C & D Batteries Division, an Eltra Company

C & D BATTERIES DIVISION C & D Batteries Division, an Eltra Company and International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW. Case 10-CA-17445 March 9, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on September 17, 1981, and an amended charge filed October 1, 1981, by Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called the Union, and duly served upon C & D Batteries Division, an Eltra Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 10, issued a complaint on October 1, 1981, 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 26, 1981, following a Board election in Case 10-RC- 12351, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about September 10, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. The com- plaint also alleges that Respondent, since Septem- ber 10, 1981, has unlawfully refused to supply the Union certain requested information for its use in collective bargaining: the names and addresses of employees as well as their wages, benefits, working hours, vacations, holidays, and job classifications. On October 19, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Official notice is taken of the record in the representation proceeding. Case 10-RC-12351, as the term "record" is defined in Ses. 1(12 t8 and 102 69(g) of the Board's Rules and Regulations. Series 8, as amended See LTV Electrorystems. Inc., 166 NLRB 938 (19h7). enfd 388 F2d 68R (4th Cir 1968); Golden Age Beverage Co.. lt7 NLRH 151 (1967), .nfd 415 F 2d 26 (5th Cir 1909); Inirfpc o ( . Plneloi. 2h9 F Supp 573 (DCVa. 1967) Follttrr Corp. 164 NLRB 378 19h7). enfd 19' F 2d 91 (7th Cir 1968): Sec. 9(d) of the Ni RA, as amended. 260 NLRB No. 75 On November 2, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On November 9, 1981, Re- spondent filed an opposition to the General Coun- sel's motion. Subsequently, on November 12, 1981, the Board issued an order transferring the proceed- ing 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 the Notice To Show Cause, to which the Union filed a response. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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, its response to the Notice To Show Cause, and its opposition to the Motion for Summary Judgment, Respondent at- tacks the validity of the Union's certification con- tending that the election in Case 10-RC-12351 was conducted in an inappropriate unit and that its ob- jections to the conduct of the election were errone- ously overruled. Review of the record herein, as well as that in Case 10-RC-12351, reveals that on April 1, 1981, the Regional Director for Region 10 issued a Deci- sion and Direction of Election in which he found the following unit appropriate for purposes of col- lective bargaining: All production and maintenance employees employed by the Employer at its Conyers, Georgia facility including casters, pasting em- ployees, brushers, assemblers, finishers, plate wrappers, chargers, shipping and receiving employees, maintenance employees, truckers, janitors, quality control employees, oxide mill employees, but excluding service technicians, the engineering lab technician, the material control clerk, material control expediters, the payroll clerk, the plant engineer clerk, the reg- istered nurse, the secretary to the plant man- ager, the traffic secretary, the personnel secretary/receptionists, office clerical employ- ees, guards and supervisors as defined in the Act. Thereafter, Respondent filed with the Board a timely request for review of the Decision and Di- rection of Election, alleging that the Regional Di- rector erroneously included the quality control and oxide mill employees in the unit and erroneously excluded Eugene Ellis as a supervisor. On April 29, 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1981, the Board denied Respondent's request for review. Thereafter, an election was held on May 1, 1981. The tally of ballots shows that 95 votes were cast for, and 89 votes were cast against, the Union. There were 2 challenged ballots. On May 8, 1981, Respondent timely filed eight objections to conduct affecting the election, alleg- ing acts of violence and sabotage, material misrep- resentations, and threats of violence and bodily harm. On June 26, 1981, the Acting Regional Di- rector for Region 10 issued a Supplemental Deci- sion and Certification of Representative in which he overruled Respondent's objections. The Acting Regional Director found, inter alia, that the evi- dence of alleged misconduct could not be attribut- ed to the Union, nor did it warrant setting aside the election. Thereafter, Respondent filed a timely request for review of the Acting Regional Director's decision, alleging that its objections should not have been overruled, and, in the alternative, that a hearing on its objections should have been held. On August 26, 1981, the Board denied Respondent's request for review. As reflected in its answer to the complaint, its response to the Notice To Show Cause, and its op- position to the Motion for Summary Judgment. Re- spondent's defenses to the alleged violations of Section 8(a)(5) and (1) are that the election was conducted in an inappropriate unit, its objections were erroneously overruled, and, alternatively, a hearing thereon was required. However, these mat- ters were raised and fully considered during the underlying representation proceeding and were re- solved adversely to Respondent. 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 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. In its answer to the complaint, Respondent admits that it refused both the Union's request to Z See Pittsburgh Plaue (;laNu ('C :*VL.R.B., 313 U S 146. 162 (1941): Rules and Regulations of the Board, Scs 1(12.67(f) and 102I 6g9t) bargain and for information. It is well settled that the duty to bargain in good faith includes the duty to supply a labor organization information which is relevant to its duties as a collective-bargaining rep- resentative. Accordingly, we grant the General Counsel's 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, a New York corporation, with an office and place of business in Conyers, Georgia, is engaged in the manufacture of industrial batteries. During the past calendar year, a representative period, Respondent sold and shipped from its Con- yers, Georgia, facility goods valued in excess of $50,000 directly to customers outside the State of Georgia. 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. 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 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 employed by the Employer at its Conyers, Georgia facility including casters, pasting em- ployees, brushers, assemblers, finishers, plate wrappers, chargers, shipping and receiving employees, maintenance employees, truckers, janitors, quality control employees, oxide mill employees, but excluding service technicians, the engineering lab technician, the material control clerk, material control expediters, the payroll clerk, the plant engineer clerk, the reg- istered nurse, the secretary to the plant man- ager, the traffic secretary, the personnel secretary/receptionists, office clerical employ- 762 C & D BATTERIES DIVISION ees, guards and supervisors as defined in the Act. 2. The certification On May 1, 1981, 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 10, 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 June 26, 1981, 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 September 1, 1981, 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 September 10, 1981, 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, as well as to provide the Union with information relevant to its duty as collective-bar- gaining representative. Accordingly, we find that Respondent has, since September 10, 1981, 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. We also find that Respondent's re- fusal to provide the requested information likewise violates Section 8(a)(5) and (1). IV. THE EFFECT OF THE UNFAIR ILABOR PRACTICES UPON COMME RCI 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 commerce. V. THE RIEMEDY 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. We shall also order it to furnish, at the Union's request, the requested information relevant to unit employees: the names and addresses of em- ployees, their wages, benefits, working hours, vaca- tions, holidays, and job classifications. 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: CONCi.USIONS OF LAW 1. C & D Batteries Division, an Eltra 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 production and maintenance employees employed by the Employer at its Conyers, Geor- gia, facility including casters, pasting employees, brushers, assemblers, finishers, plate wrappers, chargers, shipping and receiving employees, main- tenance employees, truckers, janitors, quality con- trol employees, oxide mill employees, but exclud- ing service technicians, the engineering lab techni- cian, the material control clerk, material control expediters, the payroll clerk, the plant engineer clerk, the registered nurse, the secretary to the plant manager, the traffic secretary, the personnel secretary/receptionists, office clerical employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since June 26, 1981, 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- 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 10, 1981, 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 refusing on or about September 10, 1981, and at all times thereafter, to supply the Union with requested information relevant to unit em- ployees, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. 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. 8. 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, C & D Batteries Division, an Eltra Company, Con- yers, Georgia, 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 Agri- cultural Implement Workers of America, UAW, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Conyers, Georgia facility including casters, pasting em- ployees, brushers, assemblers, finishers, plate wrappers, chargers, shipping and receiving employees, maintenance employees, truckers, janitors, quality control employees, oxide mill employees, but excluding service technicians, the engineering lab technician, the material control clerk, material control expediters, the payroll clerk, the plant engineer clerk, the reg- istered nurse, the secretary to the plant man- ager, the traffic secretary, the personnel secretary/receptionists, office clerical employ- ees, guards and supervisors as defined in the Act. (b) Refusing to furnish the Union with requested information relevant to unit employees. (c) 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. 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) Upon request, furnish the Union with the re- quested information relevant to unit employees. (c) Post at its Conyers, Georgia, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 10, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. :- In the cvent 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 L abor Relations Board" shall read "Posted Pursu- anlt to a Judgment of the [United States C(ourt of Appeals Enforcing an Order of the National I abor Relations Board APPENDIX NOrICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WI l NOT refuse 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 Work- ers of America, UAW, as the exclusive repre- 764 C & 1) HATTERIES DI)VISION sentative of the employees in the bargaining unit described below. WEi Wlrl. NOT refuse to furnish the Union with information relevant to employees in the 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 Wll.L., 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 employed by the Employer at its Conyers, Georgia facility including casters, pasting employees, brushers, assemblers, finishers, plate wrappers, chargers, shipping and re- ceiving employees, maintenance employees, truckers, janitors, quality control employees, oxide mill employees, but excluding service technicians, the engineering lab technician, the material control clerk, material control expediters, the payroll clerk, the plant engi- neer clerk, the registered nurse, the secre- tary to the plant manager, the traffic secre- tary, the personnel secretary/receptionists, office clerical employees, guards and super- visors as defined in the Act. WE WILl., upon request, furnish the Union with information relevant to employees in the above-described unit. C & D BATTERIES DIVISION, AN EI.TRA COMPANY