Michigan Rubber Products, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1980

251 N.L.R.B. 74 (N.L.R.B. 1980)

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michigan Rubber Products, Inc. and United Rubber,
Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO-CLC. Case 7-CA-17079
August 12, 1980
DECISION AND ORDER
CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on November 15, 1979, by
United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO-CLC, herein called the
Union, and duly served on Michigan Rubber Prod-
ucts, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 7, issued a com-
plaint on November 21, 1979, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 ad-
ministrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 16,
1979, following a Board election in Case 7-RC-
15420, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
6, 1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On December
3, 1979, Respondent filed its answer to the com-
plaint admitting in pa:t, and denying in part, the al-
legations in the complaint. Specifically, Respond-
ent's answer denies that a majority of the employ-
ees in the appropriate unit selected the Union as
their exclusive bargaining representative in the July
19, 1979, election. Respondent also denies that the
Union has been and is now the exclusive bargain-
ing representative in the unit found to be appropri-
ate. Finally, Respondent denies the conclusory alle-
gations that it acted unlawfully in refusing to rec-
ognize and bargain with the Union.
i Official notlice is taken (of the record in the repretnltalilon proceed-
ing. Case 7-RC-15420. as the term "record" is definled in Secs 102 h8i
and 102 69(g) of the Board's Rules and Regulalions. Series 8, aes cnded
See LII' E/ectrtvrcms., Inc., 66 NRB 938 (1967). entd. 388 I 2d thX8
(41h Cir 1968): (olden Age Berage Co., ( 167 NIRB 151 (1967). efd 415
F2d 26 (5th Cir 1969); Interrpe (Co v Pnetrl, 269 I Supp 571
(I)C.Va. 1967). hbllttt Corp.,. 164 NRK 3787 (1967), enfd 197 12d 9
(7th Cir 1968). Sec. 9(d) of the NLRA . as amended
251 NLRB No. 20
On December 26, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 9,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
has not 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 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:
Ruling on the Motion for Summary Judgment
As indicated above, Respondent's answer admits
in part, and denies in part, the allegations of the
complaint. Respondent denies the portions of the
complaint that assert the sufficiency of the certifi-
cation in establishing the Union as the exclusive
bargaining representative in the appropriate unit
and the conclusory allegations that Respondent had
violated Section 8(a)(l) and (5) of the Act.
A review of the record reveals that, pursuant to
a Stipulation for Certification Upon Consent Elec-
tion in Case 7-RC-15420, an election was held on
July 19, 1979, in the appropriate unit. The tally
was 38 for, and 31 against, the Union. There were
two challenged ballots. Thereafter, Respondent
filed timely objections to the election. On August
15, 1979, the Regional Director for Region 7 issued
his Report and Recommendation on Objections in
which he recommended that the objections be
overruled, and that a certification of representative
be issued. Respondent filed exceptions to the Re-
gional Director's Report and Recommendation on
Objections with the Board. On October 16, 1979,
the Board issued its Decision and Certification of
Respresentative (not reported in bound volumes of
Board Decisions) in which it adopted the Regional
Director's findings and recommendations.
On October 19, 1979, the Union requested bar-
gaining. Respondent has refused to bargain with
the Union since November 6, 1979.2
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
: h' t I let coait.lililig lic UiToI
'
s requesL t anld Respoindent' refusal
to h.Lirgil arc aillltxeid t( lie (itiLcral CollsCl's NMotion fotr StlllilnarN
Judglltgll e nolle Ih;tl tlhosc letters also cit.l language reqlc1sitig
a.Id dCtl i. erg, l CSt ltixlc l l illlrnllati i rclitix i: I ro lc lgo tllit lI, o e' fur-
th otrnote, i,.Ne r, ltiit o llcg.tionls co clll g . reftsil to suppi il-
torltiiiO l lai l holII Ilic 1 l [n p rittd ii thc 'tllt iallaiti
MICHIGAN RUBBER PRODUCTS, INC. 75
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 3
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
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
Respondent, a Michigan corporation, is engaged
in the manufacture, sale, and distribution of rubber
products at its plant in Cadillac, Michigan. During
the year ending December 31, 1978, which period
is representative of its operations during all times
material hereto, Respondent, in the course and con-
duct of its business operations purchased and
caused to be transported and delivered to its Cadil-
lac plant goods and materials valued in excess of
$50,000, which goods and materials were transport-
ed and delivered to the Cadillac plant directly from
points located outside the State of Michigan.
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.
II1. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. 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:
:' See Plthurgh Plate (;lasv Co \. L R B, 13 1 S 146, 1 2 (41);
Rules and Regulations of the Board. Secs 102 7(0) and 102 6h90)
All full-time and regular part-time production
and maintenance employees employed by Re-
spondent at its facility located at 1200 8th
Avenue, Cadillac, Michigan, but excluding
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
2. The certification
On July 19, 1979, 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
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on October 16, 1979, 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 19, 1979, 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 November 6, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 6, 1979, 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, Respond-
ent 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 oper-
ations described in section , 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.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
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, mak :s the following:
CONCLUSIONS OF LAW
1. Michigan Rubber Products, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO-CLC, is a labor
organization within the meaning 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 facility located at 1200 8th Avenue, Cadil-
lac, Michigan, but excluding office clerical employ-
ees, 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 October 16, 1979, 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 November 6, 1979,
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, Re-
spondent 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, 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)(l) 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,
Michigan Rubber Products, Inc., Cadillac, Michi-
gan, 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 United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO-CLC, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All full-time and regular part-time production
and maintenance employees employed by Re-
spondent at its facility located at 1200 8th
Avenue, Cadillac, Michigan, but excluding
office clerical employees, professional employ-
ees, 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 Cadillac, Michigan, plant copies of
the attached notice marked "Appendix." 4 Copies
of said notice, on forms provided by the Regional
' 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 Hoard" shall read "Posted Pursu-
anlt to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Relations Board."
MICHIGAN RUBBER PRODUCTS. INC. 77
Director for Region 7, 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. Rea-
sonable 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 United Rubber, Cork, Linoleum and Plas-
tic Workers of America, AFL-CIO-CLC, 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 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-
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 Respondent at its facility located at 1200
8th Avenue, Cadillac, Michigan, but exclud-
ing office clerical employees, professional
employees, guards and supervisors as de-
fined in the Act.
MICHIGAN RUBBER PRODUCTS, INC.