FDI, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD FDI, Inc. and International Union, United Automo- bile, Aerospace and Agricultural Implement Work- ers of America-UAW. Case 21-CA-15602 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY AND WALTHER Upon a charge filed on April 1, 1977, by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America-UAW herein called the Union, and duly served on FDI, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on April 6, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 Adminis- trative 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 December 7, 1976, following a Board election in Case 21-RC- 14566 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about March 30, 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 May 2, 1977, Respondent filed its answer to the complaint, admitting in part, and denying in part, the allegations in the complaint and alleging certain affirmative defenses. On June 9, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 20, 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. 3 I On May 20, 1977, the Regional Director for Region 21 issued an order postponing hearing in which he ordered that the hearing, heretofore set for July 6, 1977, be postponed indefinitely. 2 Official Notice is taken of the record in the representation proceeding, Case 21-RC 14566, 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 L 7 Eleciros"stems, 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 (C.A. 5, 1969): Intert)pe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); 231 NLRB No. 168 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 opposition to the General Counsel's Motion for Summary Judg- ment, Respondent admits the complaint's jurisdic- tional and procedural allegations, and its refusal of the Union's postcertification request for bargaining.4 However, Respondent denies the material allegations of the complaint (including the appropriateness of the bargaining unit) and sets forth several affirmative defenses, all of which relate to its contentions that, because of certain factual or procedural errors in the underlying representation proceeding, the Union was improperly certified. On December 17, 1976, Re- spondent timely filed a request for review of the Regional Director's Second Supplemental Decision and Certification of Representative. The Board by telegraphic order dated February 2, 1977, denied Respondent's request for review in its entirety, as it raised "no substantial issues warranting review." As the Board stated in Frito-Lay, Inc., 161 NLRB 950 at 952-953 (1966): It is well settled that, in the absence of any evidence unavailable at the time of the represen- tation proceeding or any newly discovered evi- dence, the Board will not reconsider in a subsequent refusal-to-bargain proceeding matters which have been disposed of in a prior, related representation case. This is equally true where the representation proceeding was processed under Section 3(b) of the Act, especially where the Board has denied a request for review of the Regional Director's decision. [Footnotes omitted.] As noted above, it is well settled that in the absence of newly discovered or previously unavailable evi- dence 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 Follen Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec. 9(d) of the NLRA, as amended. :' The response is entitled "Motion in Opposition to General Counsel's Motion for Summary Judgment." I Respondent's March 30, 1977, letter to the Union stated that the "Company position remains that ... the National Labor Relations Board improperly certified your Union as the bargaining representative of employees employed at the Company." 1010 FDI, INC. have been litigated in a prior representation proceed- ing.5 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.6 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, is engaged in the manufacture of air and industrial filter equipment at its facility in City of Industry, California. In the normal course and conduct of its business operations described above, Respondent annually sells and ships goods valued in excess of $50,000 directly to customers located outside the State of California. 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 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. , 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). i Respondent contends, inter alia, that the Regional Director erred in declining to enforce a subpoena duces tecum seeking voluminous information as to "ant allegations of discriminatory conduct based on sex, age, race or national origin" made against the Union, "regardless of whether the allegation resulted in a determination favorable or unfavorable" to the Union. Respondent further contends that the Hearing Officer acted "in an unlawful manner" by ruling that the evidence sought by Respondent was not relevant. The Hearing Officer based his ruling upon a record showing(l) that the Union involved (Region 6 of the International) includes in its wide jurisdiction the States of Alaska, Arizona. California, Hawaii, Idaho. Nevada. Oregon. Utah, and Washington; (2) that the Union does not maintain a hiring hall, and union membership is thus obtained through voluntary means or through union-security clauses requiring membership by 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, including all production workers, material han- dlers, machinists, machine operators, the return merchandise and inspection employee, the screw machine set-up employee, the screw machine helper, warehousemen, and janitors employed by the Employer at its 18421 East Railroad Street, City of Industry, California, facility; excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On June 3, 1977, 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 21, 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 December 7, 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 March 15, 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 30, 1977, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and employees hired by various employers; (3) that the Union does not maintain an apprenticeship program: and (4) that in the past 5 years only one such charge had been filed against the Union. and that charge had been withdrawn. Thus, even under the Board's Decisions in Grant Furniture Plaza. Inc., 213 NLRB 410 (1974), and Bekins Moving d Storage Co. of Florida, Inc., 211 NLRB 138 (1974), the Hearing Officer's rulings herein were clearly correct, as affirmed by the Regional Director and by the Board when it subsequently denied Respondent's request for review on this issue. Moreover, as the Board recently stated in Bell d Howell Company. 230 NLRB 420 (1977), issues involving alleged invidious discrimination by a labor organization "are prematurely raised in a representation proceeding or in a proceeding, such as this, where the employer refuses to bargain in order to test the underlying certification." (See also Handy Andy, Inc., 228 NLRB 447, overruling Bekins. supra.) Member Jenkins does not rely on Bell & Howell or Handy Andy, Inc. 1011 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 30, 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, FDI, Inc., set forth in section III, above, occurring in connection with its operations 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. FDI, Inc., is an employer engaged in com- merce 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, including all production workers, material handlers, machinists, machine operators, the return merchan- dise and inspection employee, the screw machine set- up employee, the screw machine helper, warehouse- men, and janitors employed by Respondent at its 18421 East Railroad Street, City of Industry, Califor- nia, facility; excluding all office clerical employees, 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 December 7, 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 March 30, 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, FDI, Inc., City of Industry, California, 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 of America-UAW as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including all production workers, material han- dlers, machinists, machine operators, the return 1012 FDI, INC. merchandise and inspection employee, the screw machine set-up employee, the screw machine helper, warehousemen, and janitors, employed by the Employer at its 18421 East Railroad Street, City of Industry, California, facility; excluding all office clerical employees, 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 City of Industry, California, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 21, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 of Ameri- ca-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 production and maintenance employees, including all production workers, material handlers, machinists, machine operators, the return merchandise and inspection employ- ee, the screw machine set-up employee, the screw machine helper, warehousemen, and janitors, employed by the Employer at its 18421 East Railroad Street, City of Industry, California, facility; excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. FDI, INC. 1013