Kal-Equip Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kal-Equip Company and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW). Case 7-CA- 13918 August 16, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on March 28, 1977, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and duly served on Kal-Equip Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on April 8, 1977, 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 February 25, 1977, following a Board election in Case 7-RC- 13790, 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 March 22, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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 April 18, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 28, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 6, 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 entitled "Respondent's Response and Brief in Opposition to General Counsel's Summary Judgment Motion." ' Official notice is taken of the record in the representation proceeding, Case 7-RC-13790. as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Elecirosystems, 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 26 231 NLRB No. 73 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, Respondent contests the validity of the certification on the basis of its objections to the election in the underlying represen- tation case (7-RC-13790), and requests that the Board reconsider its February 25, 1977, Decision and Certification of Representative 2 on the basis of its submission of December 21, 1976. The General Counsel contends that Respondent is attempting to relitigate matters which were or could have been considered and disposed of in the prior representa- tion proceeding and this it may not do. We agree with the General Counsel. A review of the record, including that of the underlying representation case, reveals that an election was held on October 20, 1976, pursuant to a Stipulation for Certification Upon Consent Election, in which the union prevailed by a vote of 185 to 163, with no void or challenged ballots. Respondent filed timely objections, alleging in substance union elec- tioneering and misrepresentations, improper Board agent conduct, and inadequate notice of election. On October 27, 1976, after investigation, the Regional Director directed a hearing on the issues of substan- tial and material facts raised by the objections. After a hearing was held on December 10, 1976, the Hearing Officer issued a Report and Recommenda- tions on Objections in which he found all the objections to be without merit and recommended that they be overruled and that the appropriate certification issue. Respondent filed with the Board exceptions and brief in support, reiterating its objections, alleging that the Hearing Officer's report failed to consider the cumulative effect of the objected-to incidents which were substantial and could have materially affected the conduct or result of the election, and requesting that the election be set aside and that a new one be held. On February 25, 1977, the Board, upon the entire record of the case, issued a Decision and Certification of Representative adopting the Hearing Officer's findings and recom- mendations and certifying the Union. It thus appears that Respondent is attempting to relitigate issues that (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Folletrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the N LRA, as amended. 2 Not reported in bound volumes of Board decisions. 488 KAL-EQUIP COMPANY were considered and determined by the underlying representation case and which do not warrant reconsideration of the Board's Decision and Certifi- cation of Representative. 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.3 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. 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 corporation duly organized under the laws of the State of Michigan, at all times material herein, has maintained its principal office and place of business at 411 Washington Street, Otsego, Michigan, the Main Plant, and maintains another facility at the same location called the Advance Meter Plant. Respondent is, and has been at all times material herein, engaged in the manufac- ture, sale, and distribution of automotive electronic testing devices and related products. During the preceding year, a representative period, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and deliv- ered to its Otsego, Michigan, plants goods and materials valued in excess of $50,000, which were transported and delivered to said plants directly from points located outside the State of Michigan. During the same period, Respondent, in the course and conduct of its business operations, manufactured, sold, and distributed at said plants products valued in excess of $50,000, which were shipped from said plants directly to points located outside the State of Michigan. We find, on the basis of the foregoing, that Respondent is, and has been at all times material 3 See Piulsburgh 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). 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 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 full-time and regular part-time production and maintenance employees employed by the Employer at its facilities located in Otsego, Michigan, including production technicians, tool- room employees, and truckdrivers; but excluding engineering technicians, office clerical employees, customer service clerks, shipping secretaries, production control clerks, Advance Meter depart- ment clericals, professional employees, guards and supervisors as defined in the Act. 2. The certification On October 20, 1976, 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 February 25, 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 March 3, 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 March 22, 1977, and continuing at all times thereafter to date, the Respondent has 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 March 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 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); 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 1. Kal-Equip Company 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 employed by the Em- ployer at its facilities located in Otsego, Michigan, including production technicians, toolroom employ- ees, and truckdrivers; but excluding engineering technicians, office clerical employees, customer service clerks, shipping secretaries, production con- trol clerks, Advance Meter department clericals, professional employees, 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 February 25, 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 March 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 the Respondent, Kal-Equip Company, Otsego, 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 (UAW), as the exclusive bar- gaining representative of its employees in the following appropriate unit: 490 KAL-EQUIP COMPANY All full-time and regular part-time production and maintenance employees employed by the Employer at its facilities located in Otsego, Michigan, including production technicians, tool- room employees, and truckdrivers; but excluding engineering technicians, office clerical employees, customer service clerks, shipping secretaries, production control clerks, Advance Meter depart- ment clericals, professional 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: (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 Otsego, Michigan, facilities copies of the attached notice marked "Appendix." 4 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. I 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 (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 full-time and regular part-time pro- duction and maintenance employees em- ployed by the Employer at its facilities located in Otsego, Michigan, including production technicians, toolroom employ- ees, and truckdrivers; but excluding engi- neering technicians, office clerical employ- ees, customer service clerks, shipping secre- taries, production control clerks, Advance Meter department clericals, professional employees, guards and supervisors as de- fined in the Act. KAL-EQUIP COMPANY 491