Elixir Industries

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 705 (N.L.R.B. 1974)

ELIXIR INDUSTRIES 705
Elixir Industries , Elkhart Putty Division and United
Steelworkers of America , AFL-CIO-CLC. Case
25-CA-6241
September 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
sponse to Notice to Show Cause, entitled "Opposition
to General Counsel's Motion to Strike and for Sum-
mary Judgment."
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:
Upon a charge filed on April 12, 1974, by United
Steelworkers of America, AFL-CIO-CLC, herein
called the Union, and duly served on Elixir Industries,
Elkhart Putty Division, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
25, issued a complaint on April 30, 1974, against Re-
spondent, 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, and notice of hearing before an Adminis-
trative 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 March 19, 1974,
following a Board election in Case 25-RC-5437 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 March 19, 1974, and continuing to date,
and more particularly on or about March 27, 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 represen-
tative, although the Union has requested and is re-
questing it to do so. On May 20, 1974, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On May 30, 1974, counsel for the General Counsel
filed directly with the Board a "Motion to Strike Por-
tions of Respondent's Answer and Motion for Sum-
mary Judgment." Subsequently, on June 6, 1974, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
Official notice is taken of the record in the representation proceeding,
Case 25-RC-5437, as the term "record" is defined in Secs . 102.68 and 102
.69(f) of the Board's Rules and Regulations , Series 8, as amended . See LTV
Electrosystems, 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., 1967); Follett
Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968 ); Sec. 9(d) of
the NLRA.
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its "Opposi-
tion to the General Counsel's Motion to Strike and for
Summary Judgment," Respondent denies the validity
of the election in Case 25-RC-5437 and of the
Union's certification resulting therefrom. The Gener-
al Counsel contends that Respondent is raising the
same issues that it litigated or could have litigaged in
the underlying representation proceeding. Upon the
record before us, including the record in Case 25-
RC-5437, we agree with the General Counsel and find
no merit in Respondent's position.
The record in Case 25-RC-5437 discloses that in a
secret ballot election conducted pursuant to a stipula-
tion for Certification Upon Consent Election, 16 bal-
lots were cast, of which 6 were for and 7 were against
the Union and 3 ballots were challenged. The chal-
lenged ballots were thus sufficient in number to affect
the results of the election and the Regional Director
ordered that a hearing be held on the issues raised by
the challenges. After a hearing, the Hearing Officer
issued a Report on Challenged Ballots in which he
recommended that the three challenges be overruled
and that the Regional Director be directed by the
Board to open and count the challenged ballots and
issue a revised tally of ballots. Respondent filed ex-
ceptions to the Hearing Officer's report together with
a supporting brief in which is contended that the de-
termination of the challenged ballots was erroneous
and that the Hearing Officer did not conduct a fair
and impartial hearing.
The Board, on March 4, 1974, issued a Decision
and Direction to Open and Count Challenged Ballots
in which it adopted the Hearing Officer's findings and
recommendations by overruling the three challenged
ballots and directing that they be opened and counted
and a revised tally of ballots be issued. Thereafter, a
revised tally of ballots was served on the parties and
a Certification of Representative was issued to the
Union. In its answer to the complaint and response to
Notice To Show Cause, Respondent is attempting to
raise issues which were raised or could have been
raised 2 in the underlying representation case. This it
2 The allegation that the designation of a member of the Regional
213 NLRB No. 98
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may not do.
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
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.' We shall, accordingly, grant the Motion
for Summary Judgment.'
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation with its prin-
cipal office and place of business at Gardena, Califor-
nia, operates various other facilities in the States of
the United States, including one at Elkhart, Indiana,
at which it manufactures and sells products and ac-
cessories for mobile homes and recreational vehicles.
During the past year, Respondent manufactured and
sold products valued in excess of $50,000 which were
shipped from its Elkhart, Indiana, facility directly to
States other than Indiana. During the same period,
Respondent purchased and delivered to its Indiana
facility goods valued in excess of $50,000 which were
shipped to said facility directly from States other than
Indiana.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
Director's staff as Hearing Officer violated the Administrative Procedure
Act, 5 U.S.C. § 554(d) could have been , but was not, raised in the underlying
representation proceeding.
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).
4 In its answer , the Respondent denies, inter alia, that it refused to recog-
nize and/or bargain with the Union. Attached to the General Counsel's
motions, however , is an exchange of correspondence between the Union and
Respondent dated March 26 and 27, 1974, respectively , in which the former
requests bargaining and the latter explicitly refuses to bargain on the ground
that it wishes to contest the Board 's determination in the courts. Since Re-
spondent does not deny the authenticity of these letters , we shall deem them
to be true and it is so found.
s In view of our determination herein, we find it unnecessary to rule upon
the General Counsel's motion to strike portions of Respondent 's answer to
the complaint.
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.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO-CLC,
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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent, including truck drivers employed at
its facility, exclusive of all office clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
2. The certification
On August 31, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 25 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on March 19, 1974, and the Union contin-
ues 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 March 26, 1974, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about March 27, 1974, 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 collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since March 27, 1974, 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, Respondent
ELIXIR INDUSTRIES 707
has engaged in and is engaging in unfair labor practic-
es 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
described in section 1, above , have a close , intimate,
and substantial relationship to trade , traffic , and com-
merce 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 mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain 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); 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 Con-
struction 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. Elixir Industries, Elkhart Putty Division, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworders of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent, including truck drivers employed at its
facility, exclusive of all office clerical employees, pro-
fessional employees , guards and supervisors as de-
fined 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 August 31, 1973, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about March 19, 1974, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent in the appropriate 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
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 mean-
ing 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 Rela-
tions Board hereby orders that Respondent, Elixir
Industries, Elkhart Putty Division, Elkhart, Indiana,
its officers , agents , successors, and assignes , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with United Steelworkers of the
America, AFL-CIO-CLC, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All production and maintenance employees of
Respondent, including truck drivers employed at
its facility, exclusive of all office clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
(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
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility in Elkhart, Indiana, copies of
the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 25, 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. 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 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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."
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere 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 representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees
of the Employer, including truck drivers em-
ployed at its facility, exclusive of all office cler-
ical employees, professional employees, guards
and supervisors as defined in the Act.
ELIXIR INDUSTRIES, ELK-
HART PUTTY DIVISION
(Employer)
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 United
Steelworkers of America , AFL-CIO-CLC, as the
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, ISTA Center, Sixth Floor, 150 West
Market Street, Indianapolis, Indiana 46204, Tele-
phone 317-633-8921.