Pointe Enterprises, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1976

223 N.L.R.B. 822 (N.L.R.B. 1976)

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pointe Enterprises, Inc. and International Union,
United Automobile , Aerospace and Agricultural Im-
plement Workers of America (UAW). Case 7-CA-
12403
April 9, 1976
DECISION AND ORDER
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent 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 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:
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on October 17, 1975, by Inter-
national Union , United Automobile , Aerospace and
Agricultural Implement Workers of America
(UAW), herein called the Union , and duly served on
Pointe Enterprises , Inc., herein called the Respon-'
dent , the Acting General Counsel of the National
Labor Relations Board , herein called General Coun-
sel, by the Regional Director for Region 7, issued a
complaint and notice of hearing on November 17,
1975, 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 February 26, 1975,
following a Board election in Case 7-RC-12258 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent 's employees
in the unit found appropriate ;' and that, to date, Re-
spondent has failed and refused to comply with the
requests of the Union to bargain collectively with the
Union as . the exclusive bargaining representative,
and to furnish information necessary to collective
bargaining.
On December 10, 1975, Respondent filed its an-
swer to the complaint admitting in part , and denying
in part , the allegations in the complaint.
On January 8, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment . Subsequently , on January 20, 1976,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
'Official notice is taken of the record in the representation proceeding,
Case 7-RC-12258, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent in substance de-
nies the representative status of the Union based on
its election objections upon which it contends a hear-
ing should be held. It also contends that the Board
should reconsider its decision in the representation
case in light of (1) the failure of the Union to fulfill
its campaign statement that it would organize 70 per-
cent of the tool and design industry employees in
Respondent's area before it sought to compel the Re-
spondent to bargain and (2) the change in the com-
position of the Board.
Review of the record herein, including that of the
representation proceedings in Case 7-RC-12258, es-
tablishes that the election held on April 24, 1974,
pursuant to a Stipulation for Certification Upon
Consent Election was won by the Union. Thereafter,
Respondent filed timely' objections to the election
and a memorandum in support alleging, in addition
to unspecified coercive conduct, material misrepre-
sentations by the Union with respect to the signifi-
cance of the election. Specifically, Respondent al-
leged that the Union made campaign statements that
it would not bargain or execute a contract with the
Respondent until a certain percentage of the tool and
design industry employees in Respondent's area had
been organized and that such statements caused
Respondent's employees to vote for the Union by
creating the impression that, until the stated level of
areawide organization had been achieved,
Respondent's employees would not be legally bound
by their vote to recognize the Union as their statuto-
ry bargaining representative. On July 26, 1974, after
an investigation, the Regional Director issued his Re-
port and Recommendations on Objections in which
he recommended that the objections be overruled be-
cause (1) Respondent had had an opportunity to re-
spond to the Union's statements and did in fact re-
spond, (2) an examination into the subjective states
of mind of the voters was impermissible, and (3) the
statements were merely campaign rhetoric and did
not interfere with the election. Respondent filed ex-
ceptions to the Regional Director's report, reiterating
223 NLRB No. 93
POINTE ENTERPRISES, INC.
its objections and contending that the misrepresenta-
tion tests of Hollywood Ceramics Company, Inc., 140
NLRB 221 (1962), and Modine Manufacturing Com-
pany, 203 NLRB 527 (1973), were inapplicable.
On February 26, 1975, the Board, after considering
Respondent's objections, the Regional Director's re-
port, and the exceptions thereto, issued its Decision
and Certification of Representative,' adopting the
Regional Director's findings and recommendations
and certifying the Union. The Board specifically
found, inter alia, that the Union's statements were
speculative in nature and not misrepresentations
within the meaning of Hollywood Ceramics Company,
Inc., supra, declined to undertake a search of the sub-
jective considerations of the employees who voted
after appraising both sides of the election campaign,
and concluded that the statements had not interfered
with the election.
In this proceeding Respondent now contends for
the first time that a hearing is warranted on its elec-
tion objections. By its consideration of Respondent's
objections, the Regional Director's report, and the
exceptions thereto, and by its adoption of the report
recommending that the objections be overruled, the
Board necessarily found that the objections raised no
substantial or material issues warranting a hearing.'
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 the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding.5 We
2 216 NLRB 747, Member Kennedy dissenting.
3Alper's Jobbing Company, Inc., 222 NLRB No. 122 (1976).
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(f) and 102.69(c).
5 We see no merit in either of Respondent 's arguments for reconsideration
of our Decision and Certification of Representative . Respondent first con-
tends that the Union 's present demand for bargaining is inconsistent with
the failure to comply with its campaign statement that it would organize a
preannounced percentage of industry employees in Respondent's area be-
fore requesting bargaining . In the representation case, we found , inter alia,
that such statements about the Union's intent to organize areawide were
"speculative in nature and merely reflected its hoped -for bargaining posi-
tion after the election " and they had not interfered with the election. The
failure of such speculative statements to be realized cannot in any way
impinge on the validity of the Union 's certification , which the Respondent
is required to honor . Likewise , we find no merit in Respondent 's contention
that reconsideration should be granted because of the change in composi-
tion of the Board , especially since Sec . 3(b) of the Act provides for regular
changes in the composition of the Board and contemplates the Board's
functioning as a continuing institution.
823
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, and has been at all times material
herein, a Michigan corporation with its principal of-
fice and place of business at 20655 Mack Avenue,
Grosse Pointe Woods, Michigan. Respondent is en-
gaged in the designing of production tools, dies, fix-
tures, and related products at its place of business
located at Grosse Pointe Woods, Michigan, the only
facility involved in this proceeding. During the fiscal
year ending August 31, 1975, a representative period,
Respondent, in the course and conduct of its busi-
ness operations, performed services valued in excess
of $100,000, of which products valued in excess of
$50,000 were furnished to General Motors Corpora-
tion, Cadillac Motor Car Division, located in the
State of Michigan, which, in the course and conduct
of its business operations, annually derives gross rev-
enues in excess of $500,000 and purchases goods and
materials valued in excess of $50,000 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 here-
in, 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.
Il. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW), 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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All technical employees employed by Respon-
dent at its facility located at 20655 Mack Ave-
nue, Grosse Pointe Woods, Michigan, but ex-
cluding all confidential employees, co-op
students, managerial employees, office clerical
employees, production and maintenance em-
ployees, guards, supervisors, and professional
employees as defined in the Act, and all other
employees.
2. The certification
On April 24, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector 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 February 26, 1975, 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 February 28, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit and to furnish
information necessary for collective bargaining.
Commencing on or about February 28, 1975,6 and
continuing at all times thereafter to date, the Respon-
dent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive rep-
resentative for collective bargaining of all employees
in said unit.
Accordingly, we find that the Respondent has,
since February 28, 1975, and at all times thereafter,
refused 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-
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 opera-
61n view of Respondent 's admission that it failed to comply with the
requests for information and bargaining and the failure of the complaint to
allege an explicit date for the admitted refusal , we find that Respondent
refused to bargain as of the date of the Union's initial request . Heavenly
Valley Ski Area, A California Corporation, and Heavenly Valley, A Partner-
ship, 215 NLRB No. 129 (1974).
tions described in section I, 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. THE REMEDY
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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Pointe Enterprises, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW), is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All technical employees employed by Respon-
dent at its facility located at 20655 Mack Avenue,
Grosse Pointe Woods, Michigan, but excluding all
confidential employees, co-op students, managerial
employees, office clerical employees, production and
maintenance employees, guards, supervisors, and
professional employees as defined in the Act, and all
other employees, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
POINTE ENTERPRISES, INC.
4. Since February 26, 1975, 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 28, 1975, 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, and to furnish the
necessary information requested, 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 the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing 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 Re-
lations Board hereby orders that Respondent, Pointe
Enterprises, Inc., Grosse Pointe Woods, 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 con-
ditions of employment with International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), and refusing
to provide information necessary for collective bar-
gaining with said labor organization as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All technical employees employed by Respon-
dent at its facility located at 20655 Mack Ave-
nue, Grosse Pointe Woods, Michigan, but ex-
cluding all confidential employees, co-op
students , managerial employees, office clerical
employees, production and maintenance em-
ployees, guards, supervisors, and professional
employees as defined in the Act, and all other
employees.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
825
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, provide the necessary
information required for collective bargaining, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Grosse Pointe Woods, Michigan, fa-
cility copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by
the Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be post-
ed 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 Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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, United Automobile, Aerospace
and Agricultural Implement Workers of Ameri-
ca (UAW), nor will we refuse to provide infor-
mation necessary for collective bargaining to the
said labor organization as the exclusive repre-
sentative 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 represen-
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 , provide the information necessary for
collective bargaining , and, if an understanding is
reached , embody such understanding in a signed
agreement . The bargaining unit is:
Avenue , Grosse Pointe Woods, Michigan, but
excluding all confidential employees, co-op
students , managerial employees, office clerical
employees , production and maintenance em-
ployees, guards , supervisors , and professional
employees as defined in the Act, and all other
employees.
All technical employees employed by Re-
spondent at its facility located at 20655 Mack
POINTE ENTERPRISES, INC.