Romalite Co., Inc.

ROMALITE COMPANY, INC. Romalite Company, Inc. and Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 21-CA- 15273 June 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on December 1, 1976, by Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Romalite Company, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on December 14, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(aX5) 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 19, 1976, following a Board election in Case 21-RC- 14683, 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 November 17, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On December 23, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admitted the allega- tions pertaining to jurisdiction but denied that the Union is a labor organization. Respondent denied that assistant foremen are included in an appropriate unit and alleged that they are supervisors. Respon- dent also denied that the Union represented a majority of employees in the appropriate unit, for the purposes of collective bargaining. Respondent fur- I Official notice is taken of the record in the representation proceeding, Case 21-RC-14683, 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 (C.A. 4, 230 NLRB No. 75 ther admitted that it had refused to supply informa- tion requested by the Union about employees in the unit, but denied that it had refused to bargain collectively in good faith, and denied that it had committed any unfair labor practice. Respondent raised two affirmative defenses: (1) the Union is in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and (2) Respondent's objections to the conduct of the election require a hearing. On January 19, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 9, 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. Respon- dent thereafter filed a response to Notice To Show Cause, entitled "Respondent's Opposition to Motion for Summary Judgment." 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 response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis of preelection conduct by a Board agent, which Respondent alleges improperly influenced the results of the election. Specifically, Respondent objects to the Board agent's alleged solicitation of employees to act as an observer for the Union. Respondent also contends that the Union engages in racially discrimi- natory practices. As to both matters, Respondent contends that a hearing is required. Review of the record herein reveals that, pursuant to the Regional Director's Decision and Direction of Election in Case 21-RC-14683, an election was held on August 3, 1976, and was won by the Union. On August 10, 1976, Respondent filed timely objections to conduct affecting the results of the election. In substance these objections alleged various misrepre- sentations by the Union, as well as the above matters of Board agent solicitation and racial discrimination by the Union. Following an investigation, the Regional Director issued a Supplemental Decision and Certification of Representative on October 19, 1976, certifying the Union as the collective-bargain- ing representative of Respondent's employees in 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); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit found appropriate. Respondent filed a request for review of the Supplemental Decision and Certifi- cation of Representative with the Board, which subsequently issued an order on November 29, 1976, denying Respondent's request for review. In denying that request, the Board necessarily determined that Respondent raised no issues warranting an evidenti- ary hearing in the representation proceedings Following a request by the Union on or about November 2, 1976, that Respondent furnish it with information with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, of employees in the appropriate unit, Respondent refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the certified bargaining unit. Respondent has refused to bargain with the Union since November 17, 1976.3 In response to a Motion for Summary Judgment, an adverse party may not rest on denials in its pleadings, but must present specific facts which demonstrate that there are material facts in issue which require a hearing.4 Respondent in the instant case presented no material issues or facts not admitted or previously determined. 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 issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment.6 On the basis of the entire record, the Board makes the following: 2 Globe Security Services, Inc., 221 NLRB 596, 597 (1975), enforcement denied on other grounds 548 F.2d 1115 (C.A. 3, 1977); see also Allied Meat Company, 220 NLRB 27 (1975). 3 See Richmon4 Division of Pak-Well, 206 NLRB 260 (1973), where the Board held that a request for information relevant to collective bargaining constitutes a request for bargaining, and that a refusal to honor such a request constitutes a refusal to bargain. 4 Western Electric Company, Hawthorne Works, 198 NLRB 623 (1972). 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). 6 Bell & Howell, 230 NLRB 420 (1977), where the Board held that all fair representation claims must be adjudicated under Sec. 8(b) of the Act and not as a defense to an 8(aX5) proceeding testing the validity of a FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent is a California corporation en- gaged in the manufacture of plastic molds in Compton, California. In the conduct of its business operations during the past 12-month period, which period is representative, Respondent purchased and received goods valued in excess of $50,000 directly from suppliers 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 Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees, including operators, floor personnel, inspectors, moldmakers and assistant moldmakers, janitors, maintenance and setup personnel, truckdrivers, warehouse personnel, lead personnel, and assis- tant foremen, employed by the Employer at its facility located at 2030 Vista Bella Way, Comp- ton, California; excluding office clerical employ- ees, professional employees, guards, and supervi- sors as defined in the Act. certification of representative, or in a representation proceeding. Member Jenkins dissented in that case, but agrees with his colleagues in the instant case because Respondent has presented no evidence that the Union has engaged in discriminatory practices. See also Handy Andy, Inc., 228 NLRB 447 (1977), Member Jenkins dissenting. As noted, in its answer to the complaint, Respondent, inter alia, denies the Union's status as a labor organization and claims that assistant foremen are not properly included in the appropriate unit. However, these issues were litigated at the hearing conducted prior to the Regional Director's Decision and Direction of Election in the underlying representation case, and may not be relitigated herein. Teledyne, Landis Machine, 212 NLRB 73, 74, fn. 4 (1974). 510 ROMALITE COMPANY. INC. 2. The certification On August 3, 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 21, 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 19, 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 November 2, 1976, 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, and to supply it with certain relevant and necessary bargain- ing information concerning said employees, includ- ing but not limited to, their names, classifications, wage rate, length of employment and fringe benefits. Commencing on or about November 17, 1976, and continuing 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, and to supply the information requested. Accordingly, we find that Respondent has, since November 17, 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 to supply the information requested by the Union regarding its employees as described above, and that, by such refusals, 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 Romalite Company, 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, supply the requested information and 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. Romalite Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including operators, floor personnel, inspectors, moldmakers and assistant moldmakers, janitors, maintenance and setup personnel, truckdrivers, warehouse personnel, lead personnel, and assistant foremen, employed by the Employer at its facility located at 2030 Vista Bella Way, Compton, Califor- nia; 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 October 19, 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 November 17, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and to 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supply information requested by the Union includ- ing, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of said employees, 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 refusals 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, Romalite Company, Inc., Compton, 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 Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, including operators, floor personnel, inspectors, moldmakers and assistant moldmakers, janitors, maintenance and setup personnel, truckdrivers, warehouse personnel, lead personnel, and assis- tant foremen, employed by the Employer at its facility located at 2030 Vista Bella Way, Comp- ton, California; excluding office clerical employ- ees, professional employees, guards, and supervi- sors as defined in the Act. (b) Refusing to supply the aforesaid labor organi- zation with information necessary for collective bargaining, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of the employees in the above- described unit. (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, supply the above-named labor organization with information necessary for collec- tive bargaining, including, but not limited to, the names, classifications, wage rates, length of employ- ment, and fringe benefits of the employees in the above-described unit. (c) Post at 2030 Vista Bella Way, Compton, California, 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 representa- tive, 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. (d) 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 Van Storage Drivers, Packers, Warehousemen & Helpers Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to supply the aforesaid labor organization with information necessary for collective bargaining, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of the employees in the bargaining unit described below. 512 ROMALITE COMPANY, INC. 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, supply the aforesaid labor organization with information necessary for collective bargaining, including, but not limited to, the names, classifications, wage rates, length of employment, and fringe benefits of the employees in the bargaining unit described below. 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 operators, floor personnel, inspec- tors, moldmakers and assistant moldmakers, janitors, maintenance and setup personnel, truckdrivers, warehouse personnel, lead per- sonnel, and assistant foremen, employed by the Employer at its facility located at 2030 Vista Bella Way, Compton, California; excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. ROMALITE COMPANY, INC. 513