Argus Inc.

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 923 (N.L.R.B. 1974)

ARGUS OPTICS 923
Argus Optics, A Division of Argus, Inc. and Local 985,
International Union, United Automobile , Aeros-
pace and Agricultural Implement Workers of
America, UAW. Case 7-CA-10750
May 28, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a charge filed on November 21, 1973, by
Local 985, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, herein called the Local Union, and
duly served on Argus Optics, A Division of Argus,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 7, issued a
complaint and an amended complaint on December
5, 1973, and March 7, 1974, respectively, 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, complaint, amended 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
amended complaint alleges in substance that on
October 5, 1973, following a Board election in Case
7-RC-11610 the International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW, hereafter called the
Union, was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; i and that, commenc-
ing on or about November 8, 1973, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
and its agent as the exclusive bargaining representa-
tive, and to supply pertinent information, although
the Union through its authorized agent, the Local
Union, has requested and is requesting it to do so.
On December 14, 1973, and March 22, 1974,
respectively, Respondent filed its answer and amend-
ed answer to the complaint and amended complaint
admitting in part, and denying in part, the allegations
in the complaint.
On December 26, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 9,
1974, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause, entitled "Answer in Opposition to General
Counsel's Motion for Summary Judgment." There-
after, the General Counsel, on March 7, 1974, issued
an amended complaint to which the Respondent
filed an Answer to Amended Complaint. On March
22, 1974, the General Counsel filed a statement in
support of Motion for Summary Judgment. The
Respondent filed a Statement in Opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 answers to the complaints, response to the
Notice To Show Cause, and Opposition Statement
Respondent contends that the certification of the
Union in Case 7-RC-11610 is invalid in that the
Board erred in failing to direct a new election, or
hold a hearing on its objections to the election.
Respondent also contends that there existed no
agency relationship between the Union and the
Local Union, and the latter was not authorized to
request bargaining and pertinent information on
behalf of the Union. Thus, absent proof by the
General Counsel of such agency and authorization,
there is no obligation on the part of Respondent to
bargain with the Union.
Review of the record, including Case 7-RC-11610,
reveals an election conducted on April 6, 1973,
pursuant to a Stipulation for Certification Upon
Consent Election, resulting in 55 votes cast in favor
of the Union, 47 votes against the Union, with 5
challenged ballots. Respondent filed timely objec-
tions to conduct affecting the results of the election,
alleging in substance that the Union had misrepre-
sented material facts regarding Respondent's finan-
cial status and economic benefits gained in the
Union's contracts with other employers, coerced
employees regarding job security if they did not vote
for the Union, and, along with sympathetic employ-
ees, threatened other employees to vote in favor of
the Union. The Regional Director, following an
Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, enfd. 415 F 2d 26 (C.A 5. 1969);
Case 7-RC-11610 as the term "record" is defined in Sees 102 68 and Intertype Co v Penello, 269 F Supp 573 (D.C Va, 1967). Follett Corp, 164
102.69(f) of the Board's Rules and Regulations, Series 8, as amended . See NLRB 378, enfd . 397 F.2d 91 (C A 7. 1968): Sec. 9(d) of the NLRA
LTV Electrosvrtems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C.A 4, 1968),
210 NLRB No. 124
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation, issued a Report on Objections on June
15, 1973, in which he recommended that the
objections be overruled in their entirety and the
Union be certified. Respondent then filed with the
Board timely exceptions to the Regional Director's
report, reasserting its original objections and adding
as an element of union coercion the existence of a
racially biased rumor circulating in the plant prior to
the election, which allegedly the Regional Director
had failed to consider. The Board considered these
exceptions, and found they raised no material or
substantial issues of fact or law warranting the
reversal of the Regional Director's recommendations
or requiring a hearing. Accordingly, the Board
adopted the findings, conclusions, and recommenda-
tions of the Regional Director and certified the
Union in its Decision and Certification of Represent-
ative of October 5, 1973.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
Respondent contends that there is no proof of
agency or authorization of the Local Union to act for
the Union and thus it is not obliged to comply with
the Local Union's bargaining request. We find no
merit in this contention. The Respondent admits
receipt of a letter dated October 19, 1973, in which
the Local Union, by its vice president, after adverting
to the Union's certification, stated a desire to
commence immediate negotiations with Respondent,
and requested certain information pertinent thereto.
Respondent, by letter of November 8, 1973, ad-
dressed to the Local Union's vice president, replied
that it was unable to bargain because it did not
believe that the election was properly conducted, and
that it was refusing to bargain in order to secure
judicial review of the election.
Respondent thus was refusing to bargain, not due
to any claim of faulty request or lack of authority of
the Local Union to make the request on behalf of the
Union, but because it felt it had sufficient other
reasons relating to the conduct of the election.
Having accepted the Local Union's authority to
make such a request on behalf of the Union, and
believing its response to be to the proper union,
Respondent is now estopped to assert that the Local
Union had no authority to make such a request.
Mutual Coal Company, et al., 181 NLRB 564, 567
(1970). We therefore find no merit in this contention.
There being no issues of fact or law properly raised
in this proceeding, the General Counsel's Motion for
Summary Judgment is granted.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Argus Optics, A Division of Argus,
Inc., is a Delaware corporation with a plant located
at Ann Arbor, Michigan, where it is engaged in the
manufacture of lens elements and assemblies.
During the year ending December 31, 1972, which
period is representative of its operations during all
times material herein, Respondent in the course and
conduct of its business operations, manufactured,
sold, and distributed at its Ann Arbor, Michigan,
plant products valued in excess of $500,000, of which
products valued in excess of $50,000 were shipped
from said plant directly to points located outside the
State of Michigan.
We find, on the basis of the foregoing, that
Respondent 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
Local 985, International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America, UAW, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
2 See Pittsburgh Plate Glass Co v NLRB, 313 U.S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102.67(f) and 102 69(c)
ARGUS OPTICS 925
All production and unskilled maintenance
employees employed by Employer at its facility
located at 2601 South States Street, Ann Arbor,
Michigan, including truckdrivers and leaders, but
excluding all toolroom employees, skilled mainte-
nance employees, office clerical employees, pro-
fessional employees, technical employees, guards,
and supervisors as defined in the Act.
2. The certification
On April 6, 1973, 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 bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on October 5, 1973, 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, 1973, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit and to
supply pertinent information regarding the names of
unit employees, their present seniority and classifica-
tion, wages, hours, and other terms and conditions of
employment. Commencing on or about November 8,
1973, and continuing at all times thereafter to date,
the Respondent has refused, and continues to refuse,
to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit, and to supply the
pertinent information requested.
Accordingly, we find that the Respondent has,
since November 8, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and refused to supply pertinent
information requested by it, and that, by such
refusal , Respondent 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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 to supply it with the pertinent
information requested, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Argus Optics, A Division of Argus, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 985, International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and unskilled maintenance
employees employed by Employer at its facility
located at 2601 South States Street , Ann Arbor,
Michigan, including truckdrivers and leaders, but
excluding all toolroom employees, skilled mainte-
nance employees, office clerical employees, profes-
sional employees, technical 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 5, 1973, 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-
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 8, 1973,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, and
supply the pertinent information requested, Respon-
dent 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, and to
supply pertinent information, Respondent has inter-
fered with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the
exercise of the rights guaranteed to them in Section 7
of the Act, and thereby has engaged 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 mean-
ing 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
Relations Board hereby orders that Respondent,
Argus Optics, A Division of Argus, Inc., Ann Arbor,
Michigan, 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 Local 985, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and unskilled maintenance
employees employed by Employer at its facility
located at 2601 South States Street, Ann Arbor,
Michigan, including truckdrivers and leaders, but
excluding all toolroom employees, skilled mainte-
nance employees, office clerical employees, pro-
fessional employees, technical employees, guards,
and supervisors as defined in the Act, and
refusing to provide the Union with pertinent
information regarding names of unit employees,
their present seniority and classifications, wages,
hours, and other terms and conditions of employ-
ment.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement, and provide pertinent information
regarding names of unit employees, their present
seniority and classifications, wages, hours and other
terms and conditions of employment.
(b) Post at its Ann Arbor, Michigan, plant copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 7 after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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.
3 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 Pursuant 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 Local
895, International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America, UAW, 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 employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL provide the Union with pertinent
information regarding names of unit employees,
their present seniority and classification, wages,
hours, and other terms and conditions of employ-
ment.
ARGUS OPTICS
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and unskilled mainte-
nance employees employed by Employer at
its facility located at 2601 South States
Street, Ann Arbor, Michigan, including
truckdrivers and leaders, but excluding all
toolroom employees, skilled maintenance
employees. office clerical employees, profes-
sional employees, technical employees,
guards and supervisors as defined in the Act.
ARGUS OPTICS, A
DIVISION OF ARGUS,
INC.
(Employer)
927
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.