Lake Odessa Machine Products, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1974

210 N.L.R.B. 90 (N.L.R.B. 1974)

1P DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take Odessa Machine Products, Inc., a Wholly-
Owned Subsidiary of Sparton Corporation and
International Union, Allied Industrial Workers of
America, AFL-CIO. Case 7-CA-10696
April 17, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on November 1, 1973, by
International Union, Allied Industrial Workers of
America, AFL-CIO, herein called the Union, and
duly served on Lake Odessa Machine Products, Inc.,
a wholly-owned subsidiary of Sparton Corporation,
herein called the Respondent , the General Counsel
of the National Labor Relations Board, by the
oval Director for Region 7, issued a complaint
on November 13, 1973, against Respondent , alleging
that Respondent had engaged in and was engaging in
gnfair labor practices affecting commerce within the
meaning of Section 8(aX5) 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
gpmplaint alleges in substance that on October 4,
1973, following a Board election in Case
1-RC-11408 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees , in,the unit ! foundappropriate; I
and that, commencing on or about October 29, 1973,
and at all times thereafter , Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative , although the Union has requested
and is requesting it to do so. On November 21, 1973,
Repondent filed its answer to the complaint
admitting in part, and denying in part , the allegations
in the complaint.
On December 3, 1973 , counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 10,
973, 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-
dent thereafter filed a response to Notice To Show
I Ofd fictal notice is taken of the record in the representation proceeding,
Case 7-RC-11408, 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 Ekctrosystemr, Inc., 166 NLRB 938, enfd . 388 F.2d 683 (C.A. 4, 1968);
Gatdta Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
S.tafype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164
110 NLRB No. 13
Cause , entitled Statement and Motions in Opposition
to General Counsel 's Summary Judgment Motion.
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 to the complaint and its response to
the Notice To Show Cause, Respondent contends
that the certification of the Union was improper in
that the Board erred in failing to sustain, or to
conduct a hearing upon, certain of its objections in
the second election herein.
Our review of the record indicates that pursuant to
a Stipulation for Certification Upon Consent Elec-
tion, the first election was conducted on November
1, 1972. The tally of ballots indicated that 25 valid
ballots were cast for, and 49 against, the Union, and
4 ballots were challenged. The Union filed timely
objections and, after a hearing, a Hearing Officer
recommended that the election be set aside and a
new one conducted. No exceptions were filed and, on
February 7, 1973, the Board issued its Decision,
Order, and Direction of Second Election in which it
adopted the Hearing Officer's recommendations.
The second election was conducted on March 5,
1973, and the tally of ballots indicated that of 78
eligible voters 52 cast valid ballots for, and 22
against, the Union. The Respondent then filed seven
timely objections. The Regional Director, after an
investigation, on April 26, 1973, issued his report on
objections in which he recommended that they be
overruled in their entirety. Respondent then filed
exceptions and a supporting brief concerning certain
of the objections2 in which, inter alia, it requested a
hearing. However, on October 4, 1973, the Board
issued its Decision and Certification of Representa-
tive3 in which it found that the exceptions raised no
material or substantial issues of fact or law which
would justify reversing the Regional Director's
findings or require a hearing, and, accordingly,
adopted the Regional Director's findings, conclu-
sions, and recommendations and certified the Union.
Respondent now contends (a) that, inasmuch as its
objections raised substantial and material issues of
fact, the Board should reconsider its decision in the
representation case or reopen the record therein, and
NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
2 Objections 2, 3, 4, and 6 alleged that the Union had distributed
documents containing substantial misrepresentations of material tact and
had made false statements , thereby misusing Board processes, all at a time
when Respondent was unable to make effective answers.
3 206 NLRB No. 73.
LAKE ODESSA MACHINE
(b) that the Board should articulate its rationale in
the case . As to (a), the Board specifically found in its
Decision and Certification of Representative that
Respondent 's exceptions raised no substantial and
material issues which would require a hearing.
Further, Respondent's answer to the complaint and
response to the Notice To Show Cause fail to
demonstrate extraordinary circumstances warranting
reconsideration under Section 102.65(e) of the
Board's Rules and Regulations , and in fact appear to
raise nothing not previously considered . As to (b),
the Regional Director 's articulation of his rationale,
which the Board adopted as its own , was adequate.4
It accordingly appears that Respondent has raised no
issue that it did not, or could not, have raised in the
representation proceeding.
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.5
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.
Respondent also contends that the Board should
remand the unfair labor practice case for hearing
because (a) otherwise the Board and reviewing courts
will be denied a complete record, and (b) Respon-
dent has a right to a hearing in unfair labor practice
cases under the Act and the Board's Rules and
Regulations . As to (a), the Board's Decision and
Certification of Representative finding no merit in
the Respondent's exceptions necessarily ruled that a
complete record for all purposes, including that of
judicial review, has been developed. As to (b), it is
now well established that, where no substantial issues
of fact and law are presented, neither our Act nor our
Rules and Regulations require a hearing in the
subsequent unfair labor practice proceeding.6
As we have found merit in none of Respondent's
contentions, we shall grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board nukes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, Lake Odessa Machine Products, Inc.,
a wholly-owned subsidiary of the Sparton Corpora.
tion, is, and has been at all times material herein, a
Michigan corporation . At all times material herein,
Respondent has maintained its principal office and
place of business at 1201 N. Fourth Avenue, in the
city of Lake Odessa, and State of Michigan, the only
facility involved in this proceeding, and has been at
all times material herein engaged in the manufacture
of metal stampings , wire products , and related
products.
During the year ending December 1972, which
period is representative of its operations , Respondent
in the course and conduct of its business operations
(a) purchased and caused to be transported and
delivered at its Lake Odessa , Michigan , place of
business goods and materials valued in excess of
$750,000, of which goods and materials valued in
excess of $750,000 were transported and delivered to
its place of business in Lake Odessa , Michigan,
directly from points located outside the State of
Michigan, and (b) sold and distributed products
valued in excess of $500,000, of which products
valued in excess of $500,000 were shipped from said
place of business directly to points located outside of
the State of Michigan.
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
International Union, Allied Industrial Workers of
America, 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 the Respondent
constitute a unit appropriate for collective-bargain-
* The Board has held that no greater articulation - of its rationale is
required of it. Chaves Virginia Corporation, a Wholly Owned Subsidiary of
BCC Industries, Inc, 206 NLRB No. 122.
5 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 ( 1941);
Rules and Regulations of the Board , Secs. 102.67(f) and 102 .69(c).
6 See cases cited in fn. 3 of Chayes Virginia Corporation, A Wholly Owwd
Subsidiary of BCC Industries, Inc., supra
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including all shipping and receiving employees
employed by the Employer at its facility located
at 1201 Fourth Avenue, Lake Odessa, Michigan;
but excluding all office clerical employees, profes-
sional employees, technical employees, guards,
and supervisors as defined in the Act.
2. The certification
On March 5, 1973, 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 7 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 October 4, 1973, 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 October 24, 1973, 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 October 29, 1973, and continu-
ing at all times thereafter to date, the Respondent has
refused, 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 the Respondent has,
since October 29, 1973, 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. Lake Odessa Machine Products, Inc., a wholly-
owned subsidiary of Sparton Corporation, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union, Allied Industrial Workers
of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including all shipping and receiving employees
employed by the Employer at its facility located at
1201 Fourth Avenue, Lake Odessa, Michigan; but
excluding all office clerical employees, professional
employees, technical employees, guards, and supervi-
sors 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 October 4, 1973, 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 October 29, 1973, 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.
LAKE ODESSA MACHINE
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,
Lake Odessa Machine Products, Inc., a wholly-
owned subsidiary of Sparton Corporation, Lake
Odessa, Michigan, 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 International Union,
Allied Industrial Workers of America, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All production and maintenance employees,
including all shipping and receiving employees
employed by the Employer at its facility located
at 1201 Fourth Avenue, Lake Odessa, Michigan;
but excluding all office clerical employees, profes-
sional employees, technical employees, guards,
and supervisors 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 Lake Odessa, Michigan, facility
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 7, 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 Respon-
93
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
T 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
concerning rates of pay, wages , hours , and other
terms and conditions of employment with Inter-
national Union , Allied Industrial Workers of
America , AFL-CIO, as the exclusive representa-
tive 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 production and maintenance employ-
ees, including all shipping and receiving
employees employed by the Employer at its
facility located at 1201 Fourth Avenue, Lake
Odessa , Michigan ; but excluding all office
clerical employees , professional employees,
technical employees , guards , and supervisors
as defined in the Act.
LAKE ODESSA MACHINE
PRODUCTS, INC., A
WHOLLY-OWNED
SUBSIDIARY OF SPARTON
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive ance with its provisions may be directed to the
days from the date of posting and must not be Board's Office, 500 Book Building, 1249 Washington
aUered, defaced, or covered by any other material. Boulevard, Detroit, Michigan 48226, Telephone
Any questions concerning this notice or compli- 313-226-3200.