Universal Division, Leigh Products, Inc

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Division, Leigh Products, Inc. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-13939 August 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEILLO AND MURPHY Upon a charge filed on April 1, 1977, by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Universal Division, Leigh Products, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on April 12, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on February II1, 1977, following a Board election in Case 7-RC- 13774 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 February 22, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On April 22, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 5, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 16, 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 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 Official notice is taken of' the record in the representation proceeding, Case 7-RC 13774. as the term "record" is defined in Secs. 102.68 and 102.6 9 (g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Electrosi.stems, Inc.. 166 NIRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden 4Rge Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26 231 NLRB No. 21 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 Respondent's answer asserts as a defense that the Certification of Representative was improperly is- sued and thus Respondent was justified in refusing to engage in collective bargaining with the Union. This assertion is based on objections to union conduct which Respondent argues invalidated the election. Pursuant to a Stipulation for Certification Upon Consent Election the Regional Director for Region 7 conducted the election by secret ballot on September 13, 1976. A majority of those employees in the stipulated unit who voted selected the Union as their representative for the purposes of collective bargain- ing. The tally of ballots revealed that out of approximately 191 eligible voters, 160 valid ballots were cast, 82 for the Union, and 78 against, with 2 challenged ballots. On September 20, 1976, Respondent filed timely objections to the conduct of the election alleging that certain union activities materially affected the results of the election. The Regional Director conducted an investigation which included a full opportunity for the parties to submit testimony and other evidence bearing on the objections. On November 15, 1976, the Regional Director issued his report with the recommendation that the objections be overruled. Respondent filed objections to the Regional Direc- tor's recommendation. Finally, on February II, 1977, the Board issued a Decision and Certification of Representative which adopted the Regional Director's report and recommendations. The Board further certified the Union as the exclusive collective- bargaining representative of all employees in the appropriate unit. It thus appears that Respondent is endeavoring to relitigate matters considered and determined in the representation proceeding. 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 proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Folletr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec. 9(d) of the N LRA, as amended. 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). 126 UNIVERSAL DIVISION, LEIGH PRODUCTS 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. 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 Respondent, a Delaware corporation, is engaged in the manufacture, sale, and distribution of sprayers, compressed air sprayers, dusters, steel folding doors, and related products at its plant in Saranac, Michigan, which is the only facility involved in this proceeding. During the past calendar year, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Saranac, Michigan, plant directly from points locat- ed outside the State of Michigan goods and materials valued in excess of $50,000 and manufactured, sold, and distributed at its Saranac, Michigan, plant products valued in excess of $50,000 which were shipped from said plant directly to points located outside of the State of Michigan. 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 America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Employer at its 460 Main Street, Saranac, Michigan, facility, including truckdri- vers, shipping and receiving employees, techincal employees and leadmen; but excluding all office clerical employees, timekeepers, professional em- ployees, watchmen, guards, foremen, assistant foremen, and all other supervisors as defined in the Act. 2. The certification On September 13, 1976, a majority of the employ- ees 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 bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on February 11, 1977, 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 15, 1977, and at all times thereafter, the Union has requested the Respondent 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 February 22, 1977, 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 22, 1977, 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, Respon- dent 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 Respondent set forth in section III, above, occurring in connection with its opera- tions 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 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obstructing commerce and the free flow of com- merce. 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, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Universal Division, Leigh Products, Inc., 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 production and maintenance employees employed by the Employer at its 460 Main Street, Saranac, Michigan, facility, including truckdrivers, shipping and receiving employees, technical employ- ees and leadmen; but excluding all office clerical employees, timekeepers, professional employees, watchmen, guards, foremen, assistant foremen and all other 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 February 11, 1977, 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 February 22, 1977, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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 Respondent, Universal Division, Leigh Products, Inc., Saranac, 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 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 production and maintenance employees em- ployed by the Employer at its 460 Main Street, Saranac, Michigan, facility, including truckdri- vers, shipping and receiving employees, technical employees, and leadmen; but excluding all office clerical employees, timekeepers, professional em- ployees, watchmen, guards, foremen, assistant foremen, and all other 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. 128 UNIVERSAL DIVISION, LEIGH PRODUCTS (b) Post at its plant in Saranac, Michigan, copies of the attached notice marked "Appendix." 3 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 Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices 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. a 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 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 representa- tive 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 agree- ment. The bargaining unit is: All production and maintenance employees employed by the Employer at its 460 Main Street, Saranac, Michigan, facility, including truckdrivers, shipping and receiving employ- ees, technical employees and leadmen; but excluding all office clerical employees, time- keepers, professional employees, watchmen, guards, foremen, assistant foremen, and all other supervisors as defined in the Act. UNIVERSAL DIVISION, LEIGH PRODUCTS, INC. 129