Van Gorp Corp.,

National Labor Relations Board - Board DecisionsFeb 7, 1979

240 N.L.R.B. 615 (N.L.R.B. 1979)

RAN GORPCOROPORA I ON Van (orp Corporatio ad ileitc Automnoile, Acro- space and Agricultural Iplement %Yorker. Inter- tna l nion, rW.. s(';e 18 (A 587() I'ehruax\ 7, 1979 I)'ISION ANDI) ORI)IiR BI MIM1IRS Jl' l \KIS MI kI'II) s\l ) TI' IS)l I I:pon a charge filed on .lune 22. 1978. \ I Illctd Automobile. Aerospace and \ricullura IplementC Workers International Inon. [I AW. herein called the Union. and dul\ served o Van (;orp (orpora- tion. herein called Respondent. the Gncral Counscl of the National .Labor Relations Board. h the Re- gional [Director for Region 18. issueld ;I coplainl and notice of hearing on Jul\ 13. 1978. aainst Re- spondent, alleging that Respondent had enaed n and was engaing in unfair labor practices affecting commerce within the 111Caning. of Sectionii 8( 5 ) ald (I) and Section 2(6) and (7) of the Nitioral l.abor Relations Act. s amended. (opies of the charge. complaint. and notice f hearing before an Adnljiis- tratire Law Judge ,acre dul\ scired on lthe prlic to this proceeding. With respect to the uIInfair labor practices. tile corn- plaint alleges in substanrice that on Mlarch 6. 1978. following a Board election in ('ase 18 R(' 1153 1. tle Union was duIN certified iS the ccclusise cllccti\c- ba rgaining representalive of Respondent's emploceCs ill the unit found applopriatlc: ;and tIhat. colllielic- ing on or about .June 16. 178. and ;Iat a11 ll times there- after. Respondent Ias refused. anlld ContinuesC to dateIC to refuse. to argain collectiscls \it the iollil ;Ias the exclusive bargain]ng representative. ;althou_,h the Union has requestled and is eqllesinrg it to do so. ()n Julv 20. 1978. Respondent filed its aswer to tlie complaint admittin i part. arid denrn i part. tile allegations in the complaint. sublItting affirmative defenses and requesting that the conmplaint e dis- missed in its entiret. On August 23. 1978 counsel or tlihe (iencra Counsel filed direct\ kith Ihe Boarl d aI lMotion or Sumniimars Judgment aild rief ii spport tllclcof. Susequently. on August 28. 1978. the Board issued an order transferring the proceding to t e Boaid and a Notice '10o Sho ('ause vuh\ tile (;ciiral ('o)Lini- Il I11 l] IIOI tC I\ AllkCfl O[ lhC ICt. ol II l it [' [ l ikn p1k't k d ] (as It, R( 115t . as the l i n "lrai dt lcd tit t' i1 i 20 ) oI Of t ioard's R l ao.86 d R h I" IC"'ldi S ~ I jt'ih oslt l(P1R h 6 h' \ % RH ul's I 19071 ClltJ inS I 2d ( l IIhh (', Ig68): ~,-hhn 1gt l? ' * ,, I (~? \1 RBt I,] (19(07?L chl 41, I ',, 26('~lhtIF 969)51ntl y/~ (, ' . I' hc' ruse iSsuCS \\IiClih s CrC rCCnCted to I ind decidcd h\ thec Iid il tlhe' l cII IeICSn'ltll r lCl it crs. - I l\s of te Icord tiiCI. icluding te record in ase 8 R( I1531. shos ks the follosiAg: -n A- gust 8. 1977. tlie I ioll fled ai petitirion \1 hicl a Le:MLri. igsi held on Atuist 23. 977. Oil September 9. 1977. tlic Regional DI)irector ssued a Decision ind [)irection of I lection ill sslich tle appropriate unit for collecti\ C baruIinig i \cas found to onsist of all full-timCe id r laILr parl-lirite production ll i maill- tnenariceo 'ril CCs CIIplo\ ed the niplo\er at its I'cll. Io\ta. fcilitl, including inventors control de- pt111111cin l Cllplo ees, social securtit\ anr1liitalits. InAl- it ctol trl inspector and leadmen: ce\cludin dIrafts- utCi. titie stlti, elnplo\ees. iduistril eriginreerinrg deprlmCt cnt eiplowecs. eineeriig deparltrtent em- pie\ces. Sirnner sder nts. profesional l merplo\ces, OIf:C clerical CT11iploseS. LLguards. aid supervisors Ils defined iln tle \ct. ()n ()ctober 21. 1977. an election b%\ eccet hbailll as entiireted Ulnder te directio of thli Rional Di)reclot .iiiioi1g the cploccs tile unit dscribed ,iboe. \ maiijorit. of he unit eriplo,- eCs dScSiucd Itlrd sclcCted tie [ '111011 in their el- scltu;tl %C fol thC purpose of collCclilc bcrnlIrig 15 616 D)ECISIONS OF NATIONAL I.ABOR RELATIONS BOARD with Respondent. On October 27, 1977. Respondent filed ObJections to the Election and C(onduct Affect- ing the Results of the lection. hereafter, on No- vember 7, 1978, the Hearing Officer mnade his Report on Ohjections and recommended to the Board that all objections be overruled and that the Petitioner he certified as the appropriate representative. On Fehru- ary 7, 1978. the Hearing Officer issued an Errata cor- recting his Report on Objections. On ebruar, 16, 1978, Respondent filed exceptions and brief in sup- port thereof to the htearing Officer's Report on ()h- jections. On March 6 1978. the Regional I)irector issued the Second Supplemental Decision and Order and Certification of Representative. B a brief lated March 6 1978, Respondent fiied with the Board a Request for Review of the Regional Director's Sec- ond Supplemental ecision and Order. he Request for Review was denied by the Board on Ma, 2. 1978. C(ommencing on or about \Maa 30() 1978, and all times thereafter, the Union has requested Respon- dent to bargain collectivels with it as the exclusin: collective-bargaining representative, and is continu- ing to request Respondent to recognize and bargain collectively with it concerning the emploees' rates of pays wages. hours, and other terms and conditions of employment. Respondent admits that since on or about June 16. 1978, and at ll times thereafter, it has refused, and is continuing to refuse. to recognize the Union and to meet and bargain collectivelN with the Union as the exclusive bargaining representative of Respondent's unit emploees. Respondent seeks to justify its refusal to recoignize and deal with the Union on the grounds that the election should have been set aside for the reasons set forth in Respondent's Objections to Election alln ('onduct Affecting the Election: that the Regional Director erred in failing to sustain the Respondent's exceptions to the ttearing Officer's Report on Objec- tions; and, that the Board erred in failing to graltl Respondent's Request for Review of tile Regional Director's Second Supplemental Decision and O()der and erred in failing to direct a second election. The issues which Respondent seeks to raise at this time were raised and decided b\, the Regional DIirec- tor in the underlying representation proceeding. In denying Respondent's Request for Review of the Re- gional Director's Second Supplemental Decision and Order and Certification of Reprcsenltative, the Board affirmed the Regional Director's findings with re- spect to the disposition of Respondent's objections which were overruled in their entiretN. Responden is attempting to raise issues which were specificall considered and resolved by the Regional )irectolr and the Board in the underlying representation case.' It is well settled that in the absence of newI: ldis- 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.) All issues raised bh Respondent in this proceeding were or could have een litigated in the prior repre- sentation proceeding , and Respondent does not offer to addiuce a a hearing any newly discovered or pre- \:iouslv 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 proper- I: litigable in this unfair labor practice proceeding. Accordingly. we grant the Motion for Summary .Judgment. On the basis of the entire record, the Board makes thile following: FINI)IN(iS (1:F [\('1 I 1111 l SNI SS () RSP'O)NI)I NI Respondent Van G(orp C(orporation has its princi- pal office and place of business in Pella, owa, where it is engaged in the manufacture and distribution of power transmission equipment. During the ear end- ing )ecember 31. 1977, which period is representa- tive of its operation during all times material herein. Respondent in the course and conduct of its business operations malnufactured, sold. and distributed at its Pella, owa. facilit , products valued in excess of $50000. of which products in excess of $50.00 were shipped from said faclit, di ectl to points outside of ow\a. Rcs l, lCllt ,,Â¢rils. t itl Oit, li ic ti ' Boald errcd il oscrruing i , ittll ( i,c I R( Il3 ulcilc Rcsplndcn l haid llcvcd lill I1h I' IthC e.11il I ()IIeCl RcpiiI II ()hlCtilln. the Rcioiiiai l )lrc l l lld1 1lt1 1aIl II[ [ Rc',pol dneldl llllIn r eplr ltpi lcrl ll aII Cllahtnl , under CllieC tile ,1 d d sc l h. . 1 i II / 11 , lil , ,, ( I i- iii s ( ir/.l llmi. IIl- 14) NI.RB 22I I Im' i..r lhit l fir.n h m II l /t,,l/i, k,, A I,;,,ld 'tlalA . Il, ( 228 NlRB 131 1 19'7'1 IlhcIn-Mclnic I lrlilr and Z encliher lenkin, Oiienmiinr - hc Blrd a ili 1 llllll I)llcnCilr's Illl/in g hc Ictrll RcspionIdenll' Re- ,:t 1 I cv l l i Rcglll ImR , A n )l[ctt l o' Sctollnd SlppIlelnlllll I)clioli d1d ()1C .1c ( c rfll ,. llli , R clC 'lllalrCt Sluhs'ctluCirl. II (l.li'l A,m,, t I Iir,,, w I . '23) NLRB 619. which issued on D)cenlbhel 6. 197. Sli ,Llid IlCii CI Iilll l ]' t 11 Nll irph,. ls 'elllring) ovrrruled IShopi nwl I I dlIr! ",lI l li I lCll I te t it 11 siiiilrdi I ll f I IIr I llC 1d rll [rcre- %1lliuIIEI1I rIhIt ICoI eiiii tlllCtllled n 11l 111/ l ( c ,tllll ( I ,. l lpll 1. IlI \cm ,rdl/I'. N ,lllb s llkirX .tnd I rilucdilc ihic rconlsidered thie 1ni- Iilrc.llltlll IIitCIII II I ii lr lIietd hereiil nUdel the rlnda.rd o f lreiers is cic II1 iir ii!t Al/ ii ,ill I lld l i der t sta nda rd, find leat the rllirep- li i iill ih .lll l ion re ihlt ilffllrellt Ito lirrill e tirn aid Iet * cl - rIII \lCIlIltl ii.ll ph idhe ,cs i her p in SI / X lr itqy/1sl A ll d aci cord- r1i . hIi ndx 11no IlCtil t I, c i lle cd Ilisreprerscnltilions 5Sc 1'llli lll P/libl (,/;i (, \ \ I JIB 31 1 S. 1 4 0. 12 19411 Rulc, iiul Rvjll inls It thur i l)ird. Sccs 111)2 I67(f 1 112h69(c I)cpiilc .it [iil tha Re 2 rcin rr fir l h) Icrl rir 1 ItD, O tI ri ns i 1l ( irtr 18 R( I IlI] Rc.pn)dci i iel l IICI l t ILOld 1l 1;1e ; h.earin (i the ,1arlne nmlatlr iii 111 I l Irc 1 A i, t11li 1lo IllCI 11 Itir, t)ilel rllll VAN G;ORP CORPORATION 617 Respondent admits and we find. on the basis of the foregoing that Respondent is. and has been at all times material herein, a:n employer engaged in conl- merce 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. 11 1111 I BOR ()R(\Il/-IIO\ '\%()l 1 1) UJnited Automobile. Aerospace and Agricultural Implement Workers. Internationall Union. UAW, is a labor organization within the meaning of Section 2(5) of the Act. 111. TIlE NEAIR I.ABOP PRACTICES ,. 7h11 Reprevetwtitln Pr(ceutnln' I. The unit The following employees of Respondent co)nstitutc a unit appropriate for collective-hargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees employed b\ the Employer at its Pella. Iowa. facilit\, includinLg inventory control department employees, social securit? annuitants, production contro' depart- ment employees. qualit: control inspector and leadmen: excluding draftsmen. time studs em- ploees, industrial engineering department em- plovees, engineering department emplo ees. summer students. professional emplo ees. ffice clerical employees. guards, and supervisors as defined in the Act. 2. The certification On October 21. 1977 a mnlajorilt of the emplosees of Respondent in said unit. in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 18. designated the Union as their representative for the purpose of collective baroain- ing with Respondent. The Union was certified as the collective-bargain ing representative of the emplo ees in said unit on March 6. 1978. and the Linion contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Reque.r To Bargain nd Re.poim'N Re/usiul ('ommencing on or about Mav 30() 1978. and at all times thereafter. the Union has requested Respon- dent to bargain collectivel with it as the exclusie collecti c-harining rpresentati e of all the em- plo\ ecs ill te ahove-described unit. ('ommencing on or about June 16. 1978. and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Inion as the exclusive representative for collective bargaining of all emploees in said unit. Accordinly, we find that Respondent has. sincc lMa\ 30. 1978. and at all times thereafter, refused to hargain collectivelN with the Union as the exclusive representative of the emplosees in the appropriate unit. and that. bh such refusal. Respondent has en- gageled in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IN It I 1 11( I OI Ill I \1 \IR I ,%BOR PR( II( IS I P()\ ('()M1M R( I T'he activities of Respondent set forth in section Ill, above, occurring in connection with its opera- 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. Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and () of the Act. we shall order that it cease and desist therefrom and, upon request. bargain collectivel\ with the Union as the exclusixNe representative of all employees in the ap- propriate unit. and, if an understanding is reached. emhbodv such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will he accorded the services of their se- lected bargaining agent for the period provided h\ law. we shall construe the initial period of certifica- tion as beginnling on the date Respondent commenc- es to hargain in good faith with the Union as the recognized bargaining representative in the appropri- te ullnit. See W:1art-J Poullr (C ompanl. Inc.. 136 N l.R 785 (1962): (ommerce (omtparnl h a L(amitr HIotl 140 NLRB 226. 229 (1962). enfd. 328 F.2d 60() (5th ('ir. 1964). cert. denied 379 U.S. 817; Burnet (ant11(tlioil ( oln Cjotlyl/t 149 NI RB 1419, 1421 (1964). enfd. 350 F'.2d 57 (I th Cir. 1965). 'The Board. upon the basis of the foregoing facts and the entire record, makes the following: (o( It slo\S 1 o .,\i, I. Van Gorp C(orporation is an emploxer enlgaged in commerce within the meaning of Section 2(6) and (7) of the Act. VAN GORP CORPORATION ... . . 618 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD 2. United Automobile. Aerospace and Agricul- tural Implement Workers, International UJnion, UAW, is a labor organization within the meanin of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees employed b the Em- ployer at its Pella, Iowa. facility, including inventor\ control department employees, production control department employees, social security annLuitants. quality control inspector a nd leadmen: excluding draftsmen. time study employees, industrial engi- neering department employees, engineering depart- ment employeces, summer students, professional em- ployees. office clerical employees. guards. and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective argainilng within the meaning of Section 9(h) of the Act. 4. Since March 6 1978. the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 30. 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 the aforesaid refusal to bargain. Respondent has interfered with, restrained, and coerced. and is interfering with. restraining. and coercing. enplo\ ees 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)(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 the Respondent. Van Gorp C('orporation. Pella, Iowa. its fficers. agents. successors, and assigns. shall: I. ('ease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with United Automobile, Aerospace and Agricultural Implement Workers, In- ternational Union. UAW. as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time production and maintenance employees employed by the tnlplo er at its Pella, Iowa, facility, including inventory, control department employees. pro- duction control department employees, social security annuitants, quality control inspector and leaclmen: excluding draftsmen, time study employees. industrial engineering department employees. engineering department employees. summer students. professional employees, office clerical employees. guards. and supervisors as defined in the Act. (b) In an' 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 office and place of business in Pella, Iowa. copies of the attached notice marked "Appen- dix." (Copies of said notice, on forms provided by the Regional I)irector for Region 18. after being duly signed bh Respondent's representative, shall be post- ed b 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. 1 t1 ilxe CIi l t 11l i Order s enforced h\ ia udelt enl of a Illled S.lle ( .t 1l \1 eal. tIhe kords ,,il the rolice rd. di"ng slPed kh Order of the \atlaiul (I ho Reli.tion, Hoid" htall read '"Posled Pursuant to .Judg- lcrlt o tCe I Iltcd Stlatle ( ou ll o Appel 1:niforcing a.r Order of the \., iir,lll I ho Reltioi n, Board " VAN GORP CORPORATION 619 APPEN [IX Nol I (r To E1'I ()1 I S Pos Il) BY ORI)I K ()I 111 NAtI()NAI LN.BOR RIl II(IoNS BHARI) An Agency of the United States Government WF WI . Nor refuse to bargain collectively concerning rates of pay, wages, hours. and other terms and conditions of employment with United Automobile. Aerospace and Agricultural Implement Workers, International Union, UAW, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL N1 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 wl. upon request. bargain ith 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- ployiment. and. if an understanding is reached. embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees employed by the Employer at its Pella, Iowa. facility, in- cluding inventory control department em- ployees, production control department em- ployees, social security annuitants, quality control inspector and leadmen: excluding draftsmen, time study employees, industrial engineering department employees. engineer- ing department employees, summer students. professional employees, office clerical em- ployees. guards. and supervisors as defined in the Act. VAN GoRP CORPORA ON VAN GORP CORPORATION