Kusan Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 4, 1980

251 N.L.R.B. 1629 (N.L.R.B. 1980)

KUSAN MANUFACTURING COMPANY Ih2o
Kusan Manufacturing Company, a Division of
Kusan, Inc. and District Lodge 155, of the In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO. Case 26-CA-8474
September 4, 1980
DECISION AND ORDER
Upon a charge filed on June 9, 1980, by District
Lodge 155, of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Kusan Manu-
facturing Company, a Division of Kusan, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 26, issued a complaint
on June 19, 1980, 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 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 April 7,
1980, following a Board election in Case 26-RC-
6090, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about May 27, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 25, 1980, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 7, 1980, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 10, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent has
filed no response to the Notice To Show Cause.
Upon the entire record in this proceeding, the
Board makes the following:
I Official notice is taken of the record in the representation proceed-
ing, Case 26-RC-6090, 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 Electrosysrems. 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 FSupp 573
(DC.Va. 1967); Follefrr Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir 1968); Sec 9(d) of the NLRA, as amended
251 NLRB No. 174
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent con-
tends that the Union should not have been certified
because it engaged in improper and unlawful con-
duct which affected the results of the election. Re-
spondent admits that it refused to bargain with the
Union, but contends that it did so for the sole pur-
pose of contesting the Board's refusal to either sus-
tain or direct a hearing on its objections to the
election. Counsel for the General Counsel contends
that Respondent seeks to relitigate issues previously
considered in the underlying representation pro-
ceeding.
Our review of the record herein, including the
record in Case 26-RC-6090, discloses that pursuant
to a Stipulation for Certification Upon Consent
Election an election was conducted among the em-
ployees in the stipulated unit on October 19, 1979.
The tally of ballots showed that 118 votes were
cast for, and 107 against, the Union, with I nonde-
terminative challenged ballot. On October 26, 1979,
Respondent filed timely objections to conduct af-
fecting the results of the election, alleging in sub-
stance that the Union improperly circulated a peti-
tion containing the signatures of union supporters,
intimidated employees so that they would sign the
petition, and made factual misrepresentations to
employees at a time when Respondent could not
effectively respond. After an investigation the Re-
gional Director for Region 26 issued his Report on
Objections in which he recommended that the ob-
jections be overruled. Respondent subsequently
filed exceptions to the report, and on April 7, 1980,
the Board issued a Decision and Certification of
Representative which adopted the Regional Direc-
tor's findings and recommendations.
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. 2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
2 See Pttsburgh Platt (las Co, .\ N R.H, 313 S 146. 162 I19411;
Rules and Regulations of the Board, Secs 102 h,7(fl and 10)2 69(c)
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a cor-
poration with an office and place of business in
Franklin, Tennessee, has been engaged in custom
injection molding. During the past 12 months, a
representative period, Respondent, in the course
and conduct of its business operations, has sold and
shipped from its Franklin, Tennessee, facility prod-
ucts, goods, and materials valued in excess of
$50,000 directly to points outside the State of Ten-
nessee. During the past 12 months, a representative
period, Respondent, in the course and conduct of
its business operations, has also purchased and re-
ceived at its Franklin, Tennessee, facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Tennessee.
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.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge 155, of the International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production
and maintenance employees employed by Re-
spondent at its facilities located on Eddy Lane,
Franklin, Tennessee, excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
2. The certification
On October 19, 1979, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 26, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on April 7,
1980, 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 May 19, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 27, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
May 27, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 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.
In order to insure that the employees in the ap-
propriate unit will be 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
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KUSAN MANUFACTURING COMPANY 1631
the recognized bargaining representative in the ap-
propriate 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 (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. Kusan Manufacturing Company, a Division of
Kusan, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. District Lodge 155, of the International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees employed by Respond-
ent at its facilities located on Eddy Lane, Franklin,
Tennessee, excluding all office clerical employees,
professional 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 April 7, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 May 27, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal 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,
Kusan Manufacturing Company, a Division of
Kusan, Inc., Franklin, Tennessee, 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 District Lodge 155,
of the International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed by Re-
spondent at its facilities located on Eddy Lane,
Franklin, Tennessee, excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
(b) 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.
(b) Post at its Franklin, Tennessee, facility copies
of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 26, 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 26,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing and
Order of theNational Labor Relations Board "
1032 I)DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
APPENDIX
No-rTICE To EMPIOYEES
POSTED BY ORDER OF THE
NATIONAlI LABOR RELATIONS BOARD
An Agency of the United States Government
WF WILl NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with District Lodge 155, of the International
Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE Wlt.I. 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 WII.L, upon request, bargain with the
above-named Union, as the exclusive repre-
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 full-time and regular part-time produc-
tion and maintenance employees employed
by us at our facilities located on Eddy Lane,
Franklin, Tennessee, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
KUSAN MANUFACTURING COMPANY,
A DIVISION OF KUSAN, INC.