Bell Foundry Co.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bell Foundry Company and Wholesale Delivery Drivers and Salesmen Local 848 , International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 21-CA- 24052 29 January 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed by the Union 24 July 1985, the General Counsel of the National Labor Rela- tions Board issued a complaint 9 August 1985 against the Company, Bell Foundry Company, al- leging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 26 June 1985, fol- lowing a Board election in Case 21-RC-16868, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 15 July 1985 the Company has re- fused to bargain with the Union. On 14 August 1985 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 10 October 1985 the General Counsel filed a Motion for Summary Judgment. On 15 October 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On 29 October 1985 the Company filed a brief with the Board opposing the General Counsel's motion. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answer to the complaint, the Company admits that the Union was certified by the Board as bargaining representative of its employees in an ap- propriate unit and that it has refused to bargain with the Union. However, in its answer and brief in opposition to the General Counsel's motion, the Company contends that the Board's delay in direct- ing a hearing on its objection in Case 21-RC-16868 amounted to a denial of due process and that a hearing is necessary to determine what effect, if any, the delay may have had on the testimony of the Company's witnesses in the above representa- 278 NLRB No. 44 tion hearing. It further contends that a high turn- over rate among its unit employees affords it a rea- sonable basis for doubting the Union's majority status and that it is entitled to a hearing to present evidence to rebut the presumption of the Union's majority status. The record, including the record in Case 21- RC-16868, reveals that on 29 October 1981 the Company, following an election in the above repre- sentation case, filed objections to the election.' On 9 December 1981 the Regional Director for Region 21 issued a Report on Objections recommending that the Company's objections be overruled in their entirety, and that the Union be certified as the col- lective-bargaining representative of the Company's unit employees. On 22 December 1981 the Compa- ny filed timely exceptions to the Regional Direc- tor's report with the Board. On 31 January 1985 the Board, in an unpublished decision, directed that a hearing be held to resolve issues raised by the Company's Objection 1, and adopted the Regional Director's recommendation to overrule the remaining objections. Following a hearing on the Company's Objec- tion 1, the hearing officer on 4 April 1985 issued a report recommending that the objection be over- ruled and that the Board issue a Certification of Representative. On 16 April 1985 the Company filed timely exceptions to the hearing officer's report excepting, inter alia, "to the delay in the Board's processes" in directing a hearing on its ob- jection.2 On 26 June 1985 the Board issued an un- published decision fording no merit to the Compa- ny's exceptions, adopting the hearing officer's rec- ommended overruling of the Company's Objection 1, and certifying the Union as the exclusive bar- gaining representative of the Company's unit em- ployees. By letter dated 9 July 1985 the Union requested that the Company bargain with it concerning the terms and conditions of employment of employees in the unit certified by the Board on 26 June 1985. For the above-stated reasons the Company, on 15 July 1985, refused, and is continuing to refuse, to bargain with the Union. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or 1 The Company filed four objections Objection I alleged that union officials and supporters threatened employees with violence and reprisals if they did not support the Union and its activities; Objection 2 alleged that union officials forced employees to sign authorization cards, Objec- tion 3 alleged that the Union, at a meeting 24 hours prior to the election, promised employees certain benefits to obtain their support; and Objec- tion°4 alleged certain misconduct by the Board agent supervising the election. 2 Although it excepted generally to the Board's delay in directing a hearing on its objection, the Company presented no argument in its brief in support of that exception BELL FOUNDRY CO. 283 special circumstances, a respondent in, a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(fj and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation.pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any. special circumstances3 that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this ' unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment.4 - On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company is a California corporation en- gaged in the operation of a foundry in South Gate, California. In the course and conduct of its busi- ness, the Company annually purchases and receives goods and products valued in excess of $50,000 di- rectly from suppliers located outside the State of California. We find that the Company is` an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is ,a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held on 23 October 1981, the Union was certified on 26 June 1985 as the col- lective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees, shipping and receiving employees, warehouse- men and truck drivers employed by the Em- 3 The Company's contention, that it is entitled to a hearing to deter- mine if the Union still retains a majority support due to an alleged high turnover rate among unit employees, is without merit. A union's contin- ued majority status is conclusively presumed' to exist for 1 year from the date of certification and employee turnover does not justify an employ- er's refusal to bargain Washington Street Foundry, 268 NLRB 338 (1983), Golden Coach, 266 NLRB 62, 64 (1983) 4 Member Babson did not participate in the underlying representation proceeding. In joining his colleagues in granting the General Counsel's Motion For Summary Judgment, he notes that, to the extent that the Company attacks the underlying representation proceeding, it is not enti- tled to litigate in this proceeding issues which could have been or were litigated in the underlying proceeding `ployer at its facilities located in South Gate, California; excluding all- other employees, office clerical employees , professional employ- ees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section_ 9(a) of the Act. B. Refusal to Bargain Since .9 July 1985 the Union has requested the Company to bargain, and since 15 July 1985 the Company has refused. We find that this refusal constitutes an-unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 15 July 1985 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting -commerce within the - meaning of Section 8(a)(5) -and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, -to bargain on request with the Union, and, if an understanding is- reached; to embody the understanding -in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shalt construe the ini- tial period of the certification .as beginning the date the- Respondent `begins to bargain in good faith with the Union. Mar-Jac' Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Bell Foundry Company, South Gate, California, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Wholesale Delivery Drivers and Salesmen Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America as the exclusive bar- gaining representative of the employees- in the bar- 11 1 gaining unit. 1 284 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees, shipping and receiving employees, warehouse- men and truck drivers employed by the Em- ployer at its facilities located in South Gate, California; excluding all other employees, office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. (b) Post at its facility in South Gate, California, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not-altered, defaced, or covered by any other material. 5 If 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 Nation- al 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 " (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Wholesale Delivery Drivers and Salesmen Local 848, Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen & Helpers of America as the exclusive representative of the' employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees, shipping and receiving employees, warehouse- men and truck drivers employed by the Em- ployer at its facilities located in South Gate, California; excluding all other employees, office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. BELL FOUNDRY COMPANY