Allis Chalmers Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 606 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allis Chalmers Corporation and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, (UAW). Case
13-CA-19918
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.O
Upon a charge filed on May 14, 1980, by Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served
on Allis Chalmers Corporation, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 13, issued a complaint on June 11, 1980,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 charge and 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 March 27,
1980, following a Board election in Case 13-RC-
15189 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 28, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 23, 1980, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 11, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 22, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
Official notice is taken of the record in the representation proceed-
ing, Case 13-RC-15189, 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 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co, 167 NLRB 151 1967), enfd. 415
F.2d 26 (5th Cir 1969); Intertype Co. . Penello. 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 14 NL.RB 378 (1967). enfd. 397 F.2d 91
(7th Cir 1968R); Sec. 9(d) of the NLRA. as amended.
252 NLRB No. 63
thereafter filed a response to the Notice To Show
Cause. 2
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 response to
the Notice To Show Cause, Respondent admits the
refusal to recognize and bargain with the Union
but denies that a majority of the unit employees se-
lected the Union as their collective-bargaining rep-
resentative. Further, in its answer to the complaint
Respondent affirmatively asserts that: (1) the certi-
fication of the Union is invalid because the Region-
al Director erred in not properly investigating, sus-
taining, or granting a hearing on Respondent's ob-
jections which alleged numerous incidents of cam-
paign misconduct sufficient to set aside the election
and (2) the Board in considering the Employer's
exceptions to the Regional Director's report may
have failed to consider certain materials obtained
by the Regional Director during the course of his
investigation. :' In its response to the Notice To
Show Cause4 Respondent asserts, inter alia, that
the Board should revoke the Union's certification
and remad the case for full evidentiary hearing or,
alternatively, the Board should review the contents
of the investigative file concerning the Employer's
exceptions. The General Counsel contends that Re-
spondent is attempting to relitigate issues which
were or could have been decided in the underlying
representation case. We find merit to the General
Counsel's contention.
Our review of the record herein, including the
record in Case 13-RC-15189, reveals that pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on August 31,
1979. Of the total number of votes cast, 96 were
for the Union, 81 against, and there were 2 chal-
lenged ballots. On September 7, 1979, Respondent
filed objections to conduct affecting the results of
the election.
We hereby grant Respondent's motion Io supplement its opxsition
to the General Counsel's Motion for Summary Judgment Filed on Sep-
tember 24, 1980. We have considered the documents submitted and find
that they do not affect the results.
:' In support of this contention, Respondent relies on Prestolite Wire Di-
vision v. N.L.R.B., 592 F.2d 302 (6th Cir. 1979), and N.L.R.B. v. Cam-
bridge Wire Cloth Co., 622 F 2d 1195 (4th Cir 1980).
' The Respondent has requested oral argument. This request is hereby
denied as the record, Respondent's answer, and its response adequately
present the issues and the positions of the parties.
606
ALLIS CHtAI.MERS CORPORATION
On December 12, 1979, the Regional Director
issued his Report on Objections in which he rec-
ommended that the Board overrule the objections
in their entirety and that a Certification of Repre-
sentative be issued to the Union. Respondent, on
January 4, 1980, filed exceptions to the Regional
Director's Report on Objections essentially reiterat-
ing its objections and arguing that the election
should be set aside or alternatively the case should
be remanded to the Regional Director for a hear-
ing on the objections. On March 27, 1980, the
Board issued a Decision and Certification of Repre-
sentative in which it adopted the Regional Direc-
tor's findings and recommendations.
Respondent contends that the Board's review of
the Regional Director's Report on Objections was
defective in that it did not have the entire investi-
gative record before it when it adopted the find-
ings and recommendations contained therein. In
support thereof, Respondent, citing Prestolite Wire
Division. supra, and Cambridge Wire Cloth Co.,
supra, argues that the Board should consider the
entire record in the representation proceeding "pre-
sumably as supplemented by a proper hearing." We
reject his contention inasmuch as we disagree with
the holding of the courts in those two cases and re-
spectfully decline to follow it.5 Section 3(b) of the
Act authorizes the Board to delegate to its regional
directors its powers under Section 9, and places
review of any such delegated action by a regional
director within the Board's discretion. We find that
it was a proper exercise of our discretion to adopt
the regional director's decision in the underlying
representation matter inasmuch as Respondent's ex-
ceptions thereto raised no substantial or material
issues to warrant a hearing. This finding is support-
ed by the Act's policy of expeditiously resolving
questions concerning representation. 6
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. 7
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
5 See Southwest Color Printing Corporation. 247 NLRB No 127 (1980).
" Trustees of Boston niverirty, 242 NLRB 110 (1979)
7 See Pittsburgh Plate Glass Co. .N'LR B., 313 U S 146, 162 (1941):
Rules and Regulations of the Board, Secs 102 67(f and 102 69(c)
issue which is properly 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 the following:
FINDINGS 01 FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a diversified manufacturer and has
facilities throughout the United States, including
the Batavia, Illinois, facility which is the only fa-
cility involved herein. During the past fiscal year, a
representative period, Respondent, in the course
and conduct of its business operations has received
goods and materials valued in excess of $50,000 at
its Batavia, Illinois, facility directly from points lo-
cated outside the State of Illinois.
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.
11. THE ABOR ORGANIZATION INVOILVED
International Union, United Automobile, Aero-
space, and Agricultural Implement Workers of
America, (UAW), is a labor organization within
the meaning of Section 2(5) of the Act.
111. THE UNFAIR I.ABOR 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 warehouse employees and warehouse
maintenance employees of the Employer now
located at 1500 North Raddant Road, Batavia,
Illinois, but excluding all office clerical em-
ployees, plant clerical employees, truck driv-
ers, professional employees, guards, and super-
visors as defined in the Act.
2. The certification
On August 31, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 13, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on March 27, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request 7bo Bargain and Respondent's
Refusal
Commencing on or about April 8, 1980, 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 April 28, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
April 28, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THE I.FI:F CT OF THE UNFAIR I.ABOR
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. Allis Chalmers Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, (UAW), is a labor organization within
the meaning of Section 2(5) of the Act.
3. All warehouse employees and warehouse
maintenance employees of the Employer now lo-
cated at 1500 North Raddant Road, Batavia, Illi-
nois, but excluding all office clerical employees,
plant clerical employees, truck drivers, professional
employees, guards, and supervisors constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since March 27, 1980, 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 April 28, 1980, 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 prac-
tices 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,
608
ALLIS CHALMERS CORPORATION
Allis Chalmers Corporation, Batavia, Illinois, its of-
ficers, 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 Automobile, Aerospace, and Agri-
cultural Implement Workers of America, (UAW),
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All warehouse employees and warehouse
maintenance employees of the Employer now
located at 1500 North Raddant Road, Batavia,
Illinois, but excluding all office clerical em-
ployees, plant clerical employees, truck driv-
ers, professional employees, guards, and super-
visors.
(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 Batavia, Illinois, facility copies of
the attached notice marked "Appendix." 8 Copies
of said notice, on forms provided by the Regional
Director for Region 13 after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
8 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 Pursu-
ant 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 13,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE TO EMPILOYEES
POSTED BY ORDI)ER OF He
NATIONAI. LABOR REIATIONS BOARD
An Agency of the United States Government
WE WII.L NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America, (UAW), as the exclusive rep-
resentative 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 WILL., 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 warehouse employees and warehouse
maintenance employees located at 1500
North Raddant Road, Batavia, Illinois, but
excluding all office clerical employees, plant
clerical employees, truck drivers, profession-
al employees, guards and supervisors.
ALI.IS CHALMERS CORPORATION