Universal Manufacturing Corp.

National Labor Relations Board - Board DecisionsOct 2, 1973

206 N.L.R.B. 251 (N.L.R.B. 1973)

UNIVERSAL MFG. CORP. 251 Universal Manufacturing Corporation and Local Union No. 415, Industrial, affiliated with United Brotherhood of Carpenters and Joiners of America; AFL-CIO. Case 9-CA-7807 October 2, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Exceptions With Attached Memorandum." 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,2 the Board makes the following: Upon a charge filed on May 29, 1973, by Local Union No. 415, Industrial, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, and duly served on Universal Manufacturing Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 9, issued a complaint on June 13, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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 before 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 April 19, 1973, following a Board election in Case 9-RC-9909, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on May 21, 1973, and at all times thereafter, Respon- dent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has re- quested and is requesting it to do so. On June 19, 1973, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On June 25, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and memorandum in support, and on June 28, 1973, the Respondent filed its memorandum in opposition. Subsequently, on July 3, 1973, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General 'Official notice is taken of the record in the representation proceedmg, Case 9-RC-9909, as the term "record" is defined in Sees 102.68 and 102 .69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151, 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, 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, the Respondent attacks the validity of the election and union certification because of its objections regarding union conduct affecting the re- sults of the election in the underlying representation case, 9-RC-9909. In its response, it now contends that it is entitled to a hearing on the issues raised in its objections. Our review of the representation case reveals that, pursuant to the Regional Director's Decision and Di- rection of Election, an election was conducted on March 16, 1973, in the appropriate unit of production and maintenance employees. The election was won by the Union. The Respondent filed timely objections to conduct affecting the results, in which it alleged, in substance, that (1) a union document mailed to all employees prior to the election misrepresented the law as to an employer's bargaining obligation toward a newly certified union, and (2) preelection layoffs precluded the holding of a representative election. The Regional Director, in his Supplemental Deci- sion and Certification of Representative, issued on April 19, 1973, overruled the objections and certified the Union. In dealing with the objection concerning the Union's pamphlet, the Regional Director consid- ered the Respondent's contention that, at a meeting it called to explain its own interpretation of the law, it was frustrated by an employee who claimed that a Board agent had advised him of the law. The Respon- dent thereafter had been unsuccessful in contacting the alleged Board agent. With respect to the objection concerning the preelection layoffs, the Regional Di- rector noted the Respondent's admission "that it nev- er informed the Regional Office of the layoffs, or requested that the election be postponed." In its subsequent request for review filed with the Board, the Respondent reiterated its objections and, in effect, attacked the Regional Director's conclu- sions that the Respondent had ample opportunity to present its own position as to its legal obligation to 2 The Respondent's request for oral argument is hereby denied as the entire record before us adequately presents the issues and the position of the Re- spondent - 206 NLRB No. 41 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with a certified union and that the election was representative, despite the preelection layoffs. Thereafter,' on May 9, 1973, the Board denied the request as it raised no substantial issues warranting review. In its response, the Respondent now contends that it is entitled to a hearing on new issues of fact it never had the opportunity to litigate pertaining to (1) wheth- er the employee who at a meeting allegedly frustrated the Respondent's explanation of bargaining law was a Board agent, (2) the correctness of that Board agent's alleged statement on the law made to the em- ployee, (3) the Respondent's inability to contact the Board agent; and (4) the issue of the Board's notice of the preelection layoffs. We do not agree. We have carefully examined the Respondent's various conten- tions and find that they do not involve newly discov- ered or previously unavailable evidence or special circumstances and they do not raise new issues of fact which the Respondent had no opportunity to litigate in the representation proceeding or which would war- rant a hearing in this proceeding. In this connection, we note that a request for a hearing could have been made in the representation proceeding, but the Re- sporident failed to do so. It is well established that parties do not have an absolute right to a hearing on objections to the election. It is only when the moving party presents a prima facie showing of "substantial and material" issues that he is entitled to an evidenti- ary hearing.' It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all, statutory and constitutional requirements.4 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 representation proceeding, and the Respondent does not offer 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 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 I THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation engaged in the manufacture and sale of prefabricated homes and components for residential houses at its plant located in Camden, Ohio. During the past 12 months, which is a representa- tive period, Respondent, in the course and conduct of its business operations, purchased goods and materi- als, valued in excess of $50,000, from suppliers located outside'the State of Ohio and caused such goods and materials to be shipped directly, in interstate com- merce, to its Camden, Ohio, location. We find, on the basis of the foregoing, that Respon- dent 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 Local Union No. 415, Industrial , affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 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 production and maintenance employees of the Respondent at its Camden, Ohio plant, in- cluding truck drivers, special project employees and leadmen; but excluding all office clerical em- ployees, professional employees, guards and su- pervisors as defined in the Act. 2. The certification 3 Mycalex Division of Spaulding Fibre Company, Inc, 206 NLRB No. 93, and cases cited therein. Modme Manufacturing Company, 203 NLRB No. 77. 4 Amalgamated Clothing Workers of America v N L R B, 424 F 2d 818,-828 (C.A D.C., 1970), N L.R.B. v. Golden Age Beverage Company, 415 F.2d 26, 32 (C.A 5, 1969). s 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). On March 16, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- 6 Our disposition herein makes it unnecessary to consider the General Counsel's' motion to strike portions of Respondent's answer. UNIVERSAL MFG. CORP. 253 rector for Region 9, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on April 19, 1973, and the Union contin- ues 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 May 14, 1973, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about May 21, 1973, and continuing at all times there- after to date, the Respondent has refused, and contin- ues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargain- ing of all employees in said unit. Accordingly, we find that the Respondent has, since May 21, 1973, 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 en- gaged 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 appropriate 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 select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in" good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Universal Manufacturing Corporation is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 415, Industrial, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent at its'Camden, Ohio plant, including truck drivers, special project employees and leadmen; but excluding all office clerical employees , profession- al 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 April 19,1973, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 May 21, 1973, 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 Respon- dent 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 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 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Univer- sal Manufacturing Corporation, Camden, Ohio, 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 condi- tions of employment with Local Union No. 415, In- dustrial, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of the Respondent at its Camden, -Ohio plant, in- cluding truck drivers, special project employees and leadmen; but excluding all office clerical em- ployees, professional employees, guards and su- pervisors 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) Post at its Camden, Ohio, plant copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, 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 con- cerning rates of pay, wages, hours, and other terms and conditions of employment with Local Union No. 415, Industrial, affiliated with United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described, below. WE WILL NOT in any like or related manner in- terfere 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Respondent at its Camden, Ohio plant, in- cluding truck drivers, special project employ- ees and leadmen; but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. UNIVERSAL MANUFACTUR- ING CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.