Scintilla Power Corporation

700 I)TECISIONS OF NATIONAL LABOR RELATIONS BOARD Scintilla Power Corporation and Chauffeurs, Team- sters, Warehousemen & Helpers, Local 186, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Case 31-CA-10242 June 18, 1981 DECISION AND ORDER Upon a charge filed on July 21, 1980, by Chauf- feurs, Teamsters, Warehousemen & Helpers, Local 186, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, and duly served on Scin- tilla Power Corporation, herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 31, issued a complaint on September 19, 1980, 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. The Regional Director for Region 31 issued an amendment to the complaint on February 5, 1981. Copies of the charge, the complaint and notice of hearing before an administrative law judge, and the amended 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 23, 1979, following a Board election in Case 31-RC- 4316, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about November 9, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On September 29, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On February 25, 1981, Re- spondent filed its amended answer to the amended complaint. On March 27, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 1, 1981, the Board issued an order transferring the ' Official notice is taken of the record in the representation proceed- ing, Case 31 RC-4316, as the term "record" is defined in Sees. 102.68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended See LT' Electro.syvtens, Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968), Golden Age Beverage Co., 167 NL.RB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969); Intertype Co. v Penello, 269 F.Supp. 573 (D C.Va. 1967);, Follett Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended 256 NLRB No. 109 proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answers to the complaint and the amended complaint and in its answer to the Notice To Show Cause, Respondent repeats its arguments, first raised in the representation proceeding, that the Union's certification is invalid because of conduct affecting the results of the election. That conduct, according to Respondent, caused the election to be held in an atmosphere of fear and reprisal not con- ducive to an uncoerced choice of a bargaining rep- resentative. Respondent also raises again its conten- tion that the Board abused its discretion by failing to grant Respondent an evidentiary hearing on its objections. The General Counsel argues that all material issues have been previously presented to, and de- cided by, the Board, and that there are no litigable issues of fact requiring a hearing. We agree with the General Counsel. Our review of the record herein, including the record in Case 31-RC-4316, discloses that the Re- gional Director for Region 31 approved a Stipula- tion for Certification Upon Consent Election on November 20, 1978. Pursuant to that stipulation, an election was conducted on December 14, 1978. The tally of ballots showed 41 votes cast for, and 23 against, the Union, with no challenged ballots. Respondent thereafter filed timely objections to the election. On January 31, 1979, the Acting Regional Director for Region 31 issued a Report on Objec- tions in which he overruled Respondent's objec- tions and recommended that the Union be certified as the collective-bargaining representative of the unit stipulated as appropriate. Respondent filed timely exceptions to the Acting Regional Direc- tor's report. The Board, on July 23, 1979, issued a Decision and Certification of Representative adopt- ing the Acting Regional Director's findings and recommendations and certifying the Union as the exclusive bargaining representative of all employ- ees in the stipulated appropriate unit. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled SCINTILLA POWER CORPORATION 701 to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. With respect to its contention that it is entitled to a hearing on its objections, we find it to be with- out merit as the Board has held, with judicial ap- proval, that evidentiary hearings are not required in unfair labor practice cases where, as here, there are no substantial or material facts to be deter- mined and in such cases summary judgment is ap- propriate.3 Accordingly, we 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 RESPONDENT Respondent is now, and has been at all times ma- terial herein, a California corporation engaged in manufacturing electronic parts. During the past calendar year, the dollar volume of Respondent's sales exceeded $500,000 and it sold goods valued in excess of $50,000 directly to customers located out- side the State of California. We find, on the basis of the foregoing, that Re- spondent 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. II1. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters, Warehousemen & Help- ers, Local 186, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 2 See Pittsburgh Plate Glass Co. v .NL.R.B. , 313 U S 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f and 102.69 (c). 3 Handy Hardware Wholesale. Inc.. 222 NLRB 373 (1976): Janler Plastic Mold Corporation. 191 NLRB 162 (1971); Crest Leather lanufacturing Corporation, 167 NLRB 1085 (1967), and cases cited thereill III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees and shipping and receiving employees em- ployed by the Employer at its facility located at 209 Willis Avenue, Camarillo, California; excluding all other employees, office clerical employees, research and development employ- ees, sales employees, confidential managerial employees, foremen, guards, watchmen and su- pervisors as defined in the Act. 2. The certification On December 14, 1978, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 23, 1979, 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 October 30, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 9, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 9, 1979, 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, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 702 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Scintilla Power Corporation is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters, Warehousemen & Helpers, Local 186, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees and shipping and receiving employees employed by the Employer at its facility located at 209 Willis Avenue, Camarillo, California; excluding all other employees, office clerical employees, research and development employees, sales employees, confiden- tial managerial employees, foremen, guards, watch- men and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since July 23, 1979, 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 Act. 5. By refusing on or about November 9, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 the Respondent, Scintilla Power Corporation, Camarillo, California, 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 Chauffeurs, Team- sters, Warehousemen & Helpers, Local 186, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees and shipping and receiving employees em- ployed by the Employer at its facility located at 209 Willis Avenue, Camarillo, California; excluding all other employees, office clerical employees, research and development employ- ees, sales employees, confidential managerial employees, foremen, guards, watchmen and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. SCINTILLA POWER CORPORATION 703 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its 209 Willis Avenue, Camarillo, California, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that copies of said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 "Posled by Order of the National Labor Relations Board" shall read "Posted Puru- ant to a Judgment of the United States Court of Appeals nfircing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPI OYEES 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 Chauffeurs, Teamsters, Warehousemen & Helpers, Local 186, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees and shipping and receiving employees em- ployed by the Employer at its facility locat- ed at 209 Willis Avenue, Camarillo, Califor- nia; excluding all other employees, office clerical employees, research and develop- ment employees, sales employees, confiden- tial managerial employees, foremen, guards, watchmen and supervisors as defined in the Act. SCINTII LA POWER CORPORATION