H. C. Products Co.

National Labor Relations Board - Board DecisionsFeb 28, 1973

201 N.L.R.B. 1030 (N.L.R.B. 1973)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. C. Products Co. and Aluminum Workers International Union, AFL-CIO, Local 117. Case 38-CA-1546 February 28, 1973 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on August 11, 1972, by Aluminum Workers International Union, AFL-CIO, Local 117, herein called the Charging Party, and duly served on H. C. Products Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Officer-in-Charge of Subregion 38, issued a complaint on August 18, 1972, 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, 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 complaint, as amended,2 alleges in substance that on June 27, 1972, following a Board election in Case 38-RC-1068, Aluminum Workers International Un- ion, AFL-CIO, herein called the Union, was duly certified as the exclusive collective-bargaining repre- sentative of Respondent's employees in the unit found appropriate; 3 and that, commencing on or about July 12, 1972, and more particularly on August 7, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On August 30, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 8, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 18, 1972, 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- i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. , On November 21, 1972 , the motion of the Officer -in-Charge of Subregion 38 to amend the complaint to delete all references to Local 117, except those relating to the identity of the Charging Party, was granted by the Board 3 Official notice is taken of the record in the representation proceeding, dent thereafter 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 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 answer and in its response to the Notice to Show Cause , Respondent contends that it is not obligated to bargain with the Union because the Union's certification was invalid by reason of the Board 's having erroneously sustained one of the Union 's objections to the first of two elections in the underlying representation case and the Regional Director's having erred in his conclusions and recommendations to the Board in his Report on Objections to the second election in that case. We do not agree. The record in Case 38-CA- 1546 indicates that in an election conducted pursuant to a Stipulation for Certification Upon Consent Election among employ- ees in the stipulated unit , the Union failed to receive a majority of the votes and filed objections to conduct affecting the results of the election. After an investigation , the Regional Director issued a Report on Objections in which he recommended that five of the Union's objections be overruled , that one be sustained , that the election be set aside , and that a second election be directed . Respondent timely excepted to the Regional Director's report , contend- ing that Respondent 's statement to the effect that union members could be fined for trying to decertify an incumbent union, which the Regional Director found to be a misstatement of the law and thus, grounds for setting aside the election , should not be accorded the weight given it in the Report on Objections because the law on the subject is unsettled and confusing . The Board , on March 8, 1972, issued a Decision , Order, and Direction of Second Election in which it adopted the findings and conclusions of the Regional Director, set aside the election , and directed a second election. In a second election on April 5, 1972, a majority of the employees in the stipulated unit selected the Union as their exclusive representative for purposes of collective bargaining . The Respondent filed timely Case 38-RC-1068 , 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 Elecrrosystems, Inc, 166 NLRB 938, enfd. 388 F .2d 683 (C.A. 4, 1968), Golden Age Beverage Co. 167 NLRB 151; Inrertype Co v. Penello, 269 F.Supp 573 (D.C. Va , 1967), Follett Corp, 164 NLRB 378, enfd 397 F.2d 91 (C A 7, 1968); Sec 9(d) of the NLRA 201 NLRB No. 137 H. C. PRODUCTS CO. 1031 objections to conduct affecting the results of the election. The Regional Director completed an inves- tigation of the objections and on June 2, 1972, issued his Report on Objections to Second Election in which he recommended that Respondent's objections be overruled and the Union certified. Exceptions to the Regional Director's report were due in Washing- ton, D.C., on or before June 15, 1972. On June 19, 1972, the Board received exceptions and brief, filed by the Respondent, which were postmarked in Peoria, Illinois, on June 16, 1972, after the due date. By letter dated June 26, 1972, the Board rejected the exceptions and brief as being untimely submitted. The Board, accordingly, adopted the recommenda- tions contained in the Regional Director's report, overruled Respondent's objections, and certified the Union. In its answer to the complaint and in its response to the Notice to Show Cause, Respondent again raises the issues determined in the representation proceed- ing. 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.4 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. 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 is an Illinois corporation with an office and place of business in Princeville, Illinois, where it is engaged in the manufacture of building products. During the past 12 months Respondent sold and shipped from its Princeville, Illinois , facility, finished products valued in excess of $50,000 to points outside the State of Illinois. During the same period, Respondent purchased and received at its Princeville facility goods and materials valued in excess of $50,000 which were shipped directly from points outside the State of Illinois. 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 Aluminum Workers International Union, AFL-CIO, is a labor organization within the mean- ing 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: All regular full-time and part-time production and maintenance employees including plant clericals employed by Respondent at its Prince- ville facility but excluding all office clerical employees, laboratory employees, guards, assist- ant foremen, supervisors and professional em- ployees as defined in the Act. 2. The certification On April 5, 1972, 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 13 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 June 27, 1972, 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 July 12, 1972, 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. Com- mencing on or about July 12, 1972, and more 4 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(1) and 102 .69(c). 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particularly on August 7, 1972, 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. Accordingly, we find that the Respondent has, since July 12, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit , and that, by such refusal , Respon- dent 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, 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; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. H. C. Products Co. is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All regular full-time and part-time production and maintenance employees including plant clericals employed by Respondent at its Princeville facility but excluding all office clerical employees, laborato- ry employees, guards, assistant foremen , supervisors and professional employees 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 June 27, 1972, 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 July 12, 1972, and more particularly on August 7, 1972, 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 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 , Respon- dent has interfered with, restrained , and coerced, and is interfering with, restraining , and coercing , employ- ees 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, H. C. Products Co. 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 Aluminum Workers International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All regular full-time and part-time production and maintenance employees including plant clericals employed by Respondent at its Prince- ville facility but excluding all office clerical employees, laboratory employees, guards , assist- H. C. PRODUCTS CO. ant foremen, supervisors and professional em- ployees 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 and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Princeville, Illinois, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Officer-in-Charge of Subregion 38 after being duly signed by Respondent's representa- tive, 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 altered, defaced, or covered by any other material. (c) Notify the Officer-in-Charge of Subregion 38 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. S 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 1033 concerning rates of pay , wages, hours, and other terms and conditions of employment with Alumi- num Workers International Union, AFL-CIO, 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, 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 regular full-time and part-time pro- duction and maintenance employees includ- ing plant clericals employed by Respondent at its Princeville facility but excluding all office clerical employees, laboratory em- ployees, guards, assistant foremen, supervi- sors and professional employees as defined in the Act. H. C. PRODUCTS Co. (Employer) 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 , Savings Center Tower, 10th Floor, 411 Hamilton Boulevard , Peoria , Illinois 61602, Telephone 314-622-4167.