B. F. Goodrich Co.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 748 (N.L.R.B. 1974)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. F. Goodrich Tire Company, a Division of the B. F.
Goodrich Company and Chauffeurs , Teamsters,
Warehousemen and Helpers Local Union No. 414,
a/w International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 25-CA-6267
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on April 29, 1974, by Chauf-
feurs, Teamsters, Warehousemen and Helpers Local
Union No. 414, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and duly served on
B. F. Goodrich Tire Company, a Division of the B. F.
Goodrich Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 25, issued
a complaint on May 28, 1974, against Respondent,
alleging that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and no-
tice of hearing before an Administrative Law Judge
were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on April 8, 1974, follow-
ing a Board election in Case 25-RC-5467, the Union
was duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate;' and that, commencing on or
about April 8, 1974, and more particularly on April 23,
1974, and at all times thereafter, Respondent has
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 June 5, 1974, Respondent
filed its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On June 17, 1974, counsel for the General Counsel
filed directly with the Board a motion to strike portions
of the Respondent's answer and Motion for Summary
Judgment. On June 21, 1974, the Respondent filed a
I Official notice is taken of the record in the representation proceeding,
Case 25-RC-5467, as the term "record" is defined in Secs. 102.68 and
102.69 (g) of the Board 's Rules and Regulations , Series 8 , as amended. See
LTVElectrosystems , Inc., 166 NLRB 938 (1967 ), enfd . 388 F .2d 683 (C.A.
4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d
26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F . Supp . 573 (D .C. Va.,
1957); Follett Corp., 164 NLRB 378 ( 1967), enfd . 397 F.2d 91 (C.A. 7,
1968 ); Sec. 9 (d) of the NLRA.
brief in opposition to the General Counsel's motions.
Subsequently, on July 3, 1974, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's Mo-
tion for Summary Judgment should not be granted.
Respondent thereafter filed a brief with affidavit at-
tached, as 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 in its briefs, the
Respondent opposes the General Counsel's Motion for
Summary Judgment on the grounds (1) that the elec-
tion in the underlying representation proceeding was
invalid because of the Union's preelection promise to
waive initiation fees, and (2) that a hearing would es-
tablish that the employees in the stipulated unit were
so closely related to or aligned with management as to
be managerial employees who, under the recent Su-
preme Court decision in N.L.R.B. v. Bell Aerospace
Co., Division of Textron Inc., 416 U.S. 267 (1974), are
not covered by the Act and that such coverage of the
Act cannot be stipulated away. We find no merit in the
Respondent's position.
Review of the record herein, including that in Case
25-RC-5467, shows that, pursuant to a Stipulation for
Certification Upon Consent Election, an election was
conducted on November 7, 1973, among the employees
in the following stipulated unit: "All quality control
men, draftsmen, tire construction technicians, senior
lab technicians, and lab technicians . . . but excluding
all senior production technicians, all senior quality con-
trol men, all office clerical employees, all guards, all
professional employees and supervisors as defined in
the Act, and all other employees." The election re-
sulted in 18 votes cast for the Union, none for the
Intervenor, and 15 against the participating labor or-
ganizations; there were no challenged ballots.
The Respondent filed a timely objection to the elec-
tion alleging, in substance, that the Union made a pre-
election promise to unit employees that it would reduce
the initiation fee if it won the election. After investiga-
tion, the Regional Director issued, on November 27,
1973, his Report on Objections in which he recom-
mended that the objection be overruled upon authority
of the Board's decision in DIT-MCO Inc. (163 NLRB
1019 (1967)), and that the Union be certified. The Re-
spondent filed timely exceptions and supporting briefs,
urging the Board to consider the exceptions in the light
215 NLRB No. 134
B F GOODRICH TIRE CO
of the recent Supreme Court decision in N.L.R.B. v.
Savair Mfg. Co. (414 U.S. 270 (1973)), which over-
turned the Board 's DIT-MCO decision. On April 9,
1973, the Board issued a Decision and Certification of
Representative (209 NLRB No. 182) in which it over-
ruled the Respondent's reduction of initiation fees ob-
jection, finding nothing in the Union's conduct objec-
tionable under Savair, and accordingly certified the
Union. It thus appears that the Respondent is attempt-
ing to relitigate an issue raised and determined ad-
versely to it in the underlying representation case.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not of-
fer 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 prop-
erly litigable in this unfair labor practice proceeding.
As indicated above, the Respondent also contends
for the first time in this proceeding that a hearing
would establish that all the employees in the unit are
closely aligned with management and are therefore
"managerial employees" excluded from the coverage of
the Act under the Supreme Court decision in Bell
Aerospace, and that, in order to find a violation, such
coverage under the Act must first be established and
cannot be stipulated away. We disagree.
As previously noted, the representation case election
was conducted in the unit stipulated as appropriate by
the parties. There were no challenged ballots. The
Board has long held, with Supreme Court
approval ,' that postelection challenges will not be
considered. The reasons for not permitting such chal-
lenges were fully explicated by the Supreme Court in
the A.J. Tower case and they are fully applicable to the
case at bar. Further, we do not see the relevance of the
Supreme Court's Bell Aerospace decision to the instant
case. In Bell Aerospace, the employer had contested the
status of certain buyers prior to the election, a hearing
had been held, and a Board decision had issued. The
2 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)
3 NL R B v A J Tower Company, 329 U S 324 (1946)
749
issue was thus timely presented to the Board for deci-
sion, and later to the court of appeals and the Supreme
Court. In the present case, the Respondent, prior to the
election, and even after it, never contested the status of
the individuals in question until the instant unfair labor
practice proceeding.
Nor can it be argued that the Bell Aerospace case so
altered applicable Board precendent that the Respond-
ent was misled into entering upon the stipulation in this
proceeding by any precedent which has now been over-
turned. This Board, in the Bell Aerospace case, held
that certain categories of managerial employees who,
under established Board policy, would be excluded
from rank-and-file bargaining units might nevertheless
appropriately be represented in a separate unit so long
as their positions were not of a type which held a poten-
tial for conflict of interest with respect to labor rela-
tions policies. The Supreme Court disagreed, holding
that it was the intent of Congress to exclude from the
protection of the Act the entire category of employees
whom the Board has regarded as "managerial" under
its traditional definition as persons who "formulate and
effectuate management policies by expressing and mak-
ing operative the decisions of their Employer."' Thus,
the Board, in Bell Aerospace, did not purport to be
changing the definition of "managerial employees" for
purposes of exclusion from other bargaining units and
its definition in that regard has remained unchanged.
Under these circumstances, any departure from our
consistent precedent of refusing to entertain postelec-
tion challenges would be both unwise and unjustified.
Respondent had full opportunity to assert that the
quality control personnel here involved should have
been excluded from the bargaining unit at the preelec-
tion stage and it had a further opportunity to challenge
any of such personnel whom it believed to be
"managerial" at the time of the voting . Instead , it stipu-
lated that they were appropriately within the unit and
entered no challenge to any ballot of any of the person-
nel whose status it now tardily seeks to litigate. To
avoid unjustifiable delay in the effectuation of the pur-
poses of our Act and to prevent dilution of the Board's
firm, soundly based policy against postelection chal-
lenges, we shall require the Respondent to honor its
stipulation and therefore, we must deny its request for
a hearing to determine the status of the employees in
question. Accordingly, we shall grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
4 Palace Laundry Dry Cleaning Corporation, 75 NLRB 320, 323 at fn 4
(1947), specifically cited with approval at fn 15 of the Supreme Court's
opinion in Bell Aerospace
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent has maintained its principal office and
place of business in New York, New York, and various
other facilities in the States of the United States , includ-
ing the plant involved herein at Woodburn , Indiana,
where it is engaged in the manufacture , sale, and distri-
bution of automotive tires and related products. Dur-
ing the past year , a representative period , the Respond-
ent manufactured , sold, and distributed at said plant
products valued in excess of $50 ,000 which were
shipped from said plant to States other than the State
of Indiana.
We find , on the basis of the foregoing , that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
Chauffeurs , Teamsters , Warehousemen and Helpers
Local Union No. 414, a/w International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers
of America , is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
a. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective -bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All quality control men, draftsmen, tire con-
struction technicians, senior lab technicians em-
ployed by the Employer at its plant at U.S. High-
way 24 East, Woodburn, Indiana ; but excluding
all senior production technicians , all senior quality
control men , all office clerical employees, all
guards, all professional employees and supervisors
as defined in the Act, and all other employees.
2. The certification
On November 1, 1973, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 25 designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent. The Union was certified as the collec-
tive-bargaining representative of the employees in said
unit on April 8, 1974 , 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 November 21, 1973, and
particularly on or about April 23, 1974, 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. Commencing on or about April
8, 1974, and particularly on or about April 23, 1974,
and continuing at all times thereafter to date , the Re-
spondent has refused , and continues to refuse , to recog-
nize and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees in
said unit.
Accordingly, we find that the Respondent has, since
April 8, 1974, and more particularly since April 23,
1974, and at all times thereafter , refused to bargain
collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit, and that,
by such refusal , Respondent has engaged in and is en-
gaging 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 operations de-
scribed in section I , above , have a close , initmate, 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached , embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit . See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
B F. GOODRICH TIRE CO
merce 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 Com-
pany, 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. B. F. Goodrich Tire Company, a Division of the
B. F. Goodrich Company, is an employer engaged in
commerce within the meaning of Section 2(6) and '(7)
of the Act.
2. Chauffeurs, Teamsters, Warehousemen and Help-
ers Local Union No. 414, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All quality control men, draftsmen, tire construc-
tion technicians, senior lab technicians employed by
the Employer at its plant at U.S. Highway 24 East,
Woodburn, Indiana; but excluding all senior produc-
tion technicians, all senior quality control men, all of-
fice clerical employees, all guards, all professional em-
ployees and supervisors as defined in the Act, and all
other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since April 8, 1974, the above-named labor organ-
ization has been and now is the certified and exclusive
representative of all employees in the aforesaid appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about April 8, 1974, and more
particularly on or about April 23, 1974, 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 appropirate unit, Respondent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering 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 engag-
ing 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
751
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, B. F. Goodrich
Tire Company, a Division of the B. F. Goodrich Com-
pany, 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 Chauffeurs, Teamsters, Ware-
housemen and Helpers Local Union No. 414, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All quality control men, draftsmen, tire con-
struction technicians, senior lab technicians em-
ployed by the Employer at its plant at U.S. High-
way 24 East, Woodburn, Indiana ; but excluding
all senior production technicians, all senior quality
control men, all office clerical employees, all
guards, all professional employees and supervisors
as defined in the Act, and all other employees.
(b) In any like or related manner interfering with,
restraining, or coering 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its plant at Woodburn, Indiana, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 25, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
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. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 "
752 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 con-
cerning rates of pay , wages, hours , and other terms
and conditions of employment with Chauffeurs,
Teamsters, Warehousemen and Helpers Local
Union No. 414, a/w Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees 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 representative 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 under-
standing in a signed agreement . The bargaining
unit is:
All quality control men, draftsmen , tire con-
struction technicians , senior lab technicians em-
ployed by the Employer at its plant at U.S. High-
way 24 East , Woodburn, Indiana ; but excluding
all senior production technicians , all senior quality
control men, all office clerical employees, all
guards , all professional employees and supervisors
as defined in the Act, and all other employees.
B. F. GOODRICH TIRE COMPANY, A
DIVISION OF THE B. F. GOODRICH
COMPANY