The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

May 6, 1975

217 N.L.R.B. 811 (N.L.R.B. 1975)

-THE FIRESTONE TIRE &'RUBBER COMPANY 811
The Firestone Tire ' & Rubber Company and Interna-
tional Union, United Plant Guard Workers of
America (UPGWA). Cases 26-CA-5264 and
26-CA-5302
May 6, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a charge and amended charge filed on August
21 and September 27, 1974, respectively, in Case
26-CA-5264, and a charge filed on September 20,
1974, in Case 26-CA-5302, by International Union,
United Plant Guard Workers of America (UPGWA),
herein called the Union, and duly served on The Fire-
stone Tire & Rubber Company, herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director for
Region 26 issued an amended consolidated complaint
and notice of hearing on January 8, 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 charges, and
amended consolidated 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
amended consolidated complaint alleges, in substance,
that on August 13, 1974, following a Board election in
Case 26-RC-4728, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;2
and that, commencing on or about August 13, 1974,
and at all times thereafter, Respondent has refused,'
I On January 10, 1975, the Board issued an Order Denying Motion for
Summary Judgment filed by the General Counsel on November 4, 1974 In
its Order, the Board permitted amendment in certain respects, of the com-
plaint, issued by the Regional Director on October 11, 1974.
2 Official notice is taken of the record in the representation proceeding,
Case 26-RC-4728, 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
LFY Electrosysterns, 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.,
1951); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91 (C.A. 7,
1965); See. 9(d) of the NLRA
3 By its answer, the Respondent admits that the Union has requested
Respondent to bargain with it with respect to rates of pay, wages, hours, and
other terms and conditions of employment for its employees,'but denies that
said request commenced on or about April 25, 1974. However, Respondent
admits in its answer the allegations of par 11 of the amended consolidated
complaint that it refused to recognize and bargain with the Union since on
or about April 25, 1974 As the Respondent admits that it refused to bargain
with the Union on or about April 25,1974, we find that the Union requested
bargaining on that date However, in view of the fact that the Board did not
and continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining representa-
tive, although the Union has requested and is request-
ing it to do so. Thereafter, Respondent filed its answer
to the amended consolidated complaint admitting in
part, and denying in part, the allegations in the com-
plaint. The Respondent admits all of the factual allega-
tions in the amended consolidated complaint, except
those paragraphs which relate to the underlying repre-
sentation case, 26-RC-4728.
On January 27, 1975, counsel for the General Coun-
sel filed directly with the Board a Motion for Summary
Judgment, with exhibits attached, submitting, in effect,
that the Respondent's answer to the amended con-
solidated complaint raises no issues which were not
previously presented to and decided by the Board in the
underlying representation proceeding, and that the
Board grant the Motion for Summary Judgment and
issue an appropriate remedial Order. Subsequently, on
February 13, 1975, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did not
file 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 reflected above, the Respondent's answer admits
all of the factual allegations of the amended con-
solidated complaint, including its refusal to recognize
and bargain with the Union which had been certified
as the collective-bargaining representative of the em-
ployees described in the amended consolidated com-
plaint. The thrust of Respondent's answer attacks the
Board's Decision and Certification of Representative
issued on August 13, 1974,4 in which the Board, after
having considered the Acting Regional Director's re-
port, the Respondent's exceptions and memorandum,
and 'the entire record, overruled the Respondent's ob-
jections to conduct affecting the results of the election;
rejected the Acting Regional'Director's recommenda-
tions for a hearing; and concluded that Respondent's
objections raised no material or substantial questions of
fact which would warrant a Board hearing.' Accord-
certify the Union until August 13, 1974, we find the Respondent's refusal
to bargain commenced as of that date.
4 212 NLRB 852
5 Member Kennedy would have directed a hearing on one objection as
recommended by the Acting Regional Director, but would have overruled
the Respondent's other objection
217 NLRB No. 115
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly , the Union was certified . Thus, the Respondent,
by attacking the legal effect or validity of the Decision
and Certification of Representative issued by the Board
on August 13, 1974, is attempting to relitigate the same
issues which it raised and litigated in the prior repre-
sentation proceeding , Case 26-RC-4728 . Moreover, it
is well established that parties do not have an absolute
right to a hearing on objections to an election . It is only
when the moving party presents a prima facie showing
of "substantial and material issues" which would war-
rant setting aside the election that he is entitled to an
evidentiary hearing .6 It is clear that , absent arbitrary
action , this qualified right to a hearing satisfies all
statutory and constitutional requirements.'
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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!
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not of-
fer 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 fmd that
the Respondent has not raised any issue which is prop-
erly 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
I THE BUSINESS OF THE RESPONDENT
Respondent is now , and has been at all times
material herein , a corporation doing business in the
State of Tennessee with an office and place of business
located in La Vergne, Tennessee, where it is engaged in
the manufacture of tires. During the past 12 months,
Respondent , in the course and conduct of its business
operations , purchased and received at its La Vergne,
Tennessee, location products valued in excess of $50,-
000 directly from points located outside the State of
Tennessee , and during the same period of time Re-
spondent sold and shipped from its La Vergne, Tennes-
6 NL R.B v. Modine Manufacturing Company, 500 F 2d 914 (C A 8,
1974), enfg 203 NLRB 527 (1973)
7 Amalgamated Clothing Workers ofAmerica [Winfield Manufacturing
Company, Inc] v N.L R.B., 424 F.2d 818, 828 (C.A.D C., 1970)
8 See Pittsburgh Plate Glass Co. v NL R.B, 313 U S 146, 162 (1941);
Rules and Regulations of the Board , Secs 102 .67(1) and 102 69(c)
see, location products valued in excess of $50,000 di-
rectly to points located outside the State of Tennessee.
We fmd, on the basis of the foregoing , that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
International Union, United Plant Guard Workers
of America (UPGWA), 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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All safety-security inspectors employed by the
Respondent at its La Vergne, Tennessee , opera-
tion; excluding all other employees , including of-
fice clerical and supervisors, as defined in the Act.
2. The certification
On April 24 and 25, 1974, a majority of the em-
ployees of Respondent in said unit , in a secret ballot
election conducted pursuant to a Stipulation for Cer-
tification Upon Consent Election under the supervision
of the Regional Director for Region 26, designated the
Union as their representative for the purpose of collec-
tive bargaining with the Respondent . The Union was
certified as the collective-bargaining representative of
the employees in said unit on August 13, 1974 , 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 April 25 , 1974, and at all
times thereafter, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive col-
lective-bargaining representative of all the employees in
the above-described unit . Commencing on or about
August 13, 1974, and continuing at all times thereafter
to date , the Respondent has refused , and continues to
refuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of all
employees in said unit.
THE FIRESTONE TIRE & RUBBER COMPANY 813
Accordingly, we find that the Respondent has, since
August 13, 1974, 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, Respondent 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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962); Com-
merce 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); Burnett Construction Com-
pany, 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. The Firestone Tire & Rubber Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union, United Plant Guard Work-
ers of America (UPGWA), is a labor organization
within the meaning of Section 2(5) of the Act.
3. All safety-security inspectors employed by the Re-
spondent at its La Vergne, Tennessee, operation; ex-
cluding all other employees, including office clerical
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 August 13, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing on or about August 13, 1974, 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 Respond-
ent 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.
6. 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 to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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 Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, The Firestone
Tire & Rubber Company, La Vergne, Tennessee, 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, United Plant
Guard Workers of America (UPGWA ), as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All safety-security inspectors employed by the
Respondent at its La Vergne, Tennessee, opera-
tion; excluding all other employees, including of-
fice clerical 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
814 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached , embody such understanding in a signed agree-
ment.
(b) Post at its La Vergne, Tennessee, location, copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 26, after being duly signed by Respon-
dent'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, Respondent to insure that said notice are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of, this Order,
what steps have been taken to comply herewith.
MEMBER KENNEDY, dissenting:
For the reasons set forth in my dissenting opinion in
The Firestone Tire & Rubber Company, 212 NLRB 852
(1974), I would have directed a hearing to resolve the
issues raised by one of the Employer's objections to the
election. Since I would not have issued a certification
to the Union without first determining the validity of
that objection to the election, I find nothing unlawful
in Respondent's questioning the validity of the certifi-
cation. Accordingly, I would dismiss this complaint in
its entirety.
9 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 con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with International
Union, United Plant Guard Workers of America
(UPGWA), as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner inter-
fere 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 representative 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 under-
standing in a signed agreement. The bargaining
unit is:
All safety-security inspectors employed by
the Respondent at its La Vergne, Tennessee,
operation ; excluding all other employees, in-
cluding office clerical and supervisors, as de-
fined in the Act.
THE FIRESTONE TIRE & RUBBER
COMPANY