ITT Lighting Fixtures

DECISIONS OF NATIONAL LABOR RELATIONS BOARD ITT Lighting Fixtures, Division of ITT Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 26-CA-8050 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 20, 1979, by International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, herein called the Union, and duly served on ITT Lighting Fixtures, Division of ITT Corporation, herein called Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 26, issued a complaint on October 2, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an ad- ministrative 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 July 10, 1979, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about August 6, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On October 9, 1979, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On December 3, 1979, counsel for the General Counsel filed directly with the Board a motion en- titled "Motion to Transfer Case to the Board and for Summary Judgment." On December 18, 1979, the General Counsel moved to withdraw the motion because of the Board's pending review of the Regional Director's Decision in Case 26-RC- The certification was issued following an election conducted by the Board in Case 26-RC-5908. Official notice is taken of the record in the representation proceeding, Case 26-RC-5908, as the term "record" is de- fined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electroystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Inrertype Co. v. Pen- ello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 252 NLRB No. 46 5908. On December 18, 1979, the Board granted the General Counsel's motion to withdraw the "Motion to Transfer Case to the Board and for Summary Judgment," and referred the case to the Regional Director for Region 26 for further appro- priate action. On May 9, 1980, the Board issued its Decision on Review in Case 26-RC-5908,2 affirm- ing and adopting the Certification of Representa- tive issued by the Regional Director in his supple- mental decision of July 10, 1979. Thereafter, on June 23, 1980, the General Counsel filed a motion entitled "Motion to Re-File Motion to Transfer Case to Board and for Summary Judgment," with exhibits attached, alleging, inter alia, that by letter of June 3, 1980, Respondent refused to bargain with the Union. Subsequently, on June 30, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 answer to the complaint and response to the Notice To Show Cause, Respondent asserts that the Regional Director's certification of a unit including certain employees classified as group leaders is erroneous inasmuch as all of its group leaders are supervisors within the meaning of Sec- tion 2(11) of the Act. Respondent admits in its answer that it has refused and continues to refuse to bargain with the Union. The General Counsel contends that Respondent's answer raises no issues other that those fully con- sidered and decided by the Board in the underlying representation proceeding, that Respondent is seek- ing to relitigate such issues, and that Respondent makes no claim that its defenses are based on previ- ously unavailable evidence. Our review of the record herein, including the record in Case 26-RC-5908, discloses that the Union filed a petition for an election on December 14, 1978. After a hearing on January 3, 1979, the Regional Director issued a Decision and Direction of Election, directing an election in a unit of pro- duction and maintenance employees and finding that the group leaders, alleged by Respondent to be 2 249 NLRB 441. 328 I-T LIGHTING FIXTURES, DIVISION OF ITT CORPORATION supervisors, and by the Union to be employees, should vote subject to challenge. An election was conducted on February 16, 1979, in which 175 votes were cast for the Union, and 153 against the Union, with 34 challenged bal- lots, including those of the group leaders, a number sufficient to affect the results of the election. Re- spondent timely filed objections, alleging, essential- ly, that the group leaders were supervisors who should not have been allowed to vote by chal- lenged ballot and whose preelection conduct in support of the Union interfered with employees' freedom of choice in the election. On February 28, 1979, the Regional Director for Region 26 issued a notice of hearing on the challenged ballots and ob- jections to resolve the issues raised by Respond- ent's objections and by the challenged ballots. The Hearing Officer issued his "Report and Recommen- dations on Employer's Objections to the Conduct of the Election and to Conduct Affecting the Re- sults of the Election and Challenged Ballots" on April 23, 1979, in which he recommended, inter alia, that the challenges to the ballots of the group leaders be sustained; that the challenge to the ballot of traffic control clerk Janet Cox be overruled; that Respondent's objections be overruled; and that a certification of representative issue. On July 10, 1979, the Regional Director issued a Supplemental Decision and Certification of Representative in which, inter alia, he adopted the Hearing Officer's findings that 11 of the group leaders were supervi- sors and that Respondent's objections were without merit; found I ballot void; sustained the challenge to Cox's ballot; and found it unnecessary to resolve the status of the remaining group leaders as their ballots were no longer determinative. 3 On August 6, 1979, Respondent filed a request for review of the Regional Director's Supplemental Decision and Certification of Representative, alleg- ing, inter alia, that the Regional Director erred in declaring a ballot void; sustaining the challenge to the ballot of Cox; overruling Respondent's objec- tions; and failing to find all of the group leaders to be supervisors. Subsequently, on November 21, 1979, the Board granted Respondent's request for review as to Cox as well as on the eligibility of the 20 group leaders on whose status the Regional Di- rector found it unnecessary to pass. Thereafter, on May 9, 1980, the Board issued its Decision on Review in Case 26-RC-5908 in which it overruled the challenge to Cox's ballot, and found that an additional four group leaders were supervisors within the meaning of Section 2(11) of the Act. However, as the unresolved challenged I Thus, the revised tally of ballots shows 175 votes for and 153 against the Union, with 21 undeterminative challenged ballots. ballots and the unopened ballots (challenges to which had been overruled) were not determinative of the results of the election, the Board affirmed and adopted the Regional Director's Certification of Representative issued by the Regional Director. In view of the Board's Decision on Review, the Union, by letter of May 19, 1980, renewed its re- quest to bargain. Respondent replied by letter of June 3, 1980, that it was unwilling to bargain on grounds that the activities of the group leaders had interfered with the election. On June 23, 1980, the General Counsel filed a motion entitled "Motion to Re-File Motion to Transfer Case to Board and for Summary Judgment." It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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.4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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. Accordingly, we grant the Motion for Summary Judgment. 5 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a Mississippi corporation engaged in the manufacture of lighting fixtures and the operation of a warehouse at its Southaven, Mississippi, facili- ty. In the course and conduct of its business, Re- spondent annually sells and ships from the Southa- ' 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 In its answer to the complaint, Respondent, in addition to denying the commission of any unfair labor practices, denies that the unit alleged in the complaint is appropriate for purposes of collective bargaining, that the Union was properly certified as collective-bargaining representative for the employees in said unit, or that the Union is now the representa- tive of said employees. However, the Board, in its previously referred-to Decision on Review, disposed of these issues and they therefore cannot be relitigated herein. Teledyne, Landis Machine, 212 NLRB 73, 74, fn. 4 (1974). In its answer to the complaint Respondent alleges, inter alia, that Otto Payonzeck, alleged in the complaint to be plant manager, has the title of president and general manager, lighting fixtures division. We find that Payonzeck's title is immaterial to this proceeding and thus find that Respondent's allegation in that regard does not raise a litigable issue. 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ven facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Mississippi, and purchases and receives at its Southaven, Mississippi, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Mississippi. We find, on the basis of the foregoing, that Re- spondent 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 International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 10, 1979, 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 August 6, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about August 6, 1979, and continu- ing 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. Accordingly, we find that Respondent has, since August 6, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 Respondent set forth in section III, above, occurring in connection with its oper- ations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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, 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. ITT Lighting Fixtures, Division of ITT Cor- poration, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including tool crib attendant, shipping department and warehouse re- ceiving department employees and clerks, tool and die shop employees, mechanical lab technicians, electrical lab technicians, and quality control lab technicians, employed at Respondent's Southaven, Mississippi, location, and all employees employed at Respondent's warehouse located on Titan Drive in Memphis, Tennessee, including traffic control clerks, excluding office clerical employees, engi- neering department employees, technical employ- ees, over-the-road truckdrivers, general foremen, foremen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since July 10, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- 330 ITT LIGHTING FIXTURES, DIVISION OF ITT CORPORATION said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 6, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 Re- lations Board hereby orders that the Respondent, FIT Lighting Fixtures, Division of ITT Corpora- tion, Southaven, Mississippi, 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 International Union, United Automobile, Aerospace, and Agri- cultural Implement Workers of America, UAW, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time produc- tion and maintenance employees, including tool crib attendant, shipping department and warehouse receiving department employees and clerks, tool and die shop employees, me- chanical lab technicians, electrical lab tech- nicians and quality control lab technicians, employed at the Respondent's Southaven, Mississippi, location, and all employees em- ployed at the Respondent's warehouse locat- ed on Titan Drive in Memphis, Tennessee, including traffic control clerks, excluding office clerical employees, engineering de- partment employees, technical employees, over-the-road truckdrivers, general foremen, foremen, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Southaven, Mississippi, and Mem- phis, Tennessee, facilities copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 6 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 Pursu- ant 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 International Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America, UAW, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- 331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees, including tool crib attendant, shipping department and warehouse receiving department employees and clerks, tool and die shop employees, me- chanical lab technicians, electrical lab tech- nicians, and quality control lab technicians, employed by us at our Southaven, Mississip- pi, location, and all employees employed by us at our warehouse located on Titan Drive in Memphis, Tennessee, including traffic control clerks, excluding office clerical em- ployees, engineering department employees, technical employees, over-the-road truck- drivers, general foremen, foremen, guards and supervisors as defined in the Act. ITT LIGHTING FIXTURES, DIVISION OF ITT CORPORATION 332