Brisstol Spring Mfg., Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bristol Spring Manufacturing Company and United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW Local 1251. Case I-CA-12714 August 24, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on February 7, 1977, by United Automobile, Aerospace and Agricultural Implement Workers of America. UAW Local 1251, herein called the Union, and duly served on Bristol Spring Manufacturing Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing and amendment to complaint on March 15 and April 26, 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 October 6, 1976, following a Board election in Case I-RC- 14258, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about October 12, 1976, 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 March 28 and May 9, 1977, Respondent filed its answers to the complaint and amendment to complaint, respectively, admitting in part, and denying in part, the allegations in the complaint and the amended complaint. On May 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Respondent filed a response thereto on May 23, 1977, entitled "Response to General Counsel's Motion for Summary Judgment." Also, on May 23, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Official notice is taken of the record in the representation proceeding, Case I-RC 14258. 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 Electrosvstems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 231 NLRB No. 85 Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause, entitled "Response to Order to Show Cause and Motion That General Counsel's Motion for Summary Judgment be Dismissed," in which it incorporated therein the matters contained in its "Response to General Counsel's Motion for Summa- ry Judgment." Counsel for the General Counsel subsequently filed an answer thereto. 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 answers to the complaint and the amended complaint and response to the Notice To Show Cause, Respondent contests the validity of the Union's certification (1) on the basis of its objections in the underlying representation case, and (2) on the grounds that it has no knowledge as to whether or not an appropriate panel of the Board considered the submissions in support of its exceptions to the Acting Regional Director's report and properly executed its Decision and Certification of Representative. In his submissions, the General Counsel contends, inter alia, that Respondent is attempting to relitigate representation case matters considered and disposed of in the prior representation proceeding and this it may not do. We agree. Review of the record herein, including that in Case I-RC-14258, establishes that, pursuant to a Stipula- tion for Certification Upon Consent Election, an election was held on April 2, 1976, in which the vote was 43 to 36 with 7 determinative challenged ballots. Thereafter, Respondent filed timely objections to the election alleging union conduct essentially as fol- lows: (1) campaign activity designed to create the impression that the Government and the Board endorsed the Union; (2) misrepresentations; (3) financial inducements; (4) threats; and (5) creating an "atmosphere of fear." After investigation, the Acting Regional Director issued on July 22, 1976, a report entitled "Consolidated Report on Objections and Challenged Ballots" recommending that the 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., 1967); Follell Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 568 BRISTOL SPRING MFG. CO. objections be overruled and that the challenge to one ballot be sustained.2 Accordingly, since the remain- ing six challenged ballots were no longer determina- tive and the Union received a majority of the valid votes cast, the Acting Regional Director recommend- ed that a certification of representative be issued. Respondent filed with the Board detailed exceptions and a brief essentially reiterating its objections, excepting specifically to the Acting Regional Direc- tor's failure to consider the Union's payment of the Board agent's lunch as set forth in an attached affidavit, and requesting that the election be set aside, or, alternatively, that a hearing be held on its objections. After considering Respondent's objec- tions and determinative challenges and the report, and after reviewing the record in light of the exceptions and brief, the Board, on October 6, 1976, issued a Decision and Certification of Representa- tive3 in which it adopted the findings and recommen- dations of the Acting Regional Director and certified the Union, thereby necessarily finding that Respon- dent did not raise substantial or material issues requiring a hearing. In its response to the Notice To Show Cause Respondent again contends that it is entitled to an evidentiary hearing on its objections. As indicated above, the Board's Decision and Certification of Representative necessarily found that Respondent's objections raised no issues requiring a hearing. It is well established that parties do not have an absolute right to a hearing. It is only when the moving party presents a prima facie showing of "substantial and material factual issues" which would warrant setting aside the election that it is entitled to an evidentiary hearing4 and Respondent has not made such a showing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional requirements. 5 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 2 The parties had stipulated and the Acting Regional Director found that the voter was ineligible to vote because he was a managerial employee. :' In its answer, Respondent contends that it has no knowledge as to whether or not an appropriate panel of the Board considered its objections, exceptions, and briefs including material not previously considered by the Acting Regional Director and whether the panel properly executed the Decision and Certification of Representative. However, the panel that decided the instant case also decided and issued the Decision and Certification of Representative in the underlying representation case and in so doing considered the entire record, including Respondent's objections, exceptions, and briefs. The signed copy of the Decision and Certification of Representative by the three panel members is to be found in the formal file of the representation case (I-RC-14258) located at the Board's Offices in Washington, D.C., and is available for inspection and copying and is not reported in printed volumes of Board decisions. I NL.R.B. v. Modine Manufacturing Company, 500 F.2d 914 (C.A. 8, 1974), enfg. 203 NLRB 527 (1973): Handy Hardware Wholesale, Inc., 222 to relitigate issues which were or could have been litigated in a prior representation proceeding.6 Except as hereafter discussed, all issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavail- able 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. Respondent also contends in its response that the Acting Regional Director assigned the same Board agent, who investigated the earlier unfair labor practice charge against Respondent in Case I-CA- 11410, to investigate the objections in the underlying representation case, contrary to normal Regional Office practice. Respondent made no showing that this Board agent's investigation of the unfair labor practice charge prejudiced his participation in the underlying representation case to the detriment of Respondent or compromised the integrity of the representation proceedings.7 Furthermore, Respon- dent has not shown why this matter could not have been raised in the underlying representation case and, therefore, it cannot be relitigated here.8 Further, in its response Respondent contends that granting summary judgment on the issue of its failure to furnish the specific information requested by the Union is unwarranted as the complaint and its amendment, which allege the request for informa- tion, failed also to allege that it was "relevant and necessary." We find no merit in this contention. The request for this information as well as the refusal to furnish it as alleged in complaint is admitted by Respondent's answer.9 The information requested by the Union herein, such as the names and job classifications of the union employees, and their wages, hours, and other current benefits, clearly constitutes information which has a direct bearing on NLRB 373 (1976); Janler Plastic Mold Corporation, 191 NLRB 162 (1971); Crest Leather Manufacturing Corporation. 167 NLRB 1085 (1967), and cases cited therein. 5 Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.LR.B., 424 F.2d 818, 828 (C.A.D.C., 1970). 6 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941). Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 7 Osborn Transportation, Inc., 226 NLRB 1370 (1976); Kimco Auto Products of Mississippi, Inc., 184 NLRB 599 (1970): Amax Aluminum Extrusion Products, Inc., 172 NLRB 1401 (1968). 8 Pittsburgh Plate Glass v. N. L R. B., supra, fn. 6. 9 Accordingly, we find no merit in Respondent's contention in its response that the factual allegations of par. II of the Motion for Summary Judgment are beyond the scope of the complaint, since they are in support of the requests and refusals to bargain alleged in the complaint, which allegations were admitted by Respondent's answers. 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the negotiation of wages, hours, and other terms and conditions of employment and, therefore, is relevant and necessary.10 The Board has held that such information encompasses matters which are manda- tory subjects of bargaining, and employers are required to provide this information to enable unions to bargain intelligently and to fulfill their obligations as the selected representatives of their employees." We shall, accordingly, grant the Motion for Summa- ry 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 organized under the laws of the State of Connecticut, at all times material herein, has maintained its principal office and place of business at 123 Whiting Street, Plainville, Con- necticut (herein called the Plainville plant), where it is now and continuously has been engaged in the manufacture, sale, and distribution of precision springs, wire forms, metal stampings, and related products. Respondent, in the annual course and conduct of its business operations, receives at its Plainville plant products and materials valued in excess of $50,000 directly from points located outside the State of Connecticut. Annually, Respondent, in the course and conduct of its business operations, ships from its Plainville plant springs and related products valued in excess of $50,000 directly to points outside the State of Connecticut. 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 United Automobile, Aerospace and Agricultural Implement Workers of America, UAW Local 1251, is a labor organization within the meaning of Section 2(5) of the Act. "' N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-436 (1%967). " Dynamic Machine Co., 221 NLRB 1140, 1142 (1975); Irwindale Division of L U Industries, a Division of Phillips Industries, Inc., 219 NLRB 364, 366 (1975): Northwest Publications, Inc., 211 NLRB 464, 465 (1974). 12 The Union seeks information relating to: names, ages, sex, marital status, dependents, and classifications of all unit employees; individual 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 of Respondent employed at its Plainville plant, exclusive of all office clerical employees, sales- men, confidential employees, professional em- ployees, watchmen, guards and supervisors as defined in the Act. 2. The certification On April 2, 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 1, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 6, 1976, 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 12, 1976, and at all times thereafter, the Union has requested Respon- dent to furnish certain relevant and necessary information for the purpose of collective bargain- ing,12 and 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 October 12, 1976, and continu- ing at all times thereafter to date, Respondent has 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 Respondent has, since October 12, 1976, 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 wage rates of pay for each unit employee; wage structure for minimums and maximums of each labor grade or classification; what fringe benefits are in effect for unit employees such as the number of paid holidays; amount of life insurance and cost; weekly indemnity for sickness and accident benefits and duration of such benefits and their cost; hospital and medical benefits; pension plan; and other related matters. 570 BRISTOL SPRING MFG. CO. 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(aX)(5) and (1) of the Act, we shall order that it cease and desist therefrom, furnish the Union the requested relevant and necessary information for the purpose of collective bargaining, and upon request, bargain collectively with the Union as the exclusive representative of all employ- ees 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. Bristol Spring Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Automobile, Aerospace and Agricul- tural Implement Workers of America, UAW Local 1251, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent employed at its Plainville plant, exclu- sive of all office clerical employees, salesmen, confidential employees, professional employees, watchmen, 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 October 6, 1976, 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 October 12, 1976, 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 refusing on or about October 12, 1976, and at all times thereafter, to provide the above-named labor organization with certain relevant and neces- sary information requested by it for purposes of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusal to bargain, and refusal to provide relevant and necessary information for the purposes of collective bargaining, Respondent has interfered with, restrained, and coerced, and is interfering 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 engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 8. 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, Bristol Spring Manufacturing Company, Plainville, Connecticut, 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 United Automobile, Aerospace and Agricultural Implement Workers of America, UAW Local 1251, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All production and maintenance employees of Respondent employed at its Plainville plant, exclusive of all office clerical employees, sales- 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, confidential employees, professional em- ployees, watchmen, guards and supervisors as defined in the Act. (b) Refusing to provide the above-named labor organization with the relevant and necessary infor- mation requested by it for the purpose of collective bargaining. (c) 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) Upon request, provide the above-named labor organization with the relevant and necessary infor- mation requested by it for the purpose of collective bargaining. (c) Post at its Plainville, Connecticut, facility copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 1, 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. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 13 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 United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW Local 1251, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the Union with the relevant and necessary information requested by it for the purpose of collective bargaining. 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 employ- ees of Respondent employed at its Plainville plant, exclusive of all office clerical employ- ees, salesmen, confidential employees, pro- fessional employees, watchmen, guards and supervisors as defined in the Act. WE WILL, upon request, provide the above- named labor organization with relevant and necessary information requested by it for the purpose of collective bargaining. BRISTOL SPRING MANUFACTURING COMPANY 572