Lauren Manufacturing Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lauren Manufacturing Company and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. Case 8-CA-15279 April 13, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS AND ZIMMERMAN Upon a charge filed on October 15, 1981, by United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO-CLC, herein called the Union, and duly served on Lauren Manufacturing Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a com- plaint and notice of hearing on November 18, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 7, 1981, following a Board election in Case 8-RC-12414, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about September 11, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so; and also that, since on or about September 11, 1981, Respondent has refused and continues to refuse to provide necessary and relevant bargaining information requested by the Union. On December 1, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 18, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 21, 1982, 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 8-RC-12414, 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 Electrosystems Inc., 166 NLRB 938 (1967), enfd. 388 F 2d 683 (4th Cir. 1968); Golden Age Beverage Ca, 167 NLRB 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 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Additionally, we hereby take official notice of the record in Case 8-RC-11818, which con- cerned the same parties and issues involved in Case 8-RC-12414. 261 NLRB No. 19 Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to the General Counsel's motion and a Cross-Motion for Summary Judg- ment. 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 and its response to the Notice To Show Cause, Respondent alleges that the General Counsel's Motion for Summary Judgment should be denied inasmuch as the under- lying representation election was invalid. Specifi- cally, Respondent asserts that its line operators, al- leged to be supervisors, were inappropriately al- lowed to vote in the election. Review of the record herein, including the record in Case 8-RC-12414, reveals that, upon a petition duly filed by the Union on February 20, 1981, a hearing was held before a hearing officer of the National Labor Relations Board. Thereafter, the Regional Director issued a Decision and Direc- tion of Election, wherein he found appropriate for the purposes of collective bargaining the peti- tioned-for unit of all production and maintenance employees, including regular part-time employees, line operators and quality control inspectors em- ployed by the Employer at its facility located at New Philadelphia, Ohio; excluding the scheduler, all office clerical employees, and professional em- ployees, guards, and supervisors as defined in the Act. On April 2, 1981, Respondent filed a request for review of the Regional Director's Decision and Direction of Election in which Respondent alleged, inter alia, that its line operators should not be in- cluded in the unit because they were supervisors within the meaning of Section 2(11) of the Act. By telegraphic order of April 29, 1981, the Board denied Respondent's request for review. On April 29 and 30, 1981, a secret-ballot election was held among employees in the aforementioned unit. The tally of ballots showed that there were 46 votes cast for the Union, 49 against, and 14 chal- lenged ballots, a number sufficient to affect the re- sults of the election. On May 27, 1981, the Region- al Director issued a Supplemental Decision and Order to Open and Count Challenged Ballots, wherein he ordered that the challenges to the bal- lots of all 14 line operators be overruled, and that their ballots be opened and counted. On June 8, 1981, Respondent filed a request for review of the 140 LAUREN MFG. COMPANY Regional Director's Supplemental Decision and al- leged, inter alia, that the Regional Director's find- ing that line operators were not supervisors was er- roneous and not supported by the record evidence. On June 18, 1981, the Board, by telegraphic order, denied Respondent's request for review. On June 27, 1981, the challenged ballots were opened and counted and the revised tally of ballots showed that of 109 ballots cast, 56 were cast for the Union and 53 against. Thereafter, on July 7, 1981, the Re- gional Director issued a Certification of Repre- sentative. 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. Accordingly, we grant the Motion for Summary Judgment. With respect to Respondent's alleged violation of a duty to provide requested bargaining information, Respondent admits that it has refused to provide information requested by the Union in a letter dated July 24, 1981, but defends its refusal on the grounds that the Union's certification is improper. For the above-stated reasons, we find such a de- fense to be without merit. The Union requested that Respondent furnish it with information con- cerning the total number of employees in the bar- gaining unit, their classifications, shifts and wages, their fringe benefits, including holidays and vaca- tions, any existing pension plan, and any existing insurance coverage. Respondent neither admits nor specifically denies that the information requested is necessary and relevant to the Union's function as the employees' representative. It is well established that such information is pre- sumptively relevant for purposes of collective bar- gaining and must be furnished upon request. 3 Fur- ' See Pittsburgh Plate Glass Coa v. N.LR.B., 313 U.S. 146. 162 (1941); Rules and Regulations of the Board, Secs. 102.67(0f) and 102.69(c). ' Villa Care, Inc.. d/b/a Edmond's Villa Care Center, 249 NLRB 705 (1980); White Farm Equipment Company, A Subsidiary of White Motor Corporation, 242 NLRB 1373 (1979); Dynamic Machine Ca, 221 NLRB 1140 (1975). thermore, Respondent has not attempted to rebut the relevance of the information requested by the Union. Accordingly, we find that no material issues of fact exist with regard to Respondent's refusal to furnish the information sought by the Union in its letter of July 24, 1981. Therefore, we grant the General Counsel's Motion for Summary Judgment, and deny Respondent's Cross-Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times ma- terial herein, an Ohio corporation engaged in the manufacture of extended rubber products at its fa- cility located in New Philadelphia, Ohio, the sole facility involved herein. Annually, in the course and conduct of its business operations, Respondent ships goods valued in excess of $50,000 directly from its New Philadelphia facility to points located outside the State of Ohio. 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. 11. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, 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, in- cluding regular part-time employees, line oper- ators and quality control inspectors employed by the Employer at its facility located at 2228 Reiser Avenue, S.E. New Philadelphia, Ohio, but excluding the scheduler, all office clerical employees, and professional employees, guards and superivors as defined in the Act. 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The certification On April 29 and 30, 1981, 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 8, 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 7, 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 July 24, 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 11, 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. Commencing on or about July 24, 1981, and at all times thereafter, the Union has requested Re- spondent to furnish the Union with the following information: Total number of employees in the bar- gaining unit; their classifications, shifts, and wages; their fringe benefits, including holidays and vaca- tions; any existing pension plan; and any existing insurance coverage. This information is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the unit employees. Since on or about September 11, 1981, Respondent has failed and refused to furnish the Union with the informa- tion described above. Accordingly, we find that Respondent has, since September 11, 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. 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. We shall also order Respondent, upon request, to furnish the Union with information which it requested on July 24, 1981. 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. Lauren Manufacturing Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including regular part-time employees, line opera- tors and quality control inspectors employed by the Employer at its facility located at 2228 Reiser Avenue, S.E., New Philadelphia, Ohio, but exclud- ing the scheduler, all office clerical employees, and 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 July 7, 1981, 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. 142 LAUREN MFG. COMPANY 5. By refusing on or about September 11, 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 11, 1981, and at all times thereafter, to furnish the Union with information requested by letter on July 24, 1981, concerning the total number of employees in the bargaining unit, their classifications, shifts and wages, their fringe benefits, including holidays and vacations, any existing pension plan, and any exist- ing insurance coverage, 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, 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, Lauren Manufacturing Company, New Philadel- phia, Ohio, its officers, agents, successors, and as- signs, 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 Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All production and maintenance employees, in- cluding regular part-time employees, line oper- ators and quality control inspectors employed by the Employer at its facility located at 2228 Reiser Avenue, S.E., New Philadelphia, Ohio, but excluding the scheduler, all office clerical employees, and professional employees, guards and supervisors, as defined in the Act. (b) Refusing to furnish the aforesaid labor orga- nization with the information requested by it on July 24, 1981, concerning the total number of em- ployees in the bargaining unit, their classifications, shifts and wages, their fringe benefits, including holidays and vacations, any existing pension plan, and any existing insurance coverage. (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 above-named labor organization with information which it requested for bargaining purposes on July 24, 1981. (c) Post at its office and place of business at 2228 Reiser Avenue, S.E., New Philadelphia, Ohio, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 8, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' 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 Pursu- ant 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 Rubber, Cork, Linoleum and Plas- tic Workers of America, AFL-CIO-CLC, as the exclusive representative of the employees in the bargaining unit described below. 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to furnish the above- named Union with information requested by it on July 24, 1981, concerning the total number of employees in the bargaining unit, their clas- sifications, shifts and wages, their fringe bene- fits, including holidays and vacations, any ex- isting pension plan, and any existing insurance coverage. 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, including regular part-time employees, line operators and quality control inspectors em- ployed by the Employer at its facility locat- ed at 2228 Reiser Avenue, S.E., New Phila- delphia, Ohio, but excluding the scheduler, all office clerical employees, and profession- al employees, guards and supervisors, as de- fined in the Act. WE WILL, upon request, furnish the above- named Union with the information which it re- quested on July 24, 1981. LAUREN MANUFACTURING COMPANY 144