Superior Industries International, Inc.

320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Superior Industries International , Inc. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW, Amalgamated Local No. 645. Case 31-CA-17361 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 3, 1988, the General Counsel of the National Labor Relations Board issued a com- plaint alleging that the Respondent had violated Section 8(a)(5) and (1) of the National Labor Rela- tions Act by eliminating bargaining unit positions and subcontracting unit work, without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive collective-bargaining representative of the Respondent's employees; and by refusing the Union's request to bargain and to furnish informa- tion.' The Respondent filed an answer in which it either denied the complaint allegations or stated that it was without knowledge of the allegations. On January 17, 1989, the General Counsel filed a Motion to Strike Portions of the Respondent's Answer and for Partial Summary Judgment. On January 23, 1989, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The Charging Party filed a response and a brief in sup- port of the General Counsel's Motion to Strike and for Partial Summary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on the Motion to Strike Portions of the Respondent's Answer and for Partial Summary Judgment The General Counsel requests that the portions of the Respondent's answer responding to com- plaint allegations 1, 2, 3, 4, 6, 7, and 8 be stricken, as well as the Respondent's "affirmative defenses" in paragraph 2, page 1, and in paragraph 3, page 2, of its answer, under Sections 102.20 and 102.21 of the Board's Rules and Regulations . Section 102.20 of the Board's Rules and Regulations provides as follows: We take administrative notice of the unpublished Decision and Certi- fication of Representative issued on May 21 , 1987 (Case 31-RC-5728), and of Superior Industries, 289 NLRB 834 (1988), Superior I (Case 31- CA-16587), in which the Board affirmed the certification. The respondent shall, within 14 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. Section 102.21, in pertinent part, states "[i]f an answer . . . is signed with intent to defeat the pur- pose of this rule, it may be stricken as sham and false and the action may proceed as though the answer had not been served." In DPM of Kansas, Inc., 261 NLRB 220 fn. 2 (1982), cited with ap- proval in M. J. Santulli Mail Services, 281 NLRB 1288, 1290 (1986), the Board noted that Section 102.20 was "qualified by Section 102.21 to the extent that an answer may be stricken if it is a sham and false, in which event the action may pro- ceed as though the answer had not been served." Paragraph 1 of the complaint alleges that the charge in this case was filed by the Union on Sep- tember 22, 1988, and that a copy was served on the Respondent by certified mail about September 24, 1988. The Respondent stated that it was without knowledge of the truth of the allegation. As exhib- its attached to the Motion for Partial Summary Judgment, the General Counsel has provided copies of the charge, the notice and acknowledg- ment of filing of charge, and a photocopy of the signed postal return receipt No. 583363657 (Exh. D). In its response to the Notice to Show Cause, the Respondent stated that the documents compos- ing Exhibit D are "unauthenticated." We find that the Respondent has not controverted the docu- ments in Exhibit D and thus the exhibit is deemed to be true and establishes the filing and service of charge as alleged. Accordingly, the Respondent's answer is frivolous and sham and we grant the General Counsel's motion to strike.2 Paragraph 2(a) of the complaint alleges that the Respondent is a California corporation with an office and place of business in Van Nuys, Califor- nia, where it is engaged in the manufacture of cast aluminum wheels and auto accessories. Paragraph 2 Handy Hardware Wholesale, 222 NLRB 373 fn. 6 (1976) (lack of knowledge of filing and service of charge); Jason/Empire, Inc., 212 NLRB 137 fn. 4 (1974) (denial of filing and service of charge). 295 NLRB No. 36 SUPERIOR INDUSTRIES INTERNATIONAL 321 2(b) of the complaint alleges that in the course and conduct of its business, the Respondent annually sells and ships goods or services valued in excess of $50,000 directly to customers located outside the State of California. The Respondent denied these allegations. Paragraph 3 of the complaint alleges that the Re- spondent is an employer engaged in commerce and in a business affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. The Re- spondent stated that it is without knowledge of this allegation. The General Counsel requests the Board to strike these portions of the Respondent's answer re- sponding to complaint paragraphs 2(a), 2(b), and (3) because the facts set forth in these paragraphs were stipulated to by the Respondent in Case 31- RC-5728, the earlier representation case. The Re- spondent, in its response to the Notice to Show Cause, states that the General Counsel's "claim" that the Respondent stipulated that it is engaged in commerce and is a statutory employer "is not accu- rate." The Respondent also alleges that "there is no record stipulation of facts applicable to the time frame encompassed . . . in 1988." However, the Respondent fails to provide any evidence to con- travene its previous stipulation in the representation case that it is an employer engaged in commerce under Section 2(6) and (7) of the Act. Also, in Su- perior I, the Board found that the Respondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. As the Respondent previously stipulated to the facts set forth in complaint paragraphs 2 and 3 and as the Respondent has not proffered any evidence to con- travene the earlier stipulation, we find that its denial and alleged lack of knowledge are frivolous. We grant the motion to strike.3 Paragraph 4 of the complaint alleges that the Union is a labor organization under Section 2(5) of the Act. The Respondent states that it is without knowledge as to paragraph 4. The Respondent, in agreeing to the Stipulation for Certification on Consent Election in Case 31-RC-5728, stipulated that the Union was a labor organization. Also, in Superior I, the Board found that the Union is a labor organization under the Act. We also take ad- ministrative notice that the Board has previously found that the International Union, United Auto- 3 Spring Valley Farms, 274 NLRB 643 (1985); Dollar Rent-A-Car, 250 NLRB 1361 (1980) (denial of commerce facts); and Handy, fn. 4 supra; and Empire Dental Co., 211 NLRB 860 (1974) (denial of status as a statu- tory employer). See also Western Temporary Services, 278 NLRB 469 (1986) mobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 645, is a labor organization under Section 2(5) of the Act . See Es- tablishment Industries, 284 NLRB 121 (1987). Ac- cordingly, we find that the Respondent' s alleged lack of knowledge regarding paragraph 4 is frivo- lous.4 We grant the motion to strike. Paragraph 6 of the complaint sets forth the de- scription of the unit and states that the unit is ap- propriate for purposes of collective bargaining. The Respondent states that it is without knowledge of the truth of the allegation. The General Counsel requests we strike this portion of the Respondent's answer because the Respondent stipulated to the appropriateness of the unit in the prior representa- tion case. In its response to the Notice to Show Cause, the Respondent states that the General Counsel's "claim" that the Respondent previously stipulated to the appropriateness of the unit "is not accurate" and "there is no record stipulation of facts applicable to the time frame encompassed .. . in 1988." The Respondent fails to provide any evi- dence to contravene its previous stipulation, or to establish that the relevant circumstances have changed materially since its stipulation was en- tered. The Board affirmed the appropriateness of the unit in Superior I. It is well settled that in the absence of newly discovered or previously unavail- able evidence or special circumstances a respond- ent 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 repre- sentation proceeding.5 We find the portion of the Respondent's answer responding to paragraph 6 to be frivolous and we grant the motion to strike it.6 Paragraph 7 of the complaint relates the history of the representation case and states that on August 30, 1984, a majority of the unit employees selected the Union as their collective-bargaining representa- tive; and that on May 21, 1987, the Regional Di- rector certified the Union as the collective-bargain- ing representative for the employees listed in para- graph 6. Paragraph 8 of the complaint alleges that since August 30, 1984, the Union has been the ex- clusive collective-bargaining representative of the employees in the unit. The Respondent has denied both allegations. 4 Wickes Furniture, 261 NLRB 1062 fn. 4 (1982), Jobbers' Supply, 242 NLRB 518 fn. 2 (1979); Handy, supra, fn. 4, Graneto Datsun, 220 NLRB 399 fn 1 (1975); and S & S Product Engineering Services, 210 NLRB 912 fn. 2 (1974). 5 Empire Dental Co., supra. 6 Handy, supra; Jason, supra; Graneto, supra (denial of the appropriate- ness of the unit). 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel requests we strike these portions of the Respondent's answer because in the prior representation case the Board determined that the August 30, 1984 election was valid and certi- fied the Union as the exclusive collective -bargain- ing representative . The Respondent's objections were overruled and the Union was certified as the exclusive collective-bargaining representative of the unit employees in the underlying case. In Supe- rior I the Board affirmed its findings in the repre- sentation case and ordered the Respondent to rec- ognize and bargain with the Union as the exclusive collective-bargaining representative of the unit em- ployees. We find the portions of the Respondent's answer responding to paragraphs 7 and 8 to be frivolous and we grant the motion to strike.7 The Respondent's affirmative defense in para- graph 2, page 1 , of its answer alleges that a Region 31 supervisor and another General Counsel lawyer "believed" certain testimony and affidavits relating to the Respondent's exceptions and contentions in the earlier representation case. The General Counsel contends that this allega- tion is "inflammatory, without foundation, spuri- ous, irrelevant, and serve[s] no legitimate purpose" and requests that it be stricken under Section 102.21 of the Board's Rules and Regulations. The Respondent opposes the motion to strike. The Respondent argues that the issues encom- passed in the testimony and affidavits "believed" by the Region 31 supervisor and the General Counsel attorney were "never `previously litigat- ed."' The Board fully considered the Respondent's evidence as to alleged objectionable conduct in the earlier representation case. We find this affirmative defense to be frivolous and irrelevant and strike it under Section 102.21 of the Board's Rules and Regulations. The Respondent's affirmative defense in para- graph 3, page 2, of its answer alleges that the Gen- eral Counsel is engaged in a "cover-up" and alleges that Board election procedures are the subject of concern, and are under investigation, by "at least forty [unnamed] U.S. Senators and Congressmen." The General Counsel contends that this allegation is "inflammatory, without foundation, spurious, ir- relevant, and serve[s] no legitimate purpose" and requests that it be stricken under Section 102.21 of the Board's Rules and Regulations . The Respond- ent opposes the motion to strike. We find this af- 7 We note that Superior I is currently on appeal before the Court of Appeals for the Ninth Circuit . However, unless and until the court re- verses our Decision and Order in Superior I, we have made a final deter- mination that the Union is the exclusive collective -bargaining representa- tive of the unit employees firmative defense to be frivolous and irrelevant and strike it under Section 102.21 of the Board's Rules and Regulations. We grant the General Counsel 's motion that those portions of the Respondent 's answer respond- ing to complaint allegations 1, 2, 3, 4, 6, 7, and 8 be stricken. The matters alleged in the complaint with respect thereto are deemed to be true. We also strike the Respondent's "affirmative defenses" in paragraph 2, page 1 , and in paragraph 3, page 2, of its answer, under Sections 102.20'and 102.21 of the Board's Rules and Regulations." Based on the above findings, we grant the Gen- eral Counsel's Motion to Strike and for Partial Summary Judgment. We will remand this case to the Regional Director for further proceedings con- cerning the alleged 8(a)(5) and (1) violations. ORDER It is ordered that the General Counsel' s Motion to Strike Portions of the Respondent's Answer and for Partial Summary Judgment is granted in full. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 31 for the purpose of issuing a notice of hearing and scheduling a hearing before an administrative law judge. IT IS FURTHER ORDERED that the administrative law judge shall prepare and serve on the parties a decision containing findings, conclusions, and rec- 8In its answer, the Respondent stated: "[a]ll Respondent's arguments and all the documents, transcripts and exhibits in NLRB Cases 31-CB- 5999, 6093 [sic], 6223, RC-5728, CP-531 , CA-16587, CC-1836, US. Court of Appeals for the First Circuit No 88 -1917 and U.S. Court of Appeals for the Ninth Circuit Nos. 88 -7297 and 88-7374 are hereby in- corporated by reference herein" The General Counsel requests the Board to strike the Respondent's attempt to incorporate by reference all the above material because the Respondent's reference to the material is vague and ambiguous and it cannot be ascertained what issues the Re- spondent is raising as its defense to the present complaint . Also, accord- ing to the General Counsel , the Respondent has not shown which por- tions of the material are relevant to the present case We agree with the General Counsel and we shall strike the incorporation of the above-men- tioned documents from the answer. In particular regard to the Respondent's attempt to incorporate by ref- erence all the documents relating to the prior representation case and to Superior I, we have taken administrative notice of these cases. However, we will not incorporate all the documents from those cases into the record in this case because the Respondent has failed to show their rel- evance to the present case. In Its response to the Notice to Show Cause, the Respondent attempted to incorporate by reference certain correspondence regarding Freedom of Information Act requests in cases other than the present case. We strike this incorporation because the Respondent has failed to show the relevance of this matter to the present case In its answer and response to the Notice to Show Cause , the Respond- ent requests the Board consolidate the present case with the cases listed above The General Counsel requests that the Respondent's request be stricken because Case 31-CA-16587 is currently before the Court of Ap- peals for the Ninth Circuit and the other cases are closed , withdrawn, or dismissed. We grant the General Counsel's motion to strike the Respond- ent's request The Respondent moves that the hearing in this case be rescheduled to February 26, 1989. The issue is moot. SUPERIOR INDUSTRIES INTERNATIONAL 323 ommendations based on all the record evidence. Section 102.46 of the Board's Rules and Regula- Following the service of the administrative law tions shall apply. judge's decision on the parties, the provision of