Nomad Division Skyline Corp., Inc.

National Labor Relations Board - Board DecisionsFeb 14, 1979

240 N.L.R.B. 737 (N.L.R.B. 1979)

NOMAD DIVISION SKYLINE CORPORATION, INC. 737 Nomad Division Skyline Corporation, Inc. and Inter- national Brotherhood of Electrical Workers, Local Union 440, AFLCIO-CLC. Case 21-CA-16601 February 14, 1979 DECISION AND ORDER BY CHAIRMAN FANNIN(; AND MtLMBF RS JENKINS ANI) MlRPHY Upon a charge filed on April 25, 1978, by Interna- tional Brotherhood of Electrical Workers, Local Union 440, AFL-CIO-CLC, herein called the Union, and duly served on Nomad Division, Skyline Corporation, Inc.. herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, is- sued a complaint and notice of hearing on June 8. 1978, 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 be- fore an administrative 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 December 30, 1977, following a Board election in Case 21-RC 14795, 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 February 10, 1978, 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 June 19, 1978, Respondent filed its answer to the complaint, admitting in part. and denying in part, the allegations in the complaint. On August 25, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 30, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- 'Official notice is taken of the record In the representation proceeding, Case 21-RC 14795. as the term "record" i defined in See,. 102 tX and 1 0 2. 69 1g) of the Board's Rules and Regulations, Series 8. as amended See LTVi ' Elrr,-ro-iiem.. Ir. 166 NLRB 938 1967). enfd. 388 -2d 683. (4th Cir. 1968). Golden Age Beteraxe (a ,. 167 NlRB 151 1967). nfd. e 415 I 2d 26 (5th (lr. 19691: Inrertipe ('o , Pencill, 269 :.Supp. 573 (I) ( a.. 190671 Follert ('orp, 164 NI.RB 378 (1967). enfd. 397 F.2d 91 (7th (a'r 1968): Sec.9(d) of the NL.RA. 240 NLRB No. 96 after filed a response to the Notice To Show Cause, contending that summary judgment should not be granted. 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 In its answer and amended answer to the com- plaint, Respondent admits the jurisdictional and procedural allegations. In addition to denying the complaint's conclusionary paragraphs, Respondent, in substance, denies that it is an employer within the meaning of Section 2(6) and (7) of the Act, that the Union is a labor organization, that the Union is the exclusive collective-bargaining representative of the employees, and that the unit described in the com- plaint is appropriate. While Respondent admits that the Union has requested information, it denies that the Union has requested bargaining, denies that it has refused to furnish the information requested, and denies that it has refused to bargain. The record reveals that by letter to Respondent dated February 10, 1978, the Union requested infor- mation relevant to collective bargaining. Thereafter. by letter dated April 4, 1978, the Union repeated the request for information and specifically demanded that Respondent bargain with it. In a letter to the Union dated June 1, 1978, Respondent acknowl- edged that the Union had requested information and bargaining. Thus, it is clear that the Union made a formal demand for bargaining. Also in the June I letter to the Union, as well as in its answer to the complaint, Respondent has mani- fested an intention to condition its honoring the Union's request to bargain upon the receipt from the Union of certain statistical information concerning the racial, sexual, and ethnic composition of the Union's membership. We agree with the General Counsel's contention that such information is irrele- vant to Respondent's bargaining obligation. Addi- tionally, as we construe this request to constitute an allegation that the Union practices invidious discrim- ination, we note that neither in the representation case, where a similar allegation was made, nor in the instant case has Respondent offered any evidence which would present a prima facie showing of dis- crimination. In any event, it is settled that allegations of racial and other types of discrimination are prop- erly cognizable under the duty of representation and must be adjudicated under Section 8(b) of the Act 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and cannot constitute a defense to an 8(a)(5) pro- ceeding. 2 In its answer Respondent further contends it has no obligation to bargain with the Union be- cause of "certain preconditions" to bargain that have allegedly been imposed by the constitution of the In- ternational Union. This contention is without merit, since it is the Local Union, not the International, which was certified, and there is no evidence that the Local Union has imposed any preconditions to bar- gaining. Our review of the record herein, including that in the underlying representation proceeding, Case 21-RC-14795, shows that the election which was held on September 24, 1976, pursuant to a Stipula- tion for Certification Upon Consent Election dated September 10, 1976, resulted in a vote of 38 for and 35 against the Union, with 3 challenged ballots, a sufficient number to affect the results of the election. On September 29 and October 1, 1976, the Union and Respondent, respectively, filed objections to conduct affecting the election, and Respondent filed supplemental objections. On October 11, 1976. Re- spondent filed a motion to dismiss Petitioner's objec- tions to conduct affecting the results of the election, and the Regional Director for Region 21, on October 20, 1976, issued to the Union an Order To Show Cause why Respondent's motion to dismiss should not be granted. The Union filed a response on Octo- ber 27, 1976, to which Respondent filed a motion to strike and to dismiss Petitioner's objections. Subse- quently, on April 5, 1977, the Acting Regional Direc- tor for Region 21 issued a report on challenged bal- lots and objections in which he recommended that the challenges to all of the ballots be overruled, that Respondent's objections and supplemental objec- tions be overruled in their entirety, and that Respon- dent's procedural motions be dismissed. He further recommended that the Union's Objection 2 and its unnumbered objection be overruled, but that a hear- ing be held on the Union's Objection 1, if the revised tally of ballots showed that a majority of the valid ballots cast had not been cast in favor of the Union. On April 20, 1977, Respondent filed exceptions to said report, and on July 8, 1977, the National Labor Relations Board issued a Decision and Direction, adopting the Acting Regional Director's report on challenged ballots and objections. The revised tally of ballots showed 39 votes cast for and 37 against the Union. On July 19, 1977, Respondent filed addition- al objections to the conduct of the election and con- duct affecting the results of the election. The Acting 'See Handle And,. Inc.. 228 NLRB 447. fn. 56 (1977). While Member Jenkins agrees with the results reached in this case, since no eviience of discrimination has been proffered. he continues to adhere to the position set forth in his dissenting opinion in Handiy Andi. Regional Director, on August 11, 1977, issued a sup- plemental report on objections recommending that Respondent's objections be overruled in their en- tirety and that the Union be certified. Respondent's August 24, 1977, motion for reconsideration of the supplemental report on objections was denied by the Acting Regional Director on September 2, 1977, and on that same date Respondent filed exceptions to said supplemental report with the Board. On Decem- ber 30, 1977, the Board issued a Supplemental Deci- sion and Certification of Representative certifying the Union as the collective-bargaining representative of Respondent's employees in the stipulated unit. Clearly, by its answers to the complaint and more specifically by its denials, in whole or in part, of the allegations of the complaint and the arguments pro- pounded in its responses to the Notice To Show Cause,' Respondent is attempting to relitigate issues which have been raised or should have been raised in Case 21 RC-14795. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or pre- viously unavailable evidence which could not have been obtained by due diligence, 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 pro- ceeding. Accordingly, we grant the Motion for Sum- mary Judgment. Respondent further argued that the charge was against Skyline Corpora- tion. Inc.. which does not exist, and that the General Counsel acted improp- erl hb adding the name Nomad Division to the complaint. We do not agree. since it is clear from the record as a whole that the unit involved employees of Respondent and that the underlying representation proceed- ings were captioned Nomad Division, Skyline Corporation. Inc. The record reveals Respondent has participated in all such captioned proceedings with- out protest. We note further that a demand for bargaining was made by the Union on Fehruary 10. 1978. and again on April 4, 1978. These demands were addressed to Nomad Division. Skyline Corporation, Inc., to the atten- tion of Al Travers. who was a representative of Respondent in the underly- ing representation case and who furnished affidavits in that proceeding. lorcoreer Respondent's counsel signed the stipulation and represented throughout the representation proceedings, beginning on September 28. 1976, that the Employer's name was Nomad Division. Skyline Corporation. Inc Additionally, there is no evidence that Respondent has been prejudiced in an of these proceedings. See Pirtihurh Plate Glays Co. v. .LR.B.. 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Sees. 102.67(f) and 102.69ic). The mo- ion for reconsideration accompanying the response to Notice To Show Cause is denied as lacking in merit NOMAD DIVISION SKYLINE CORPORATION, INC. 739 On the basis of the entire record, the Board makes the following: FINDIN(iS OF F( I I. I HE BUSINESS OF RSPO()NI).NI At all times material herein, Respondent. an Indi- ana corporation, has been engaged in the manufac- ture of recreational vehicles and has operated a facil- ity located at 920 Mayberry Avenue, emet. California. In the normal course and conduct of its business operations described above, Respondent an- nually sells and ships goods and products valued in excess of $50,000 directly to customers located out- side the State of California. 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 juris- diction herein. 11 IHE ABOR OR(;ANIZAtION IN () \ ) International Brotherhood of Electrical Workers, Local Union 440, AFL-CIO-CLC. is a labor organi- zation within the meaning of Section 2(5) of the Act. 111 lIe UNFAIR I.ABOR PRAC II(ES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full time and part time hourly shop employ- ees, including all direct production employees and any and all indirect employees, which in- clude but are not limited to material handlers, dealer prep, final repair, maintenance-tool crib, forklift drivers, assistant receivers or receivers. dispatcher, tractor drivers. yardmen, dispatch- ers. and sweeper-janitors. employed by Respon- dent at its facility located at 920 Mayberry Ave- nue, Hemet, California, but excluding all full time and part time salaried employees, including all division managers, sales managers, salesmen or product salesmen, salesmen trainees, produc- tion or plant managers. assistant plant manag- ers, foremen, assistant plant manager trainees, foremen trainees, material control manager, quality control manager, purchasing managers or agents, head receiver, service manager, ser- vicemen, sales secretaries, secretaries, clerks, re- ceptionists and any and all office clerical em- ployees including sales secretaries, secretaries and receptionists, and watchmen, guards, pro- fessional employees and supervisors as defined in the Act. 2. The certification On September 24, 1976, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region 21, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on December 30. 1977. and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. he Request To Bargain and the Request Jor Information and Respondent's Refusal I. Commencing on or about February 8, 1978, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about February 10, 1978. and continuing at all times thereafter to date. 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. 2. By letter dated February 10. 1978. and at all times thereafter, the Union has requested, and con- tinues to request, that Respondent furnish it with in- formation concerning the employees in the above- described unit, including, but not limited to: names and current addresses, dates of hire, present hourly rates of pay or salaries, dates of last wage increases. paid holidays and vacations, health and welfare in- surance contracts and policies, and all other practices and policies concerning their hours of work and con- ditions of employment. Since on or about February 10, 1978. Respondent has failed and refused. and continues to fail and refuse, to furnish the Union with the information described herein. Accordingly we find that Respondent has. since February 10, 1978. 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 has engaged in and is engaging in unfair labor prac- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMER(E The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, 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 commerce. v. rTHE REME)DY 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 ap- propriate 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 se- lected 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 (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 (1964): Bur- nett 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: CON(CI.tSIONS OF LAW 1. Nomad Division, Skyline Corporation, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers, Local Union 440, AFL CIO-CLC, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All full-time and part-time hourly shop employ- ees, including all direct production employees and any and all indirect employees, which include but are not limited to material handlers, dealer prep, final repair, maintenance-too; crib, forklift drivers, assis- tant receivers or receivers, dispatcher, tractor drivers, yardmen, dispatchers, and sweeper-janitors. em- ployed by Respondent at its facility located at 920 Mayberry Avenue, Hemet, California, but excluding all full-time and part-time salaried employees, in- cluding all division managers, sales managers, sales- men or product salesmen, salesmen trainees, produc- tion or plant managers, assistant plant manager, foremen, assistant plant manager trainees, foremen trainees, material control manager, quality control manager, purchasing managers or agents, head re- ceiver, service manager, servicemen, sales secretaries, secretaries, clerks, receptionists, and any and all of- fice clerical employees, including sales secretaries, secretaries, and receptionists, and watchmen, guards, professional employees, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since December 30, 1977, the above-named la- bor 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 February 10, 1978, 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 Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all employees of Respon- dent in the appropriate unit by refusing on or about February 10, 1978, and at all times thereafter to fur- nish information concerning the employees in the above-described unit, including, but not limited to: names and current addresses, dates of hire, present hourly rates of pay or salaries, dates of last wage increases, paid holidays and vacations, health and welfare insurance contracts and policies, and all other practices and policies concerning their hours of work and conditions of employment, with respect to said unit employees, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusal to bargain, Respondent has interfered with, restrained,and coerced, and is in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 8. The aforesaid unfair labor practices are unfair NOMAD DIVISION SKYLINE CORPORATION, INC 741 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 Re- lations Board hereby orders that Respondent, No- mad Division, Skyline Corporation, Inc., 920 May- berry Avenue, Hemet, California, 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 con- ditions of employment with International Brother- hood of Electrical Workers, Local Union 440, AFL CIO-CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All full time and part time hourly shop employ- ees, including all direct production employees and any and all indirect employees, which in- clude but are not limited to material handlers. dealer prep, final repair, maintenance-tool crib. forklift drivers, assistant receivers or receivers. dispatcher, tractor drivers. yardmen, dispatch- ers, and sweeper-janitors, employed by Respon- dent at its facility located at 920 Mayberry Ave- nue, Hemet, California, but excluding all full time and part time salaried employees. including all division managers, sales managers, salesmen or product salesmen, salesmen trainees, produc- tion or plant managers, assistant plant manag- ers, foremen, assistant plant manager trainees. foremen trainees, material control manager, quality control manager, purchasing managers or agents. head receiver, service manager, ser- vicemen, sales secretaries, secretaries, clerks, re- ceptionists and any and all office clerical em- ployees including sales secretaries, secretaries and receptionists, and watchmen, guards, pro- fessional employees 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) Upon request, bargain collectively with Inter- national Brotherhood of Electrical Workers, ocal Union 440, AFL-CIO-CLC, as the exclusive bar- gaining representative of all employees in the afore- said appropriate unit, by furnishing said labor orga- nization with information concerning the employees in the above-described unit, including but not limited to: names and current addresses. dates of hire, pres- ent hourly rates of pay or salaries, dates of last wage increases, paid holidays and vacations, health and welfare insurance contracts and policies, and all other practices and policies concerning their hours of work and conditions of employment. (c) Post at its operations at 920 Mayberry Avenue, Hemet. California, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In he eenl that thil Order is enforced bh a judgment of a Unled Sltates (Court f Appeals. the ords, in the notice reading "Posted bh Order of the National .habor Relaltion Board" shall read "Posted Pursuant to a Judg- nient r!f the I ratiled States (ourt of XppealB, fnforcilg an Order of the \.iatilAl [ bor Reltion Bard- APPENDIX Nomre to EMPL.OY ls Posi It) B ORD)ER O() TE NAIIONAI LN\BOR RFI.ATIONS BOARD An Agency of the United States Government W wilt n) OI refuse to bargain collectively concerning rates of pay. wages. hours, and other terms and conditions of employment with Inter- national Brotherhood of Electrical Workers, Lo- cal Union 440. AFL-CIO CLC. as the exclusive bargaining representative of the employees in the bargaining unit described below. W willi. Noi refuse to bargain collectively with International Brotherhood of Electrical Workers. Local Union 440. AFL('IO-CLC. as the exclusive bargaining representative of the employees in the bargaining unit described be- low by refusing to furnish said labor organiza- tion with information concerning the employees 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the appropriate unit, including but not limited to: names and current addresses, dates of hire, present hourly rates of pay or salaries. dates of last wage increases, paid holidays and vacations, health and welfare insurance contracts and poli- cies, and all other practices and policies con- cerning their hours of work and conditions of employment. WE WILI NOI 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. WI WIl l. upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full time and part time hourly shop em- ployees, including all direct production em- ployees and any and all indirect employees, which include but are not limited to material handlers, dealer prep, final repair, mainte- nance-tool crib, forklift drivers, assistant re- ceivers or receivers, dispatcher, tractor driv- ers, yardmen, dispatchers, and sweeper- janitors, employed by us at our facility locat- ed at 920 Mayberry Avenue, Hemet, Califor- nia, but excluding all full time and part time salaried employees, including all division managers, sales managers. salesmen or prod- uct salesmen, salesmen trainees, production or plant managers, assistant plant managers, foremen, assistant plant manager trainees, foremen trainees, material control manager, quality control manager, purchasing manag- ers or agents, head receiver, service manager, servicemen, sales secretaries, secretaries, clerks, receptionists and any and all office clerical employees including sales secretaries, secretaries and receptionists, and watchmen, guards, professional employees and supervis- ors as defined in the Act. W: wii .. upon request, bargain collectively with International Brotherhood of Electrical Workers, Local Union 440, AFL-CIO-CLC, as the exclusive bargaining representative of the employees in the bargaining unit described above by furnishing said labor organization with information concerning the employees in the ap- propriate unit described above, including but not limited to: names and current addresses, dates of hire, present hourly rates of pay or sala- ries, dates of last wage increases, paid holidays and vacations, health and welfare insurance contracts and policies, and all other practices and policies concerning their hours of work and conditions of employment. NOMAD DVISION. SKYLINE CORPORATION. IN(