Michigan Rubber Products, Inc.

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michigan Rubber Products, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of Amer- ica, AFL-CIO-CLC. Case 7-CA-17079 August 12, 1980 DECISION AND ORDER CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on November 15, 1979, by United Rubber, Cork, Linoleum and Plastic Work- ers of America, AFL-CIO-CLC, herein called the Union, and duly served on Michigan Rubber Prod- ucts, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a com- plaint on November 21, 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 October 16, 1979, following a Board election in Case 7-RC- 15420, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about November 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 bar- gaining representative, although the Union has re- quested and is requesting it to do so. On December 3, 1979, Respondent filed its answer to the com- plaint admitting in pa:t, and denying in part, the al- legations in the complaint. Specifically, Respond- ent's answer denies that a majority of the employ- ees in the appropriate unit selected the Union as their exclusive bargaining representative in the July 19, 1979, election. Respondent also denies that the Union has been and is now the exclusive bargain- ing representative in the unit found to be appropri- ate. Finally, Respondent denies the conclusory alle- gations that it acted unlawfully in refusing to rec- ognize and bargain with the Union. i Official notlice is taken (of the record in the repretnltalilon proceed- ing. Case 7-RC-15420. as the term "record" is definled in Secs 102 h8i and 102 69(g) of the Board's Rules and Regulalions. Series 8, aes cnded See LII' E/ectrtvrcms., Inc., 66 NRB 938 (1967). entd. 388 I 2d thX8 (41h Cir 1968): (olden Age Berage Co., ( 167 NIRB 151 (1967). efd 415 F2d 26 (5th Cir 1969); Interrpe (Co v Pnetrl, 269 I Supp 571 (I)C.Va. 1967). hbllttt Corp.,. 164 NRK 3787 (1967), enfd 197 12d 9 (7th Cir 1968). Sec. 9(d) of the NLRA . as amended 251 NLRB No. 20 On December 26, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 9, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent has not 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 As indicated above, Respondent's answer admits in part, and denies in part, the allegations of the complaint. Respondent denies the portions of the complaint that assert the sufficiency of the certifi- cation in establishing the Union as the exclusive bargaining representative in the appropriate unit and the conclusory allegations that Respondent had violated Section 8(a)(l) and (5) of the Act. A review of the record reveals that, pursuant to a Stipulation for Certification Upon Consent Elec- tion in Case 7-RC-15420, an election was held on July 19, 1979, in the appropriate unit. The tally was 38 for, and 31 against, the Union. There were two challenged ballots. Thereafter, Respondent filed timely objections to the election. On August 15, 1979, the Regional Director for Region 7 issued his Report and Recommendation on Objections in which he recommended that the objections be overruled, and that a certification of representative be issued. Respondent filed exceptions to the Re- gional Director's Report and Recommendation on Objections with the Board. On October 16, 1979, the Board issued its Decision and Certification of Respresentative (not reported in bound volumes of Board Decisions) in which it adopted the Regional Director's findings and recommendations. On October 19, 1979, the Union requested bar- gaining. Respondent has refused to bargain with the Union since November 6, 1979.2 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 : h' t I let coait.lililig lic UiToI 's requesL t anld Respoindent' refusal to h.Lirgil arc aillltxeid t( lie (itiLcral CollsCl's NMotion fotr StlllilnarN Judglltgll e nolle Ih;tl tlhosc letters also cit.l language reqlc1sitig a.Id dCtl i. erg, l CSt ltixlc l l illlrnllati i rclitix i: I ro lc lgo tllit lI, o e' fur- th otrnote, i,.Ne r, ltiit o llcg.tionls co clll g . reftsil to suppi il- torltiiiO l lai l holII Ilic 1 l [n p rittd ii thc 'tllt iallaiti MICHIGAN RUBBER PRODUCTS, INC. 75 to relitigate issues which were or could have been litigated in a prior representation proceeding. 3 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, a Michigan corporation, is engaged in the manufacture, sale, and distribution of rubber products at its plant in Cadillac, Michigan. During the year ending December 31, 1978, which period is representative of its operations during all times material hereto, Respondent, in the course and con- duct of its business operations purchased and caused to be transported and delivered to its Cadil- lac plant goods and materials valued in excess of $50,000, which goods and materials were transport- ed and delivered to the Cadillac plant directly from points located outside the State of Michigan. 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 United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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: :' See Plthurgh Plate (;lasv Co \. L R B, 13 1 S 146, 1 2 (41); Rules and Regulations of the Board. Secs 102 7(0) and 102 6h90) All full-time and regular part-time production and maintenance employees employed by Re- spondent at its facility located at 1200 8th Avenue, Cadillac, Michigan, but excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 2. The certification On July 19, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 7, 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 October 16, 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 October 19, 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 November 6, 1979, 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 November 6, 1979, 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 (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 , 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. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, mak :s the following: CONCLUSIONS OF LAW 1. Michigan Rubber Products, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, 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 employed by Respond- ent at its facility located at 1200 8th Avenue, Cadil- lac, Michigan, but excluding office clerical employ- ees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 16, 1979, 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 November 6, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices 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)(l) 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, Michigan Rubber Products, Inc., Cadillac, Michi- gan, 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 United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All full-time and regular part-time production and maintenance employees employed by Re- spondent at its facility located at 1200 8th Avenue, Cadillac, Michigan, but excluding 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 Cadillac, Michigan, plant copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the ords in the notice reading "Posted by Order of the National Labor Relations Hoard" shall read "Posted Pursu- anlt to a Judgment of the United States Court of Appeals Enforcing an Order of the National Relations Board." MICHIGAN RUBBER PRODUCTS. INC. 77 Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 United Rubber, Cork, Linoleum and Plas- tic Workers of America, AFL-CIO-CLC, 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 full-time and regular part-time produc- tion and maintenance employees employed by Respondent at its facility located at 1200 8th Avenue, Cadillac, Michigan, but exclud- ing office clerical employees, professional employees, guards and supervisors as de- fined in the Act. MICHIGAN RUBBER PRODUCTS, INC.