Sure-Tan, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sure-Tan, Inc. and Surak Leather Co. and Chicago Leather Workers Union, Local 43 L, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 13-CA- 16263 August 4, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on March 1, 1977, by Chicago Leather Workers Union, Local 43 L, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, and duly served on Sure-Tan, Inc. and Surak Leather Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint and amended complaint and notice of hearing on March 16 and April 4, 1977, respectively, 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, 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 January 17, 1977, following a Board election in Case 13-RC- 14147 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about February 18, 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 March 21 and April 8, 1977, respectively, Respondent's answer to the complaint and answer to the amended complaint, admitting in part, and denying in part, the allegations in the complaints, were received by the Regional Office. On April 21, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 29, 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 ' Official notice is taken of the record in the representation proceeding, Case 13-RC 14147, 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 Eleclrosvstems, Inc., 166 NLRB 938 ( 1967), enfd. 388 F.2d 683 (C.A. 4, 231 NLRB No. 32 should not be granted. In response to the Notice To Show Cause, the Respondent filed on May 13, 1977, a statement in opposition to which the General Counsel filed a response on May 23, 1977. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 to the complaint and response to the Notice to Show Cause, the Respondent denies that it is engaged in commerce within the meaning of the Act, and contends that it is entitled to a hearing before an Administrative Law Judge because it had no hearing on its objections to the election in the underlying representation case and because of special circumstances involving (1) the deportation of the illegal aliens included in the unit; and (2) the testimony of an unavailable witness that the Union threatened to report at least 50 percent of the eligible voters to the Immigration and Naturalization Ser- vice. Review of the record herein, including that in the underlying representation proceeding, Case 13-RC- 14147, discloses that, after a hearing and the submission of briefs by the parties on the jurisdic- tional issue, the Regional Director issued a Decision and Direction of Election on November 10, 1976, in which he found, contrary to the Respondent, that Sure-Tan Inc., alone was not the employer of the employees in the stipulated unit, but that Sure-Tan, Inc. and Surak Leather Co. were an employer engaged in commerce within the meaning of the Act, as they constituted a single integrated enterprise whose combined direct and indirect outflow met the Board's nonretail jurisdictional standard. The Re- spondent filed a timely request for review reiterating its jurisdictional contentions and alternatively re- questing reconsideration of any Board rule or policy subjecting Sure-Tan, Inc., to the Board's jurisdiction. On December 3, 1976, the Board denied the Respondent's request as raising no substantial issues warranting review. In the election conducted on December 10, 1976, the tally of ballots showed six for, and one against, the Union, with one ballot challenged. Thereafter, the Respondent filed objections to the election alleging, in substance, that (I) six of the seven eligible voters were illegal aliens; (2) a union representative 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Interrype 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. 138 SURE-TAN, INC. made material representations to voting group employees that he could get them clearance from the Immigration and Naturalization Service to perma- nently reside and work in the United States; (3) a union representative represented to unit employees that, if the Union won, the Respondent could be required by law to raise wages to $4 an hour; and (4), by this and other conduct, the Union destroyed the laboratory conditions for the election. The Respon- dent also requested a hearing on the factual questions raised by its objections. On January 17, 1977, the Acting Regional Director issued a Supple- mental Decision on Objections in which he overruled the objections in their entirety and certified the Union. The Respondent filed a timely request for review of the Acting Regional Director's Supplemen- tal Decision, particularly raising the propriety of the certification of a unit consisting primarily of illegal aliens. On February 17, 1977, the Board denied the request as raising no substantial issues warranting review and necessarily found that there were no substantial or material issues warranting a hearing. 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 Except as discussed hereinafter, 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 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 submission herein, the Respondent now contends that there are special circumstances, includ- ing the absence of a hearing on its objections in the representation case, which require the holding of a hearing. As special circumstances, the Respondent alleges that (I) all the illegal aliens in the unit, whose status was unknown to the Respondent prior to the election, have been deported; and (2) a previously unavailable witness could testify that a union representative threatened to report at least 50 percent of the eligible voters to the Immigration 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). :1 Diamond Cristal Salt Company, 222 NLRB 714 (1976); American Wholesalers, Inc., 222 NLRB 917 (197 6 ): and Dynamic Machine Co.,221 NLRB 1140(1975). Naturalization Service if the Union lost the election. We find no merit in this contention. As to (1), the fact that there has been employee turnover in the certified unit as a result of the deportation of alien employees is irrelevant to the issue of the Union's majority status, as it is well established that, absent unusual circumstances, there is an irrebuttable presumption that majority status of the certified union continues for I year from the date of the certification and that employee turnover does not constitute "unusual circumstances" within the Su- preme Court's decision in Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954).3 As to (2), the Respondent merely alleges that the witness and his testimony were unavailable during the representation proceeding. We note that the issue as to illegal aliens was raised by the Respondent's election objections and found to be without merit, and that Respondent makes no showing that, through the exercise of due diligence, this additional evidence could not have been pro- duced in timely fashion so as to be considered in the representation case.4 In these circumstances, we find that the Respondent's alleged special circumstances do not warrant the holding of a hearing, especially where, as here, the Respondent has raised no substantial or material issues in the underlying representation case, and the Board has held, with judicial approval, that an evidentiary hearing is not required.5 Accordingly, we shall 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 Sure-Tan, Inc., is an Illinois corpora- tion engaged in the business of tanning hides. V. J. Surak and S. S. Surak, jointly called Surak Leather Co., are copartners doing business under the trade name and style Surak Leather Co. and are engaged in the business of purchasing and selling hides. Respondent Sure-Tan, Inc., and Respondent Surak Leather Co., jointly called Respondent, are and have been affiliated businesses with common officers, ownership, directors, and operators, and constitute a single integrated enterprise; and said directors and operators formulate and administer a common labor policy for the aforementioned business, affecting the employees of said business. Respondent has main- ' Westinghouse Broadcasting Company. Inc. (WJZ TV, Channel 13), 218 NLRB 693(1975); A-l Sheet Metal Works, Inc.. 218 NLRB 962 (1975). 5 Handy Hardware Wholesale, Inc., 222 NLRB 373 (1976); Janler Plastic Mold Corporation, 191 NLRB 162 (1971); Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967). and cases cited therein. 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained an office and place of business located at 1464 West Webster, Chicago, Illinois. During the past calendar year, Respondent sold and shipped goods and services from its Chicago, Illinois, facility to points located outside the State of Illinois. During the same period, Respondent also sold and shipped goods and services to a customer located in the State of Illinois, which customer meets the Board's jurisdictional standards other than indirect inflow or indirect outflow standards. The total value of the above-mentioned goods and services is 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 Chicago Leather Workers Union, Local 43 L, Amalgamated Meat Cutters and Butcher Workmen of North America, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by Respondent at its facility now located at 1464 Webster Avenue, Chicago, Illi- nois, but excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. 2. The certification On December 10, 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 13, 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 January 17, 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 18, 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 18, 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 18, 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 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 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); 140 SURE-TAN, INC. 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. Sure-Tan, Inc. and Surak Leather Co. are an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chicago Leather Workers Union, Local 43 L, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its facility now located at 1464 Webster Avenue, Chicago, Illinois, but excluding office clerical employees, guards, profes- sional employees 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 January 17, 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 18, 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 the Respondent, Sure-Tan, Inc. and Surak Leather Co., Chicago, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Chicago Leather Workers Union, Local 43 L, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its facility now located at 1464 Webster Avenue, Chicago, Illi- nois, but excluding office clerical employees, guards, professional employees 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 Chicago, Illinois, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 13, 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 conspicu- ous 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 altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. e 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 Chica- go Leather Workers Union, Local 43 L, Amalga- mated Meat Cutters and Butcher Workmen of 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North America, AFL-CIO, 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 dscribed below, with respect to rates of pay, w*gus, hours, and other terms and conditions of emp4oyment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employ- ees employed by Respondent at its facility now located at 1464 Webster Avenue, Chicago, Illinois, but excluding office cleri- cal employees, guards, professional employ- ees and supervisors as defined in the Act. SurE-TAN, INC. AND SURAK LEATHER CO. 142