Majestic Molded Products, Inc.

MAJESTIC MOLDED PRODUCTS Majestic Molded Products, Inc. and United Industry Workers, Local 424 formerly known as United Brotherhood of Industrial Workers, Local 424. Case 29-CA-12430 13 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union 19 May 1986, the General Counsel of the National Labor Rela- tions Board issued a complaint 4 June 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 6 March 1986, fol- lowing a Board election in Case 29-RC-5899, 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 26 March 1986 the Company has refused to bargain with the Union. On 11 June 1986 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 13 August 1986 the General Counsel filed a Motion for Summary Judgment. On 19 August 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. 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 Respondent admits that United Industry Workers, Local 424 re- quested it to bargain collectively and that it re- fused. The Respondent denies, inter alia, commerce facts, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that .the Board certified Local 424 as the exclusive collective-bargaining representative of its unit employees. The Respondent stated that it lacks knowledge that Local 424 changed its name from United Brotherhood of Industrial Workers, 123 Local 424 to United Industry Workers, Local 424,1 and that Local 424 is a labor organization within the meaning of Section 2(5) of the Act. The Re- spondent asserts as affirmative defenses that United Industry Workers, Local 424 was not properly cer- tified by the Board as the collective-bargaining rep- resentative of employees in an appropriate unit and that it is not required to bargain with the Union be- cause over 3 years have elasped since the election, there has been extensive turnover of employees since the election, and the election was conducted in an atmosphere of fear and coercion. The General Counsel contends that the denials in the Respondent's answer either raise no issues which were not or could not have been litigated in the underlying representation case, or are conclu- sively proved by the exhibits attached to the Motion for Summary Judgment. The General Counsel argues that concerning the Respondent's denial of commerce facts, the Respondent entered into a Stipulated Election Agreement 31 March 1983, which admitted the commerce facts alleged in the complaint, as well as the conclusion that the Respondent is engaged in interstate commerce. As to the Union's name change, the General Counsel argues that the Respondent has been supplied with an affidavit by the Union's president relating to the name change and that the Respondent has no infor- mation that controverts the affidavit. Therefore, the General Counsel maintains that no hearing on the name change is required. The General Counsel submits that the status of the Union as a labor or- ganization could have been litigated in the repre- sentation proceeding. The General Counsel con- tends that the Respondent's' other defenses are without merit. We agree with the General Counsel. The record, including the record in Case 29-RC-5899, reveals that an, election was hel'd' 26 April 1983 pursuant to a ,Stipulated Election Agreement. The tally of bal- lots shows that of approximately 155 eligible voters, 64 cast valid ballots for the Union and 61 cast valid ballots for' the Intervenor, Local 222, Production, Service and Sales 'District Council, Hotel Employees & Restaurant Employees Interna- tional Union, AFL-CIO, with 1 void and 1 nonde- terminative challenged ballot. The Intervenor, filed objections to the election and on 31 May 1983 the Regional Director issued a report reeornmending that the Intervenor's objections be overruled and that the Union be certified. The Intervenor timely filed with the Board exceptions to the Regional Di- ' On 13 June 1986 , the Respondent filed a motion for bill of particulars concerning the Union's alleged name change which was denied by the Acting Associate Chief Administrative Law Judge on 31 July 1986. 282 NLRB No. 21 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector's recommendations. On 19 February 1985 the Board issued a Decision and Order Directing Hearing adopting the Regional Director's recom- mendation that the Intervenor's Objections 1 and 2 be overruled and directing a hearing on the Inter- venor's Objection 3. A hearing was held and on 20 December 1985 the hearing officer issued a report, recommending that Objection 3 be overruled. On 31 December 1985 the Intervenor filed exceptions to the hearing officer's report. On 6 March 1986 the Board issued a Supplemental Decision and Cer- tification of Representative, adopting the hearing officer's recommendations and certifying the Union as the collective-bargaining representative of the unit employees. By letters dated 25 March and 22 April 1986 the Union requested the Company to bargain. Since 26 March 1986 the Respondent has failed to meet and bargain with the Union. In her Motion for Summary Judgment, the Gen- eral Counsel argues that the Respondent is refusing to bargain merely to test the Union's certification by the Board in Case 29-RC-5899. In its response to the Notice to Show Cause, the Respondent continues to dispute the issue of juris- diction. The Respondent argues that because 3-1/2 years have elapsed since the Respondent entered into the Stipulated Election Agreement, it cannot be held as a matter of law that the stipulation is still valid. With regard to the Union's alleged name change, the Respondent argues that it is entitled to cross-examine the Union's president and subpoena documents on this issue. The Respondent contends that the issue of the Union's labor organization status was not resolved by the Stipulated Election Agreement because that stipulation pertained only to United Brotherhood of Industrial Workers, Local 424, not United Industry Workers, Local 424. The Respondent maintains that until it is held that these two organizations are identical there can be no conclusion of labor organization status based on the stipulation. The Respondent further main- tains that the stipulation' is no longer valid because of the 3-1/2-year time lapse. The Respondent con- tinues to argue that the Union was -not properly certified by the ' Board' because the election was held in an atmosphere of fear and coercion. The Respondent also pursues its contention that because of turnover in the unit bargaining should not be re- quired. It is well settled that in the absence of newly dis- covered and 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 that ' were or could have been litigated in a prior representation proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) 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 circumstances 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. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a New York corporation, is en- gaged in the manufacture, sale, and distribution of injection molded products at its facility in Hol- brook, New York, where, during the past calendar year, a representative period, it manufactured, sold, and distributed at its Holbrook plant products valued in excess of $50,000 of which products valued in excess of $50,000 were shipped from the plant in interstate commerce directly to States of the United States other than the State in which it is located. We fmd that the Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that the Union2 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification3 Following the election held 26 April 1983 the Union was certified 6 March 1986 as the collective- bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production, maintenance, shipping and receiving employ- ees employed by the Employer, excluding all other employees, tool room employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. 2 We find that despite its name change United Industry Workers, Local 424 is the same labor organization as United Brotherhood of Indus- trial Workers, Local 424. 2 We amend the certification to reflect the Union's name change to United Industry Workers, Local 424 MAJESTIC MOLDED PRODUCTS 125 B. Refusal to Bargain- Since 25 March 1986 the Union has requested the Company to bargain, and since 26 March 1986 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 26 March 1986 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate 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 shall 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 (30th Cir. 1965).4 ORDER - The National Labor Relations Board orders that the Respondent, Majestic Molded Products, Inc., Holbrook, New York, its officers, agents, succes- sors, and assigns, shall' 1. Cease and desist from (a) Refusing to bargain with United Industry Workers, Local 424 formerly known as United Brotherhood of Industrial Workers, Local 424 as the exclusive bargaining representative of the em- ployees in the bargaining unit. (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. 4 The General Counsel seeks a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request. ",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 full-time and regular part-time production, maintenance, shipping and receiving employ- ees employed by the Employer, excluding all other employees, tool room employees, guards, and supervisors as defined in the Act. (b) Post at its facility in Holbrook, New York, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 29, 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 United In- dustry Workers, Local 424 formerly known as United Brotherhood of Industrial Workers, Local 424 as the exclusive representative of the employ- ees 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: 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time production, ployees, tool room employees, guards, and su- maintenance, shipping and receiving employ- pervisors as defined in the Act. ees employed by us, excluding all other em- MAJESTIC MOLDED PRODUCTS, INC.