Austin Continental Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1985

276 N.L.R.B. 1484 (N.L.R.B. 1985)

1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Austin Continental Industries , Inc. and District No.
8, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 13-CA-
24550
18 October 1985
DECISION AND' ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
Upon a charge filed by the Union on 10 October
1984, the General Counsel of the National Labor
Relations Board issued a complaint on 18 October
1984 and thereafter issued an amended complaint
on 18 March 1985 against the Company, the Re-
spondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act.
The amended complaint alleges that on 28
August 1984, following a Board election, the Union
was certified as the exclusive collective-bargaining
representative of the Company's employees in a
unit which later was amended on 30 November
1984 to correct an inadvertent error in the unit de-
scription. (Official notice is taken of the "record"
in the representation proceeding as defined in the
Board's Rules and Regulations, Secs. 102.68 and
102.69(g), amended Sept. 9, 1981, 46 Fed.Reg.
45922 (1981); Frontier Hotel, 265 NLRB 343
(1982).) The amended complaint further alleges
that since on or about 16 January 1985, the Compa-
ny has refused to bargain with the Union. On or
about 29 March 1985, the Company filed its answer
to the amended complaint admitting in part and de-
nying in part the allegations in the complaint.
On 24 June 1985, the General Counsel filed a
Motion To Transfer Proceedings to the Board and
a Motion for Summary Judgment. On 26 June
1985, the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company has filed no response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer to the amended complaint, the
Company admits the procedural and jurisdictional
allegations of the complaint and admits most of the
operative factual allegations, but denies that the
Union has been at all times since 28 August 1984
and is now the exclusive representative of the
Company's employees in an appropriate unit, and
that its refusals to bargain and to supply informa-
tion since on or about 16 January 1985 violated
Section 8(a)(5) of the Act. The Company also
raises as "affirmative defenses" that the amended
complaint is improper and untimely since no unfair
labor practice charge has been filed since 30 No-
vember 1984 when the Board amended the Union's
certification, and that it has no duty to recognize
and bargain with the Union in a unit which by the
Board's admission is not the appropriate unit. The
General Counsel argues that the Company's con-
tentions are without merit, and we agree.
Review of the record herein, including the
record in Case 13-RC-16410, reveals that, pursuant
to a Stipulated Election Agreement, an election
was held on 27 April 1984. The tally of ballots
shows 37 for and 21 against the Union, with 1 non-
determinative challenged ballot. Thereafter, the
Company filed timely objections to conduct affect-
ing the results of the election. On 25 May 1984 the
Acting Regional Director for Region 13 issued and
served on the parties his Report on Objections in
which he recommended overruling the Company's
objections and certifying the Union. After the
Company filed exceptions to the Acting Regional
Director's report, the Board issued its Decision and
Certification of Representative on 28 August
1984,1 in which it adopted the Acting Regional Di-
rector's recommendations to overrule the Compa-
ny's objections and certified the Union as the ex-
clusive bargaining representative of the Company's
employees in the following unit:
2A11 full-time and regular part-time production
and maintenance employees including plant clerical
employees employed at the Employer's facility
now located at 3636 North Talman Avenue, Chica-
go, Illinois, but excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
Subsequently, on 27 November 1984 the Regional
Director for Region 13 filed a "Motion to Amend
Decision and Certification of Representative." He
indicated that the Board's certification included
plant clerical employees, but that this group had
not been included in the unit to which the parties
had agreed in the Stipulation for Certification
Upon Consent Election. On 30 November 1984,
the Board, by its Deputy Executive Secretary,
issued an "Order Granting Motion and Amending
Decision and Certification of Representative"
which corrected the inadvertent error in the earlier
certification so that the unit description read as the
unit did in the stipulated election agreement, as fol-
lows:
I Not reported in Board volumes
276 NLRB No. 169
AUSTIN INDUSTRIES
All full-time and regular part-time production
and maintenance employees employed at the
Employer's facility now located at 3636 North
Talman Avenue, Chicago, Illinois, but exclud-
ing office clerical employees , professional em-
ployees, guards and supervisors as defined in
the Act.
The Company subsequently advised the Board on
or about 3 December 1984 that it did not oppose
the Regional Director's motion.
Before the Regional Director moved to amend
the certification, the Union had requested, by letter
dated 12 September 1984, that the Company fur-
nish it with information so that it could prepare for
contract negotiations. 2 The Union also requested to
meet with the Company to negotiate a contract. By
letter dated 24 September 1984, the Company ac-
knowledged receipt of the Union's letter, but re-
fused to meet and bargain on the ground that the
"Board had erred in its Decision and Certification
of Representative." After the Board amended the
certification, the Union sent the Company a letter
on 16 January 1985 again requesting the informa-
tion described above and also seeking to bargain
with the Company. The Company made no re-
sponse.
In its answer to the amended complaint, the
Company admits that on or about 16 January 1985
the Union, by letter, sought the information noted
above3 and requested bargaining and that it has
failed and refused to supply the information or to
bargain with the Union. The Company claims,
rather, that it has no duty to bargain with the
Union because the Board initially made an error in
the unit description in certifying the Union in its
Decision and Certification of Representative. How-
ever, the Board always has corrected inadvertent
and minor errors in certifications which, as here,
do not change the substance of the unit.4 We also
note that the Company did not oppose the Region-
al Director's motion in the representation case re-
questing that the correction be made. Finally, we
reject the Company's contention that the amended
complaint is improper and untimely because no
2 The information requested included a list of all employees with their
names , ages, sex , starting dates of employment , classifications , job de-
scriptions, and present rates of pay, a description of all fringe benefits the
unit employees received and how they were computed; copies of all ben-
efit plans, data on shift schedules and hours of work; current copies of
plant rules and regulations ; the method of computing incentive bonuses,
profit-sharing plans and pension plans, and information on safety pro-
grams and regulations.
3 It, is well established that information of the kind the Union has re-
quested here is presumptively relevant for purposes of collective bargain-
ing and must be provided upon request to the employees' bargaining rep-
resentative See Western Electric, 225 NLRB 1374, 1377-1378 (1976) In
this case the Company has admitted the relevance of the information.
4 Landis Tool Co., 203 NLRB 1025, 1026 (1973)
1485
unfair labor practice charge was filed after the
Board issued its amended certification. Since the
minor correction in the the unit description clearly
did not change the substance of the unit, we con-
clude that the amended certification relates back to
the election itself. Thus, the Company has had a
duty to bargain with the Union since the 27 April
1984 election. We therefore find that the amended
complaint is proper.5
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Company
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly
we grant the Motion for Summary Judgment.6
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Austin Continental Industries, Inc., an Illinois
corporation, is engaged in the manufacture of pre-
cision components for the aerospace industry at its
facility in Chicago, Illinois, where it annually sells
and ships goods and materials valued in excess of
$50,000 directly to points outside the State of Illi-
nois. We find that the Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
Although the General Counsel has argued in the Motion for Summa-
ry Judgment that the violation began on 24 September 1984 when the
Company initially rejected the Union's bargaining demand and request
for information, we note that the amended complaint specifically alleges
that the Company violated Sec. 8(a)(5) and (1) on or about 16 January
1985 and, accordingly, we find that the unlawful conduct occurred on
that date.
6 Member Babson did not participate in the underlying representation
proceeding. In joining his colleagues in granting the General Counsel's
Motion for Summary Judgment, he notes that the Respondent is not enti-
tled to litigate in this proceeding issues which could have been litigated
in the underlying representation proceeding.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held on 27 April 1984,
the Union was certified on 28 August 1984, as
amended on 30 November 1984, as the collective-
bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed at the
Employer's facility now located at 3636 North
Talman Avenue, Chicago, Illinois, but exclud-
ing `office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since about 16 January 1985, the Union has re-
quested the Company to bargain and to supply it
with relevant information, and since that date, the
Company has refused. We find that these refusals
constitute unlawful refusals to bargain in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 16 January 1985 to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, and to provide it with requested infor-
mation relevant and necessary for the purpose of
collective bargaining, the Company has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement,
and to supply the Union with requested relevant
information.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Austin Continental Industries,
Inc., Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with District No. 8,
International Association of Machinists and Aero-
space Workers, AFL-CIO as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit.
(b) Refusing to provide the Union, upon request,
information relevant and necessary for the purpose
of collective bargaining.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time production
and maintenance employees employed at the
Employer's facility now located at 3636 North
Talman Avenue, Chicago, Illinois, but exclud-
ing office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
(b) On request, bargain collectively with the
Union by furnishing it information concerning
terms and conditions of employment requested in
its letter of 16 January 1985.
(c) Post at its facility in Chicago, Illinois, copies
of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Re-
gional Director 'for Region 13, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
7 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
AUSTIN INDUSTRIES
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with District
No. 8, International Association of Machinists and
Aerospace Workers, AFL-CIO as the exclusive
representative of the employees in the bargaining
unit.
WE WILL NOT refuse to bargain collectively with
the Union by refusing to furnish it with informa-
tion concerning present terms and conditions of
1487
employment it has requested with respect to the
unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All full-time and regular part-time production
and maintenance employees employed at the
Employer 's facility now located at 3636 North
Talman Avenue, Chicago, Illinois, but exclud-
ing office clerical employees , professional em-
ployees, guards and supervisors as defined in
the Act.
WE WILL, on request , furnish the Union informa-
tion concerning terms and conditions of employ-
ment as requested in the Union 's letter of 16 Janu-
ary 1985.
AUSTIN CONTINENTAL INDUSTRIES, INC.