Rucraft Foundry

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1483 (N.L.R.B. 1982)

RUCRAFT FOUNDRY
Rucraft Foundry and International Molders &
Allied Workers Union, Local 164, AFL-CIO-
CLC. Case 32-CA-4077
May 289, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on November 17, 1981,1 by
International Molders & Allied Workers Union,
Local 164, AFL-CIO-CLC, herein called the
Union, and duly served on Rucraft Foundry,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 32, issued a complaint
on November 23, 1981, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 November 2,
1981, following a Board election in Case 32-RC-
1353,2 the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about November 6,
1981, 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 or about
December 10, 1981, Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint.
On January 25, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 4,
1982, 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.3 Respond-
An amended charge was filed on November IB, 1981.
Official notice is taken of the record in the representation proceed-
ing, Case 32-RC-1353, 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 F2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
I On February 8, 1982, the Union filed a "Joinder in Motion for Sum-
mary Judgment and for Award of Attorneys' Fees."
261 NLRB No. 194
ent thereafter filed a response to the 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
In its answer to the complaint and its response to
the Notice To Show Cause Respondent denies the
validity of the Union's certification and its status as
bargaining representative of the unit employees. In
addition, Respondent asserts as affirmative defenses
(1) that an uncoerced majority of the unit employ-
ees did not designate the Union as their bargaining
representative and (2) that the Union resorted to
"coercive and inflammatory appeals to racial,
ethnic, and national origin prejudice" during the
election campaign, as shown by evidence elicited
during a hearing on objections in Case 32-RC-1351
involving Respondent's parent corporation, Basic
Tool and Supply Co., Inc., and the same Union.
Respondent contends that the newly discovered
evidence presented in its second affirmative defense
raises substantial and material issues concerning the
Union's alleged objectionable conduct in the under-
lying representation proceeding. The General
Counsel argues that Respondent is estopped from
raising its second affirmative defense because it had
included this matter in its objections to the election
and subsequently withdrew the objection concern-
ing it. The General Counsel further contends that
Respondent's first affirmative defense was raised
during the underlying representation proceeding of
this case and thus may not be relitigated in the sub-
sequent and related unfair labor practice proceed-
ing. We agree with the General Counsel.
Our review of the record herein, including the
record in Case 32-RC-1353, indicates that on April
10, 1981, the Union filed a petition in which it
sought to represent certain of Respondent's em-
ployees. On May 6, 1981, the Regional Director
approved a Stipulation for Certification Upon Con-
sent Election signed by the parties which provided
for an election in the following bargaining unit:
All production and maintenance employees
and plant clericals employed by Respondent at
its 707 Jones Street, Berkeley, California, loca-
tion; excluding all office clerical employees,
guards, and supervisors as defined in the Act.
Thereafter, an election was held on June 12,
1981. The tally of ballots showed eight votes cast
for the Union and one against. There were two
1483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenged ballots, an insufficient number to affect
the results of the election. Respondent filed timely
objections to the conduct of the election, alleging,
inter alia, that the Union intimidated and coerced
employees by making various false accusations and
by engaging in false appeals to racial prejudice in
its preelection conduct. In a letter dated July 13,
1981, Respondent withdrew the objection concern-
ing appeals to racial bias on the ground that "it
could not get affected employees to step forward"
with evidence of the alleged misconduct. Respond-
ent's remaining objections were overruled in their
entirety by the Regional Director in his Report and
Recommendations on Objections issued on August
7, 1981. Thereafter, Respondent filed with the
Board its exceptions to the Regional Director's
report essentially reiterating the contentions set
forth in its objections. Respondent further argued
that its objection concerning appeals to racial prej-
udice was withdrawn only because the atmosphere
of fear created by the Union precluded Respond-
ent's investigation. On November 2, 1981, the
Board issued its Decision and Certification of Rep-
resentative (unpublished) in which it adopted the
Regional Director's findings and recommendations
and certified the Union as the bargaining repre-
sentative of the employees in the appropriate unit.
On or about November 6, 1981, the Union, by
telegram, requested Respondent to recognize it as
the exclusive bargaining representative of Respond-
ent's employees in the appropriate unit and to bar-
gain with it collectively. By letter dated November
17, 1981, Respondent stated that it refused to rec-
ognize and bargain with the Union as the exclusive
bargaining representative of the unit employees be-
cause it decided to test by judicial review the
Union's certification.
As noted, Respondent admits its refusal to bar-
gain and affirmatively asserts, inter alia, that the
Regional Director and the Board erroneously failed
to consider the "new evidence" of appeals to racial
prejudice presented in its answer to the complaint.
Although Respondent previously withdrew the ob-
jection concerning appeals to racial prejudice, it
now seeks to revive that objection on the basis of
evidence of similar misconduct by the same union
organizers during the same time period at Respond-
ent's parent company, Basic Tool and Supply Co.,
Inc. This evidence was elicited at the hearing in
Case 32-RC-1351. We find no merit in Respond-
ent's argument. The employees at Basic Tool and
Supply Co., Inc., the Employer in Case 32-RC-
1351, are not the employees in this case and the
facts surrounding the election in Case 32-RC-1351
have no bearing on the election in this case. The
objection which Respondent withdrew as unsup-
portable cannot now be resurrected on the basis of
"newly discovered" alleged union misconduct at an
entirely different operation.
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. 4
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.5
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, has an
office and place of business in Berkeley, California,
where it is engaged in the manufacture and whole-
sale sale of castings. During the 12-month period
preceding the issuance of the complaint, in the
course of its business, Respondent sold goods and
services valued in excess of $50,000 to customers
or business enterprises within the State of Califor-
nia which themselves meet one of the Board's juris-
dictional standards other than the indirect inflow
or indirect outflow standards.
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
International Molders & Allied Workers Union,
Local 164, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
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).
' The Union's request for attorney's fees is hereby denied as we do not
find Respondent's defenses to be "patently frivolous." Heck's Inc., 215
NLRB 765 (1974)
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RUCRAFT FOUNDRY
II1. 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 production and maintenance employees
and plant clericals employed by Respondent at
its 707 Jones Street, Berkeley, California, loca-
tion; excluding all office clerical employees,
guards, and supervisors as defined in the Act.
2. The certification
On June 12, 1981, 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 32, 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 November 2, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondents
Refusal
Commencing on or about November 6, 1981, 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, 1981, 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, 1981, 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 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
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. Rucraft Foundry is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Molders & Allied Workers
Union, Local 164, AFL-CIO-CLC, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. All production and maintenance employees
and plant clericals employed by Respondent at its
707 Jones Street, Berkeley, California, location ex-
cluding all office clericals employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since November 2, 1981, 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, 1981,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
1485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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)(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,
Rucraft Foundry, Berkeley, 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
conditions of employment with International Mold-
ers & Allied Workers Union, Local 164, AFL-
CIO-CLC, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All production and maintenance employees
and plant clericals employed by Respondent at
its 707 Jones Street, Berkeley, California, loca-
tion; excluding all office clerical 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 Berkeley, California, facility copies
of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 32, after being duly
6 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
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 ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAI. 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 International Molders & Allied Workers
Union, Local 164, AFL-CIO-CLC, as the ex-
clusive 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 WILI, 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 production and maintenance employees
and plant clericals employed by the Em-
ployer at its 707 Jones Street, Berkeley,
California, location; excluding all office
clerical employees, guards, and supervisors
as defined in the Act.
RUCRAFT FOUNDRY
1486