American Optical Corp.

National Labor Relations Board - Board Decisions

Jul 10, 1975

219 N.L.R.B. 48 (N.L.R.B. 1975)

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Optical Corporation, Contact Lens Division
and Optical Technicians and Workers Union Local
505, Service Employees International Union, AFL-
CIO. Case 20-CA-10009
July 10, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS , AND PENELLO
Upon a charge filed on February 28, 1975, by Op-
tical Technicians and Workers Union Local 505, Ser-
vice Employees International Union, AFL-CIO,
herein called the Union, and duly served on Ameri-
can Optical Corporation, Contact Lens Division,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the Act-
ing Regional Director for Region 20, issued a com-
plaint on March 31, 1975, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting comerce 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, complaint, and notice of hearing be-
fore 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 December 27,
1974, following a Board election in Case 20-RC-
11872, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about January 29, 1975, and at all
times thereafter, Respondent has refused, and con-
tinues 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 April 11, 1975, Respondent filed its an-
swer to the complaint admitting in part, and denying
in part, the allegations in the complaint, and alleging
an affirmative defense.
On April 25, 1975, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment, asserting, in effect, that Respon-
dent, by its answer to the complaint, was attempting
to relitigate issues raised and litigated in the underly-
ing representation case. Subsequently, on May 5,
'Official notice is taken of the record in the representation proceeding,
Case 20-RC-11872, 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 (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., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
1975, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause. On
June 5, 1975, the General Counsel filed opposition to
Respondent's response to the 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
Respondent's opposition in this matter, as set forth
in its answer to the complaint and response to the
Notice To Show Cause, centers on the Board's find-
ing that the individual casting the determinative bal-
lot in the representation election was a supervisor
within the meaning of the Act and sustaining a chal-
lenge to her ballot on this basis. Respondent asserts
that the Board erred in this determination for the
reasons set forth in its brief in support of its excep-
tions to the Hearing Officer's report in that proceed-
ing, and because the status of the challenged voter as
a temporary supervisor has not been resolved. Fur-
ther, Respondent urges that a preelection agreement
concerning the challenged voter's eligibility to vote
should control.
Review of the record, including that of the repre-
sentation case , 20-RC-11872, indicates that an elec-
tion was conducted on April 19, 1974, pursuant to a
Stipulation for Certification Upon Consent Election,
in which the result was 2 votes to I in favor of the
Union, with a determinative challenged ballot. The
Union filed timely objections to conduct affecting
the results of the election. On May 14, 1974, the Re-
gional Director issued his report on objections and
challenged ballot in which he dismissed the objec-
tions because no evidence had been submitted in
support thereof, and ordered a hearing on the issues
raised by the challenged ballot. On June 3, 1974, the
Board, absent exceptions to this report, adopted the
Regional Director's recommendations.
After a hearing, the Hearing Officer issued a re-
port on challenged ballot on July 31, 1974, finding,
inter alia, that the challenged voter was a supervisor
and recommending that the challenge be sustained.
Respondent filed timely exceptions to this report, as-
signing error to the Hearing Officer's determinations
in several respects, and arguing, inter alia, that the
voter's supervisory duties, if any, were temporary. On
December 27, 1974, the Board issued a Decision and
219 NLRB No. 3
AMERICAN OPTICAL CORPORATION
Certification of Representative, adopting the Hear-
ing Officer's findings, conclusions, and recommenda-
tions, noting in footnote 1 the basis for its adoption
of the Hearing Officer's conclusion that the voter
was a supervisor, and certifying the Union.
From the foregoing, it appears that Respondent
raised and fully litigated in the representation case
the challenged voter's supervisory status, including
the alleged temporary status.
With regard to the preelection agreement concern-
ing the eligibility of the challenged voter, Respon-
dent attaches a letter dated April 2, 1974, from a
Board agent which mentions that the Union had as-
sured that it would not question the inclusion of the
challenged individual and would not challenge her
eligibility to vote. Respondent basically asserts that
this preelection agreement should be controlling on
the voter's eligibility. We do not agree. While the
Board favors and with some exceptions gives effect
to preelection eligibility agreements,2 it is settled that
such agreements cannot be controlling when the in-
clusion of a certain employee contravenes the Act or
established Board policies.' Inasmuch as the voter
challenged herein was challenged on the basis of
being a supervisor, and her status as such was subse-
quently established, it would contravene the Act to
permit her to vote in the election, and hence the pre-
election agreement is not controlling.
Further, although Respondent was clearly aware
of this agreement well before the election, it did not
allude to it or raise it as an issue in the representation
proceeding before the Board. Instead, it now offers it
at this late date, approximately a year after the elec-
tion, as a factor in determining the eligibility of the
challenged voter. In these circumstances, we are not
disposed to reconsider our rulings in the representa-
tion case on the basis of this evidence, and allow
Respondent to relitigate matters it could have raised
and litigated therein .4
It is well settled that in the absence of newly dis-
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.5
2 Norris-Thermador Corporation, 119 NLRB 1301 (1958); Fisher-New Cen-
ter Company, 184 NLRB 809 (1970).
3 Fisher-New Center Company, supra
Member Penello agrees that the asserted preelection agreement concern-
ing the eligibility of the challenged individual is not entitled to any weight,
but relies solely on the failure of the Respondent to raise this issue in the
representation proceeding or to offer the now proffered letter of April 2,
1974. Accordingly, he finds it unnecessary to consider whether the claimed
preelection eligibility agreement is binding under Norris-Thermador Corpo-
ration, 119 NLRB 1301 (1958). Cf. Banner Bedding, Inc., 214 NLRB No. 139
(1974).
5See Pittsburgh Plate Glass Co. v NL.R.B, 313 U.S. 146, 162 (1941);
49
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 de-
cision 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
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation with a
place of business in San Francisco, California, and
has been engaged in the manufacture of optical
goods, supplies, and equipment at various facilities
throughout the United States. During the past year,
Respondent, in the course and conduct of its busi-
ness operations, purchased and received at its facili-
ties in the State of California goods valued in excess
of $50,000 which were shipped to it from sources lo-
cated outside the State of California. During the
same period, Respondent sold and shipped from its
facilities in the State of California goods and prod-
ucts valued in excess of $50,000 directly to purchas-
ers located outside the State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section2(6) and (7) of the Act, and that it
will effectuate the policies of- the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Optical Technicians and Workers Union Local
505, Service Employees International Union, 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 con-
Rules and Regulations of the Board, Secs 102.67(f) and 102 69(c)
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All contact lens production employees of the
Employer at its 560 Sutter Street, San Francisco,
California, contact lens division operation; ex-
cluding all other employees, office clerical em-
ployees, managerial employees, sales personnel,
guards, and supervisors as defined in the Act.
2. The certification
On April 19, 1974, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 20 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 27, 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 January 16, 1975, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 29, 1975, 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 January 29, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 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, 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.
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 ap-
propriate 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 se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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); Bur-
nett 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. American Optical Corporation, Contact Lens
Division, is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. Optical Technicians and Workers Union Local
505, Service Employees International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All contact lens production employees of the
Employer at its 560 Sutter Street, San Francisco, Cal-
ifornia, contact lens division operation; excluding all
other employees, office clerical employees, manageri-
al employees, sales personnel, guards, and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since December 27, 1974, the above-named la-
bor 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 January 29, 1975, 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
AMERICAN OPTICAL CORPORATION 51
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
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Ameri-
can Optical Corporation, Contact Lens Division, San
Francisco, California, 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 con-
ditions of employment with Optical Technicians and
Workers Union Local 505, Service Employees Inter-
national Union, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All contact lens production employees of the
Employer at its 560 Sutter Street, San Francisco,
California, contact lens division operation; ex-
cluding all other employees, office clerical em-
ployees, managerial employees, sales personnel,
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 560 Sutter Street, San Francisco,
California, location copies of the attached notice
marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 "
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 Opti-
cal Technicians and Workers Union Local 505,
Service Employees International Union, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining 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 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
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All contact lens production employees of the
Employer at its 560 Sutter Street, San Francis-
co, California, contact lens division opera-
tion; excluding all other employees, office
clerical employees, managerial employees,
sales personnel, guards, and supervisors as de-
fined in the Act.
AMERICAN OPTICAL CORPORATION,
CONTACT LENS DIVISION