Eliason Corporation

National Labor Relations Board - Board Decisions

Jul 6, 1981

256 N.L.R.B. 1121 (N.L.R.B. 1981)

ELIASON CORPORATION 1121
Eliason Corporation and Sheet Metal Workers' In-
ternational Association, Local No. 355, AFL-
CIO. Case 20-CA-15937
July 6, 1981
DECISION AND ORDER
Upon a charge filed on January 8, 1981, by Sheet
Metal Workers' International Association, Local
No. 355, AFL-CIO, herein called the Union, and
duly served on Eliason Corporation, herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional Di-
rector for Region 20, issued a complaint on Febru-
ary 13, 1981, against Respondent, alleging that Re-
spondent 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
17, 1980, following a Board election in Case 20-
RC-14957, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about December
22, 1980, and at all times thereafter, Respondent
has refused, and -,ntinues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, and has refused to fur-
nish it with certain information 2 alleged to be nec-
essary for, and relevant to, the Union's perform-
ance of its duties as exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On February 24, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
I Official notice is taken of the record in the representation proceed-
ing, Case 20-RC-14957, 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 LTV Electrosystems. 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
(D.C.Va. 1967): Follert Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec 9(d) of the NLRA, as amended
2 The Union has requested that Respondent provide it with the follow-
ing information concerning each unit employee: Name, birthdate, date
hired, number of employees presently in the unit, job title or name,
straight time hourly wage rate for each employee, and number of de-
pendents. It further requests the following information from the payroll
statistics: Average hours worked per employee (both straight time and
overtime), average hours worked at overtime, average employment cost
for overtime, health and welfare, pension, holidays (including the number
of holidays and fringe benefits presently received by employees). a copy
of their health and welfare plan, and the present hourly wages (rate of
pay) for each employee
256 NLRB No. 167
On March 5, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment,3 and the Board thereafter, on
March 13, issued an order transferring the proceed-
ing to itself and a Notice To Show Cause why the
General Counsel's motion should not be granted.
On April 2, Respondent filed an answer to the
General Counsel's Motion for Summary Judgment
and to the Union's joinder in motion and a brief in
opposition to said motion.
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 to the Gener-
al Counsel's Motion for Summary Judgment, Re-
spondent essentially contests the validity of the
Union's certification. Thus, while Respondent
admits that it has refused to bargain with the Union
or to provide it with the requested information, it
nevertheless denies having violated the Act, con-
tending rather that because of certain alleged pree-
lection and election misconduct purportedly en-
gaged in by the Union's observer, Roy Hutton, in
the underlying representation proceeding, the
Union should not have been certified as the collec-
tive-bargaining representative of its employees.
A review of the record herein, including the
record in Case 20-RC-14957, reveals that pursuant
to a Stipulation for Certification Upon Consent
Election entered into by Respondent and the
Union, and approved by the Regional Director for
Region 20 on May 14, 1980, an election was held
on June 12, 1980, among Respondent's employees
in an appropriate unit. 4 The tally of ballots showed
that of approximately 17 eligible voters, 6 cast bal-
lots in favor of, and 3 against, the Union, with I
nondeterminative challenged ballot remaining. On
June 18, 1980, Respondent filed timely objections
to the election, alleging, as it does here, that the
Union's observer engaged in certain preelection
and election misconduct warranting setting aside
the election. Following an investigation into Re-
spondent's objections, the Regional Director issued
a The General Counsel's Motion for Summary Judgment was initially
based on the mistaken belief that Respondent had failed to file an answer
to the complaint. However, having timely received an answer to the
complaint, the General Counsel amended her Motion for Summary Judg-
ment, acknowledging receipt of Respondent's answer, but contending
that no factual issues exist which would warrant a hearing in this case.
On March 12, the Union filed a Joiner in Motion for Summary Judg-
ment requesting reasonable attorneys' fees on the ground that Respond-
ent's refusal to bargain was "Patently frivolous "
I The appropriate unit consists of all production and maintenance em-
ployees employed at the Employer's Woodland. California, Easy Swing
Door Division, including warehouse employees. shipping and receiving
employees and drivers; excluding all office clerical employees, Econo-
Cover Division employees, guards and supervisors as defined in the Act
FLIASON CORORATION 21
1122 DI' tISI()NS ()1 NA I IONAl ABi)R R lA I IONS IIARI)
a Report on Objections recommending that Re-
spondent's objections be overruled in their entirety
and that the Union be certified as the exclusive col-
lective-bargaining representative of the employees
in the above-described unit. Respondent thereafter
filed exceptions to the Regional Director's report
and the Board, on December 17, 1980, issued its
Decision and Certification of Representatives
adopting the Regional Director's findings and rec-
ommendations and certifying the Union as the ex-
clusive collective-bargaining representative of the
employees in the appropriate unit. As noted, Re-
spondent's defenses in the instant case are based on
matters previously raised in the underlying repre-
sentation proceeding which have heretofore been
considered and rejected by the Board.
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.6
All issues raised by Respondent in this proceed-
ing, except for the request for information, were or
could have been litigated in the prior representa-
tion proceeding, and Respondent does not offer to
adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that
any special circumstances exist herein which would
require the Board to reexamine the decision made
in the underlying representation proceeding. 7 Fi-
nally, although Respondent denies that the infor-
mation sought by the Union is necessary to the col-
lective-bargaining process, it is clear that the infor-
mation requested relates to the employees' names,
classifications, benefits, and the like and is pre-
sumptively relevant and necessary for the Union to
be able to bargain intelligently and to represent
adequately the employees.8 It is clear, based on the
5 Not found in bound volumes of Board Decisions
6 See Pitshburgh Plare Glass Co. v. .IL.R.B.. 13 UIS 146. It
2
(q1141
Rules and Regulations of the Board, Sees. 102.67(f and 10
2
J.
9
(c).
' Respondent contends that the Board's review of the Regional )irec-
tors's Report on Objections was dcfective in that it did not h the
entire investigative record before it when it adopted the findings and rec
ommendations contained therein In support thereof, Respondent, cting
Prestolie Wire Division v N.L.R.B., 592 F.2d 302 (6th Cir. 1979), argues
that the Board should hold "an evidentiary hearing" on the issues raised
by its affirmative defenses, We find iio merit to Respondent's conltention
inasmuch as we disagree with the court's holding in Preytoit and have
respectfully declined to follow it. See Southwest Color Printing Colrpora-
tion, 247 NLRB 917 (1980). Sec. 3(b) of the Act authorizes the Board to
delegate to its regional directors its powers under Sec 9 and places
review of any such delegated action by a regional director ithin the
Board's discretion. We find that it was a proper exercise of our discretion
to adopt the regional director's decision in the underlying representation
matter inasmuch as Responldent's exceptions, as found by the Board
therein, raised no substantial or material issues to warrant a hearing Alisi
Chalmers Corporation, 252 NLRB 606 (1980).
8 Borden, Inc.. Borden Chemical Division, 235 NLRB 982 (1978)
pleadings and exhibits, that Respondent is refusing
to recognize, to meet, to bargain, and/or to furnish
the necessary and relevant information in order to
contest the Union's certification. We therefore find
that Respondent has not raised any issue which is
properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the General Coun-
sel's Motion for Summary Judgment.9
On the basis of the entire record, the Board
makes the following:
FINI)IN(S OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Michigan corporation engaged
in the manufacture and sale of all-purpose swinging
doors at its Woodland, California, facility. During
the past calendar year, a representative period, Re-
spondent had gross receipts in excess of $500,000
and, during the same period, sold and shipped from
its Woodland, California, facility goods valued in
excess of $50,000 directly to points and places lo-
cated outside the State of California.
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.
11. THE I.ABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association,
Local No. 355, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
111. IHF UNFAIR ABOR 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
employed at Respondent's Woodland, Califor-
nia, Easy Swing Door Division, including
warehouse employees, shipping and receiving
employees and drivers; excluding all office
clerical employees, Econo-Cover Division em-
ployees, guards and supervisors as defined in
the Act.
T Ihe Uniior's request for attorneys fees is hereby denied as we do not
finid Respo ndent's defenses toI be "patently friolous. Ifleck's Inc.. 215
NlRB 765 (1974)
FI 1AS(N CORPORATION 1123
2. The certification
On June 12, 1980, 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 20, 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 December 17, 1980, and the Union continues to
be such exclusive representative w ithin the mean-
ing of Section 9(a) of the Act.
B. The Reques 7To Bargain and Respondtnt'l
R efusal
Commencing on or about December 22, 1980,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit and to
furnish it with information relevant to, and neces-
sary for, the purpose of collective bargaining.
Commencing on or about December 22, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and to bargain with the Union as the exclusive rep-
resentative for collective bargaining of all employ-
ees in said unit, and to provide it with that infor-
mation.
Accordingly, we find that Respondent has, since
December 22, 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 to furnish it with information
which is relevant and necessary for collective bar-
gaining, and that, by such refusals, 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 I ABOR
PRACTICES UPON COMMI:RCF.
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, and to provide the Union, upon request,
with information relevant and necessary for collec-
tive bargaining.
In order to insure that the employees in the ap-
propriate unit will he 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 lar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NILRB 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. Eliason Corporation is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Sheet Metal Workers' International Associ-
ation, Local No. 355, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees
employed at Respondent's Woodland, California,
Easy Swing Door Division, including warehouse
employees, shipping and receiving employees and
drivers, but excluding all office clerical employees,
Econo-Cover Division employees, guards and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since December 17, 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 December 22, 1980,
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, and to
furnish it, as requested, with information which is
relevant and necessary for collective bargaining,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
El IASON CORPORATION 23
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the aforesaid refusals 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,
Eliason Corporation, Woodland, California, 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 Sheet Metal Work-
ers' International Association, Local No. 355,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees
employed at Respondent's Woodland, Califor-
nia, Easy Swing Door Division, including
warehouse employees, shipping and receiving
employees and drivers; excluding all office
clerical employees, Econo-Cover Division em-
ployees, guards and supervisors as defined in
the Act.
(b) Refusing to provide to the above-named
Union, upon request, information relevant and nec-
essary for the purpose of collective bargaining.
(c) 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 and further provide
the Union with the names, date of birth, and date
of hire of each unit employee, the number of em-
ployees presently in the unit, their job title or
name, the straight time hourly wages rate for each
unit employee, and their number of dependents.
Respondent shall also furnish the Union with the
average hours worked per employee (both straight
time and overtime), average hours worked at over-
time, average employment cost for overtime, infor-
mation pertaining to its health and welfare and
pension benefits, holidays (including the number of
holidays and fringe benefits presently received by
employees), a copy of their health and welfare
plan, the present hourly wages (rate of pay) for
each employee, and any other information request-
ed by the Union which is relevant and necessary
for the purpose of collective bargaining.
(b) Post at its Woodland, California, facility
copies of the attached notice marked "Appen-
dix." 1 0 Copies of said notice, on forms provided by
the Regional Director for Region 20, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
In 1 the evesit that this Order is enforced by a Judgment of a United
States Court of Appeals, the swords i the olltice reading "Posted hby
Order of the National Labor Relations loard" hall read "Posted I'ursu-
ailt to a Judgmenlt of the United States Court f Appeals lnfliorcing an
Order of the National L.abor Relations IBoard
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 Sheet Metal Workers's International As-
sociation, Local No. 355, AFL-CIO, as the ex-
clusive representative of the employees in the
bargaining unit described below or refuse to
provide it with information which is necessary
and relevant for purpose of collective bargain-
ing.
Wli 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-
- -- ----
ELIASON CORPORATION 1125
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
employed at the Employer's Woodland,
California, Easy Swing Door Division, in-
cluding warehouse employees, shipping and
receiving employees and drivers; excluding
all office clerical employees, Econo-Cover
Division employees, guards and supervisors
as defined in the Act.
WE Wll.l. provide to the Union, as request-
ed, the names of each unit employee, their
date of birth and date of hire, the number of
employees presently in the unit, their job title
or name, the straight time hourly wages rate
for each unit employee and their number of
dependents. WE WILL further provide it with
the average number of hours worked per em-
ployee (both straight time and overtime), aver-
age hours worked at overtime, average em-
ployment cost for overtime, information per-
taining to the health and welfare and pension
benefits, holidays (including the number of
holidays and fringe benefits presently received
by employees), a copy of our health and wel-
fare plan, the present hourly wages (rate of
pay) for each employee, and any other infor-
mation requested by the Union which is neces-
sary and relevant for the purpose of collective
bargaining.
ELIASON CORPORATION