MacDonald's Industrial Products, Inc.

264 NLRB No. 51 JZH 9187 Grand Rapids and Sparta, MI UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD MacDONALD'S INDUSTRIAL PRODUCTS, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW Case 7--CA--20514 DECISION AND ORDER Upon a charge filed on April 7, 1982, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called the Union, and duly served on MacDonald's Industrial Products, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on April 14, 1982, 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 proceeding. 264 NLRB No. 51 D--9187 With respect to the unfair labor practices, the complaint alleges in substance that on February 24, 1982, following a Board election in Case 7--RC--16317, 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 March 25, 1982, and at all times thereafter, Respondent has refused, and continues 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 22, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 17, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 24, 1982, 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 did not file a response to the Notice To Show Cause and therefore the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 1 Official notice is taken of the record in the representation proceeding, Case 7--RC--16317, 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 Co., 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. D--9187 Board has delegated its authority in this proceeding to a threemember 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, 2 Respondent denied the validity of the certification of the Union, admitted the Union's request to bargain, but did not assert any affirmative defense; and requested that the complaint in this matter be dismissed with prejudice. A review of the record herein, including the record in Case 7--RC--16317, reveals that, pursuant to a Stipulation for Certification Upon Consent Election approved on April 17, 1981, an election was conducted on May 20, 1981, which resulted in a vote of 55 for, and 52 against, the Union, with 4 challenged ballots. Thereafter on May 28, 1981, Respondent filed timely objections to conduct affecting the results of the election, alleging, in substance, that the Union prevented an employee from voting by informing him that since he was a guard he could not vote; made material misrepresentations to employees, on election day, that the Union was already voted in; threatened an employee with physical harm because he refused to sign an authorization card; and made material misrepresentations regarding Respondent's 2 Respondent noted that its correct address was 850 Pannell, NW., and not as alleged in the complaint. In his Motion for Summary Judgment, the General Counsel agrees that Respondent is correct. We have noted the correction herein. D--9187 profits to which Respondent had no opportunity to make a rebuttal. Further, Respondent asserted that the Union, by these and other actions, restrained and coerced employees and destroyed the laboratory conditions of the election. On June 1, 1981, after a preliminary investigation of Respondent's objections and of the four challenged ballots, the Regional Director concluded that said objections and challenges raised ''substantial and material factual issues, including credibility resolutions,' and issued a notice of hearing. The hearing was held on June 15, 16, and 22, 1981. On July 22, 1981, the Hearing Officer issued his report on determinative challenges and objections, wherein he recommended that the challenges to the ballots of Steve Bishop, 3 Vern Wallace, and Dale Proper be overruled, opened, and counted; that the challenge to the ballot of Joyce Hulbert be sustained; and that a revised tally of ballots be issued. The Hearing Officer further recommended, depending upon the outcome of the opening of the challenged ballots, that all of Respondent's objections be overruled in their entirety. On August 3, 1981, Respondent filed timely exceptions to the Hearing Officer's report on determinative challenges and objections, which, in essence, iterated the substance of one of its objections that the Union disenfranchised an employee. On February 17, 1982, pursuant to the Board's 3 At the commencement of the hearing the Union withdrew its challenge, and the parties stipulated that Bishop was an eligible voter and not a guard within the meaning of the Act. D--9187 adoption of the Hearing Officer's report and recommendations, 4 the Regional Director issued a revised tally of ballots which resulted in a vote of 56 for, and 54 against, the Union, with 1 nondeterminative challenged ballot; and on February 24, 1982, the said Regional Director issued a Certification of Representative. As indicated supra, Respondent has admitted the factual and legal allegations in the complaint and has not filed a response to the Notice To Show Cause. Therefore, the allegations of the Motion for Summary Judgment stand uncontroverted, and the General Counsel's request for findings of fact and conclusions of law based on the pleadings stand unopposed. 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. 5 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 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 4 Not reported in volumes of Board Decisions. 5 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). D--9187 issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 Respondent Respondent, a Michigan corporation with its principal place of business in Grand Rapids, Michigan, and another facility in Sparta, Michigan, is engaged in the manufacture, sale, and distribution of automotive and appliance components and related products. During the past calendar year, Respondent produced, sold, and distributed products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped 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 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, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2 (5) of the Act. D--9187 III. The Unfair Labor Practices A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees at Respondent's 850 Pannell, NW., Grand Rapids, Michigan, and 9983 Sparta Avenue, Sparta, Michigan, facilities; but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On May 20, 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 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on February 24, 1982, 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 23 and 24, 1982, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about March 25, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the D--9187 exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since March 25, 1982, 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, Respondent 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 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 commerce. 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 D--9187 initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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. MacDonald's Industrial Products, Inc., 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 employees at Respondent's 8 50 Pannell, NW., Grand Rapids, Michigan, and 9983 Sparta Avenue, Sparta, Michigan, facilities; but excluding 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 February 24, 1982, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit D--9187 for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about March 25, 1982, 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, Respondent 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 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 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 Relations Board hereby orders that the Respondent, MacDonald's Industrial Products, Inc., Grand Rapids and Sparta, 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 9187 Agricultural Implement Workers of America, UAW, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees at Respondent's 850 Pannell, NW., Grand Rapids, Michigan, and 9983 Sparta Avenue, Sparta, Michigan, facilities; but excluding 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 understanding is reached, embody such understanding in a signed agreement. (b) Post at its Grand Rapids and Sparta, Michigan, facilities copies of the attached notice marked ''Appendix. 116 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's 6 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. 9187 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 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. Dated, Washington, D.C. September 29, 1982 Howard Jenkins, Jr., Member Don A. Zimmerman, Member Robert P. Hunter, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9187 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 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 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 abovenamed Union, as the exclusive representative 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 agreement. The bargaining unit is: All full-time and regular part-time employees at the Employer's 8 50 Pannell, NW., Grand Rapids, Michigan, and 9983 Sparta Avenue, Sparta, Michigan, facilities; but excluding office clerical employees, prefessional employees, guards and supervisors as defined in the Act. MacDONALD'S INDUSTRIAL PRODUCTS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Patrick V. McNamara Federal Building, 477 Michigan Avenue, Room 300, Detroit, Michigan 48226, Telephone 313--226-- 3244.