Alcan Cable West

National Labor Relations Board - Board Decisions

Feb 23, 1978

234 N.L.R.B. 1050 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alcan Cable West, Division of Alcan Aluminum
Corporation and United Steelworkers of America,
AFL-CIO. Case 32-CA-266 (formerly 20-CA-
13129)
February 23, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on July 13, 1977,1 by United
Steelworkers of America, AFL-CIO, herein called
the Union, and duly served on Alcan Cable West,
Division of Alcan Aluminum Corporation, herein
called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 20, issued a complaint on
August 18 against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 before an Administrative 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 May 9,
following a Board election in Case 20-RC-13739, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commenc-
ing on or about July 13, and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
August 31, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint and stating as affirma-
tive defenses that (1) the complaint fails to state a
claim upon which relief may be granted and (2) the
Union, its agents, and supporters engaged in exten-
sive objectionable conduct which interfered with the
conduct of a proper secret-ballot election.
On November 23, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment and a memorandum in support thereof.
Subsequently, on December 13, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
I Unless otherwise indicated, all events herein occurred in 1977.
2 Official notice is taken of the record in the representation proceeding,
Case 20-RC-13739, as the term "record" is defined in Secs. 102.68 and
10
2
.
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
234 NLRB No. 165
Motion for Summary Judgment should not be
granted. Thereafter, Respondent filed a response to
Notice To Show Cause and supporting memoran-
dum, and a Cross-Motion for Summary Judgment.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 response to
Notice To Show Cause and supporting memoran-
dum, the Respondent, in substance, attacks the
validity of the Union's certification on the grounds
that the Board improperly overruled its objections to
the election in the underlying representation pro-
ceeding and denied its request for a hearing on
substantial and material issues of fact raised by the
objections. The General Counsel, on the other hand,
argues that all material issues have been previously
decided and that there are no litigable issues of fact
warranting a hearing. We agree with the General
Counsel.
Review of the record herein, including that in the
representation proceeding, Case 20-RC-13739, es-
tablishes that, pursuant to a Stipulation for Certifica-
tion Upon Consent Election, an election was con-
ducted on November 12, 1976, which the Union won
by a vote of 49 to 34 with 2 challenged ballots. The
Respondent filed timely objections to conduct affect-
ing the results of the election alleging, inter alia, that
(I) the Union, by promises of benefits, threats of
reprisals, and other coercive conduct, induced em-
ployees to vote for it; (2) the Union campaigned at or
near the polling area during the election, thereby
intimidating or inducing employees into voting for it;
(3) the presence of Harry Preece, a union officer,
former employee, and alleged discriminatory dis-
chargee and his conduct before, during, and after he
voted prejudiced the election; (4) third parties
coerced employees into participating in the election
and voting for the Union; (5) the Board agent
conducting the election discriminatorily enforced a
policy against carrying anything into the voting
booth, thereby creating a "racial incident;" (6) the
Board agent, by opening the polls late, prevented an
undetermined number of employees from voting;
and (7) the Board agent, by allowing a "carnival
(C.A. 5, 1969); Inlertype 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, as amended.
3 These documents, dated "December . 1977," were received by the
Board on December 27.
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ALCAN CABLE WEST
atmosphere" at the polls and exhibiting bias, preju-
dice, and favoritism toward the Union, destroyed the
necessary laboratory conditions. After investigation,
the Acting Regional Director for Region 20 issued,
on January 24, his report on objections in which he
concluded that none of the Respondent's objections
warranted setting aside the election. The Respondent
filed timely exceptions and a supporting brief with
attached affidavits, reiterating its objections and
contentions and requesting a hearing on the objec-
tions. On May 9, the Board, after reviewing the
record in light of the Respondent's exceptions and
brief, found that the Employer's exceptions raised no
material or substantial issues of fact or law that
would warrant reversal of the Acting Regional
Director's recommendations or require a hearing,
adopted his findings and recommendations, and
certified the Union.
Thereafter, on May 23, the Respondent filed a
motion for reconsideration requesting that the Board
reconsider its decision and direct the election to be
set aside or, in the alternative, that an evidentiary
hearing be held to investigate the factual issues raised
by the objections. In an order dated June 2, the
Board denied Respondent's motion on the grounds
that it was lacking in merit and contained nothing
not previously considered by the Board.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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. 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
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. Accordingly, we grant the Gen-
eral Counsel's Motion for Summary Judgment. 5
On the basis of the entire record, the Board makes
the following:
4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Sees. 102.67(0 and 102.69(c).
s The Respondent asserts in its Cross-Motion for Summary Judgment
that "there are no material issues of fact regarding the existence of its
objective good-faith doubt concerning charging party's majority status and
other consideration [sic ] which create a full and complete defense to its duty
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and at all times material herein has
been, a corporation with an office and place of
business in Rocklin, California, where it is engaged
in the business of producing bare insulated cable
products. During the past calendar year Respondent
has, in the course and conduct of its business
operation, sold goods valued in excess of $50,000
directly to customers located outside the State of
California.
We find, on the basis of the foregoing, that
Respondent 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.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees of the Employer at its Rocklin,
California, location, excluding laboratory techni-
cians, purchasing agents, office clerical employ-
ees, salesmen, production control employees,
managers, guards and supervisors as defined in
the Act.
2. The certification
On November 12, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 20, 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 May
to bargain at the present time with the charging party." Inasmuch as the
Respondent has presented no basis for doubting the Union's majority status
other than the matters raised and fully litigated in the underlying
representation proceeding, we find the Respondent's assertion without
merit. Accordingly, the Respondent's Cross-Motion for Summary Judgment
is hereby denied.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9, 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 May 11, and at all times
thereafter, the Union has requested the Respondent
to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about July 13, 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.
Accordingly, we find that the Respondent has,
since July 13, 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade, traff-
ic, 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, 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett 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. Alcan Cable West, Division of Alcan Alumi-
num Corporation, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. United Steelworkers of America, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All employees of the Employer at its Rocklin,
California, location, excluding laboratory techni-
cians, purchasing agents, office clerical employees,
salesmen, production control employees, managers,
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 May 9, the above-named labor organiza-
tion has been and now is the certified and exclusive
representative of all employees in the aforesaid
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 July 13, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
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
Relations Board hereby orders that the Respondent,
Alcan Cable West, Division Alcan Aluminum Cor-
poration, Rocklin, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
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ALCAN CABLE WEST
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Steelworkers
of America, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All employees of the Employer at its Rocklin,
California, location, excluding laboratory techni-
cians, purchasing agents, office clerical employ-
ees, salesmen, production control employees,
managers, guards 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
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 Rocklin, California, location 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 signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
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 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."
(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 herewith.
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 United
Steelworkers of America, AFL-CIO, as the exclu-
sive representative of the employees in the bar-
gaining 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 representa-
tive 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 tn understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees of the Employer at its
Rocklin, California, location, excluding lab-
oratory technicians, purchasing agents, of-
fice clerical employees, salesmen, production
control employees, managers, guards and
supervisors as defined in the Act.
ALCAN CABLE WEST,
DIVISION OF ALCAN
ALUMINUM
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