United States Aviex Co.

'UNITED STATES AVIEX CO. 841 United States Aviex Company and International Union of Electronic, Electrical, Technical, Sala- ried and Machine Workers, AFL-CIO. Case 7- CA-26320 16 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS Upon a charge filed by the Union 27 October 1986, the General Counsel of the National Labor Relations Board issued an amended complaint 25 February 1987 against the Company, the Respond- ent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 16 May 1986, fol- lowing a Board election in Case 7-RC-16853, 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); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 24 September 1986, the Company has refused to bargain with the Union. On 5 March 1987 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 14 May 1987 the General Counsel filed a Motion for Summary Judgment. On 20 May 1987 the Board issued an order transferring the proceed- ing 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 Company denies, inter alia, that the Union is the exclusive collective-bargaining representative of its employ- ees. In its opposition to the Motion for Summary Judgment, the Company challenges the Union's certification on the ground that determinative chal- lenged ballots cast by employees Marion Glaser and Ronald Zebell were erroneously overruled and that its objection that another determinative vote by employee Regenos was coerced by Union Orga- nizers Brown and Brady was improperly overruled. i The representation case issues were consolidated with the unfair labor practice allegations for hearing before an administrative law judge. The judge's decision was affirmed in relevant part by the Board's Deci- sion and Order reported at 279 NLRB 826 (1986) The Company also contends that, because of the substantial employee turnover and unit reduction, the, closeness of the election, and the lapse of more than' 3 years between the election and the alleged refusal to bargain, the election results are unrepre- sentative of present employee sentiment, and the complaint should therefore be dismissed. The Gen- eral Counsel contends that all material issues have been previously decided in the underlying repre- sentation case. Our review of the record in this proceeding, in- cluding the record in Case 7-RC-16853, reveals that, pursuant to a Stipulated Election Agreement, an election was conducted on 17 February 1983. The tally of ballots showed 19 votes cast for and 17 against the Union, with 5 challenged ballots, a number sufficient to affect the election ,results. The Company and Union filed timely objections to con- duct affecting the results of the election, which the Regional Director consolidated with unfair labor practice complaint allegations against the Company (in Cases 7-CA-21791 and 7-CA-22573) and set for hearing before an administrative law judge. On 24 October 1984 the, administrative law judge issued his decision, recommending, inter alia, that the Company's challenges to the ballots of Marion Glaser and Ronald Zebell be overruled, and find- ing that in-plant organizing committee members Brown and Brady were not shown to be acting for the Union while soliciting employee Regenos. The judge therefore concluded that the Company failed to show that Brown's and Brady's asserted threats to Regenos2 created a general atmosphere of fear and reprisal and accordingly overruled the objec- tion.The Company filed exceptions with the Board to those adverse findings. On 30 April 1986 the Board issued a Decision and Order in this proceed- ing (279 NLRB 826). In adopting the judge's find- ing that Brown's and Brady's conduct did not war- rant setting the election aside, the Board found the statements made by organizing committee members Brown and Brady "unobjectionable irrespective of whether they were acting as agents of the Union." (Id. at fn. 3.) Subsequent to the Board's Decision and Order, the Regional Director for Region 7 issued a Certifi- cation of Representative in Case 7-RC-16853 on 16 May 1986. 2 The judge found that Brown and Brady told employee Regenos, while soliciting his support for the Union, that "They were members of the board, the committee . [t]hat actually had put the union together," and that Brady further warned Regenos that he would be sorry if he did not join because they were going to get the thing in and would know who was supporting the thing and who was not Concerning Brown's earlier threat that he would hurt Regenos, which occurred outside the critical period, the judge found that it was not properly pled before the Board. 285 NLRB No. 113 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A review of the record reveals that the Compa- ny is attempting to relitigate issues that were con- sidered by the Board in the prior proceeding and found to be without merit.3 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 circumstances4 that would require the Board to re- examine the decision made in the representation proceeding. We therefore conclude that the Com- pany has not raised any issue that is properly litiga- ble in this unfair labor practice proceeding. Ac- cordingly, 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 Michigan corporation, manu- factures, sells, and distributes chemicals and other related products at its facility in Niles, Michigan, where in the year ending 31 December 1985 it manufactured, sold, and distributed products valued in excess of $50,000, which were shipped from its facility directly to points located outside the State of Michigan. We find that the Company is an employer 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 mean- ing of Section 2(5) of the Act. S As the Board's overruling of the Company's objection relating to threats by Brown and Brady was not based on their agency status, we find no merit in the Company's request for reconsideration of that issue in light of the Board's recent holding in Davlan Engineering, 283 NLRB 803 (1987) 4 We find no merit in the Company's contention that the complaint should be dismissed because employee turnover, reduction of the unit, and the long-time lapse have undermined the Union's slim margin of vic- tory in the 1983 election. It is well settled that the Union's continued ma- jority status is conclusively presumed to exist for the 1-year certification period, which does not begin until the Company begins bargaining in good faith; and neither employee turnover epr lapse of time justifies an employer's refusal to bargain See Bel! Foundry Co, 278 NLRB 282 (1986) (turnover), Golden Coach, 266 NLRB 62, 64 fn. 10 (1983). II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 17 February 1983, the Union was certified 16 May 1986 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees, including labora- tory employees, quality control employees, shipping and receiving employees, truckdrivers and custodians employed by the Employer at its 1800 Terminal Road, Niles, Michigan facili- ty; but excluding chemists, office clerical em- ployees, and guards, professional employees, 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 8 July 1986, the Union has requested the Company to bargain, and since 24 September 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 24 September 1986 to bargain with the Union as the exclusive collective- bargaining representative of employees in-the ap- propriate 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.5 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 (10th Cir. 1965). 5 The General Counsel's request for a visitatorial clause is denied, as such a clause is not necessary in the circumstances of this case UNITED STATES AVIEX CO. ORDER The National Labor Relations Board orders that the Respondent, United States Aviex Company, Niles, Michigan, its officers, agents, successors, and, assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL-CIO as the exclusive bar- gaining representative of the employees in the bar- gaining 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. 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 and maintenance employees, including labora- tory employees, quality control employees, shipping and receiving employees; truckdrivers and custodians employed by the Employer at its 1800 Terminal Road, Niles, Michigan facili- ty;' but excluding chemists, office clerical em- ployees, and guards, professional employees, and supervisors as defined in the Act. (b), Post at its facility in Niles, Michigan, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 843 (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 Internation- al Union of Electronic, Electrical, Technical Sala- ried, and Machine Workers, AFL-CIO as the ex- clusive representative of the employees in the bar- gaining 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 full-time and regular part-time production and maintenance employees, including labora- tory employees, quality control employees, shipping and receiving employees, truckdrivers and custodians employed by the Employer at its 1800 Terminal Road, Niles, Michigan facili- ty; but excluding chemists, office clerical em- ployees, and guards, professional employees, and supervisors as defined in the Act. UNITED STATES AVIEX COMPANY 6 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."