-6391 December 9, 1974 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a charge filed on July 10, 1974, by Local Union No. 503, Sheet Metal Workers' International Associa- tion, AFL=CIO, herein called the Union, and duly served on Raymond Webb, a Sole Proprietorship, .d/b/a Production Products Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25, issued a complaint on July 17, 1974, against Respondent, 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, com- plaint, and notice 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 June 25, 1974, fol- lowing a Board election in Case 25-RC-5479, the Un- ion was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about June 25, 1974, and continuing to date, and more particularly on or about July 8, 1974, 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 July 24, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 31, 1974, counsel for the General Counsel filed directly with the Board a Motion to Strike Por- tions of Respondent's Answer and Motion for Sum- mary Judgment. Subsequently, on August 21, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- i Official notice is taken of the record in the representation proceeding, Case 25-RC-5479, 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 LTVElectrosystems, 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., 1957); Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 417 eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a tele- graphic response to Notice To Show Cause, entitled "Motion to Dismiss and Remand for a Hearing" to which counsel for the General Counsel filed an opposi- tion. 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 in its motion responding to the Notice To Show Cause, Respondent basically attacks the Union's representative status and raises for the first time supervisory conduct during the election which allegedly affects the validity thereof. Our review of the record herein, including that of Case 25-RC-5479, reveals an election conducted on October 26, 1973, pursuant to a Stipulation for Certifi- cation Upon Consent Election resulting in four votes cast for the Union, two against, and four challenged ballots. The Union filed timely objections to conduct affecting the results of the election, alleging, in sub- stance, that a torn ballot should not have been counted. Following investigation, the Acting Regional Director on January 15, 1974, issued a report on objections and challenged ballots, recommending that the Board over- rule the objection, sustain one challenge, and order a hearing on the remaining three challenges. Absent the filing of proper and timely exceptions, the Board adopted the Acting Regional Director's recommenda- tions. Following the hearing, at which all parties ap- peared, the Hearing Officer issued his report on chal- lenged ballots and recommendations to the Board recommending that one challenge be overruled and the other two sustained. The Respondent filed exceptions and appeal to the report and a brief in support thereof as to one of the ballots, the challenge to which had been sustained on the ground that the voter was not a regular employee. After consideration of the entire record, including the reports, the record of the hearing, the Respondent's exceptions, and the absence of exceptions to the other portions of the Hearing Officer's report, the Board on June 25, 1974, issued a Decision and Certification of Representative in which it adopted the findings, con- clusions, and recommendations of the Hearing Officer and certified the Union as the exclusive bargaining re- presentative of the employees in the appropriate unit. It thus appears that the Respondent is attempting to 215 NLRB No. 88 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relitigate issues raised and determined in the underly- ing representation case. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior re- presentation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, not 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 prop- erly 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 I. THE BUSINESS OF THE RESPONDENT Raymond Webb is, and has been at all times material herein, an individual proprietor doing business under the trade name of Production Products Company en- gaged in the manufacture, sale, and distribution of molds and related products, with its principal office and place of business at Indianapolis , Indiana. During the past 12-month -period, Respondent, in the course and conduct of its business, manufactured, sold, and 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102 .67(f) and 102.69(c). 3 Respondent, by telegram dated October 1, 1974, filed a motion to dismiss and remand for a hearing, alleging evidence not brought out in the representation proceedings . The evidence is alleged to be "statements" made by supervisory personnel at the time of the election without the Respondent's knowledge or authority . There is no showing of what these statements were or how they might have affected the election . Furthermore, Respondent makes no showing that this evidence was newly discovered or previously unavailable at the time of the hearing nor alleges any special circumstances why they were not raised in timely objections . Therefore, Respondent's motion is denied. Teledyne, Landis Machine, 212 NLRB No. 11 (1974); Jason/Empire, Inc., 212 NLRB No. 21 (1974); E-Z Davies Chevrolet, 161 NLRB 13$0, 1383 (1966). 4 The Respondent denies the allegation of the complaint that since June 25, 1974, and particularly since July 1, 1974 , the Union has continued to request bargaining . Respondent does, however, admit its own letter of July 8, 1974, in which it refused to bargain with the Union. Copies of both letters are attached to the complaint with the Union's July 1, 1974 , letter showing a United States certified mail receipt . This letter requested certain informa- tion in anticipation of negotiations . Respondent does not deny the validity of the letter and has submitted nothing to controvert the letter , its contents, or the argument of the General Counsel in his Motion for Summary Judg- ment with respect to same . Accordingly, we find the allegation of a request to bargain and a refusal to honor that request to be true and the Genreal Counsel's motion to strike is granted . Richmond, Division of Pak-Well, 206 NLRB 260 (1973). distributed products valued in excess of $50,000 which were shipped from its place of business to locations outside the State of Indiana. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. ti. THE LABOR ORGANIZATION INVOLVED Local Union No. 503, Sheet Meta: Workers' Interna- tional Association, AFL-CIO, 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 consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Employer at its 2515 Roosevelt Avenue, In- dianapolis, Indiana, facility; but excluding all of- fice clerical employees, all professional employees, all guards, and supervisors as defined in the Act. 2. The certification On October 26, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 25, designated the Union as their represen- tative for the purpose of collective-bargaining with the Respondent. The Union was certified as the collective- bargaining representative of the employees in said unit on June 25, 1974, 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 1, 1974, and at all times thereafter, the Union has requested the Respond- ent to bargain collectively with it as the exclusive col- lective-bargaining representative of all the employees in the above-described unit. Commencing on or about July 8, 1974, 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. PRODUCTION PRODUCTS CO. Accordingly, we find that the Respondent has, since July 8, 1974, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above, occurring in connection with its operations described in section I, 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 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 meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive re- presentative of all employees in the appropriate unit, and, if an understanding is reached, embody such un- derstanding in a signed agreement. In order to insure that the employees in the appropri- ate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit . See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Com- merce 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 Com- pany, 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. Raymond Webb, a Sole Proprietorship, d/b/a Production Products Company, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 503, Sheet Metal Workers' Inter- national Association, AFL-CIO , is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Employer at its 2515 Roosevelt Avenue, Indianapolis, 419 Indiana, facility, but excluding all office clerical em- ployees, all professional employees , all guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 25, 1974, the above-named labor organ- ization has been and now is the certified and exclusive representative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 8, 1974, 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Raymond Webb, a Sole Proprietorship, d/b/a Production Pro- ducts Company, its 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 conditions of employment with Local Union No . 503, Sheet Metal Workers' International Association , AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of the Employer at its 2515 Roosevelt Avenue, In- dianapolis, Indiana, facility, but excluding all of- fice clerical employees, all professional employees, all 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 la- bor organization as the exclusive representative of all 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the aforesaid appropriate unit with re- spect 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 agree- ment. (b) Post at its facility in Indianapolis, Indiana, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 25, after being duly signed by Respon- dent'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 Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local Union No. 503, Sheet Metal Workers' International As- sociation, 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 inter- fere 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 under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees of the Employer at its 2515 Roosevelt Avenue, In- dianapolis, Indiana, facility, but excluding all of- fice clerical employees, all professional employees, all guards, and supervisors as defined in the Act. RAYMOND WEBB, A SOLE PROPRIETORSHIP, D/B/A PRODUCTION PRODUCTS COMPANY