Advanced Systems, Inc.

ADVANCED SYSTEMS, INC. 25 Advanced Systems, Inc. and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America. Case 28-CA- 5694-2 August 11, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge and amended charge filed on February 1, 1980, and February 6, 1980, respective- ly, by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, herein called the Union, and duly served on Advanced Systems, Inc., herein called Respond- ent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 28, issued a complaint on February 27, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce 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 administrative 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 January 21, 1980, following a Board election in Case 28-RC- 3668, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' that by letter dated January 24, 1980, the Union re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of said employees and to furnish it with certain in- formation which is necessary for, and relevant to the Union's performance of its function as such representative; and that on or about January 24, 1980, Respondent failed and refused to comply with the Union's request. The complaint further al- leges that by its actions commencing on or about January 24, 1980, and at all times thereafter, Re- spondent had refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 26, 1980, Respondent filed its answer IOfficial notice is taken of the record in the representation proceed- ing. Case 28-RC-3668, as the term "record" is defined in Secs 102 68 and 102.6 9(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosim. 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): Interrype Co. v. Penello, 269 F Supp 573 (DC.Va 1967) Fllett Corp.. 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA. as amended. 251 NLRB No. 11 to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 4, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on April 10, 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, Respondent admits all of the factu- al allegations of the complaint, Respondent's posi- tion is that the Union is not the duly certified ex- clusive collective-bargaining representative of its employees in the unit found appropriate in Case 28-RC-3668. 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. 2 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is now, and at all times material herein has been, a corporation duly organized under the existing by virtue of law of the State of Arizona. Respondent's office and principal place of 2 See Pttrhurgh Plate (Glat Co. ,VL.R B 343 I S 146, 16h2 (1941); Rules and Regulations of the Board, Sec, 12 7() and 102 h90c) ADVANCED SYSTEMS, INC. 25 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business is at 4607 South 35th Street, Phoenix, Ari- zona, where it has been and is now engaged in the manufacture and nonretail sale and distribution of plastic machine products. During the past 12-month period, which period is representative of its annual operations generally, Respondent, in the course and conduct of its oper- ations described above, sold and shipped in inter- state commerce goods and materials valued in excess of $50,000 directly to customers located in States of the United States other than the State of Arizona. 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. II1. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aero- space & Agricultural Implement Workers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at Respondent's facility located at 4607 South 35th Street, Phoenix, Arizona; excluding all other employees of Respondent, including office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 2. The certification On August 10, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 28, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on January 21, 1980, 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 January 24, 1980, 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 January 24, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 24, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, 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; ADVANCED SYSTEMS, INC. 27 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 I. Advanced Systems, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees at Respondent's facility located at 4607 South 35th Street, Phoenix, Arizona; excluding all other em- ployees of Respondent, including office clerical employees, professional employees, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within meaning of Section 9(b) of the Act. 4. Since January 21, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 24, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, Advanced Systems, Inc., Phoenix, Arizona, its offi- cers, 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 & Agricul- tural Implement Workers of America, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees at Respondent's facility located at 4607 South 35th Street, Phoenix, Arizona; excluding all other employees of Respondent, including office clerical employees, professional employ- ees, 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 facility at 4607 South 35th Street, Phoenix, Arizona, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 28 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 28, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 3 In the event that hls Order is enforced hb a Judgment of a United States Court of Appeals the "sords in the notice reading "Posted hby Order of the Natlional 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 " ADVANCED SYSTEMS, INC. 27 28 DECISIONS OF 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 & Agricultural Implement Workers of America, as the exclusive representative 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- 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 production and maintenance employees at our facility located at 4607 South 35th Street, Phoenix, Arizona; excluding all other employees, including office clerical employ- ees, professional employees, guards and su- pervisors as defined in the Act. ADVANCED SYSTEMS, INC.