Bell Foundry Co.

National Labor Relations Board - Board Decisions

Jan 29, 1986

278 N.L.R.B. 282 (N.L.R.B. 1986)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell Foundry Company and Wholesale Delivery
Drivers and Salesmen Local 848 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case 21-CA-
24052
29 January 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
Upon a charge filed by the Union 24 July 1985,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 9 August 1985
against the Company, Bell Foundry Company, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 26 June 1985, fol-
lowing a Board election in Case 21-RC-16868, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 15 July 1985 the Company has re-
fused to bargain with the Union. On 14 August
1985 the Company filed its answer admitting in
part and denying in part the allegations in the com-
plaint.
On 10 October 1985 the General Counsel filed a
Motion for Summary Judgment. On 15 October
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. On
29 October 1985 the Company filed a brief with
the Board opposing the General Counsel's motion.
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 complaint, the Company
admits that the Union was certified by the Board as
bargaining representative of its employees in an ap-
propriate unit and that it has refused to bargain
with the Union. However, in its answer and brief
in opposition to the General Counsel's motion, the
Company contends that the Board's delay in direct-
ing a hearing on its objection in Case 21-RC-16868
amounted to a denial of due process and that a
hearing is necessary to determine what effect, if
any, the delay may have had on the testimony of
the Company's witnesses in the above representa-
278 NLRB No. 44
tion hearing. It further contends that a high turn-
over rate among its unit employees affords it a rea-
sonable basis for doubting the Union's majority
status and that it is entitled to a hearing to present
evidence to rebut the presumption of the Union's
majority status.
The record, including the record in Case 21-
RC-16868, reveals that on 29 October 1981 the
Company, following an election in the above repre-
sentation case, filed objections to the election.' On
9 December 1981 the Regional Director for Region
21 issued a Report on Objections recommending
that the Company's objections be overruled in their
entirety, and that the Union be certified as the col-
lective-bargaining representative of the Company's
unit employees. On 22 December 1981 the Compa-
ny filed timely exceptions to the Regional Direc-
tor's report with the Board.
On 31 January 1985 the Board, in an unpublished
decision, directed that a hearing be held to resolve
issues raised by the Company's Objection 1, and
adopted the Regional Director's recommendation
to overrule the remaining objections.
Following a hearing on the Company's Objec-
tion 1, the hearing officer on 4 April 1985 issued a
report recommending that the objection be over-
ruled and that the Board issue a Certification of
Representative. On 16 April 1985 the Company
filed timely exceptions to the hearing officer's
report excepting, inter alia, "to the delay in the
Board's processes" in directing a hearing on its ob-
jection.2 On 26 June 1985 the Board issued an un-
published decision fording no merit to the Compa-
ny's exceptions, adopting the hearing officer's rec-
ommended overruling of the Company's Objection
1, and certifying the Union as the exclusive bar-
gaining representative of the Company's unit em-
ployees.
By letter dated 9 July 1985 the Union requested
that the Company bargain with it concerning the
terms and conditions of employment of employees
in the unit certified by the Board on 26 June 1985.
For the above-stated reasons the Company, on 15
July 1985, refused, and is continuing to refuse, to
bargain with the Union.
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
1 The Company filed four objections Objection I alleged that union
officials and supporters threatened employees with violence and reprisals
if they did not support the Union and its activities; Objection 2 alleged
that union officials forced employees to sign authorization cards, Objec-
tion 3 alleged that the Union, at a meeting 24 hours prior to the election,
promised employees certain benefits to obtain their support; and Objec-
tion°4 alleged certain misconduct by the Board agent supervising the
election.
2 Although it excepted generally to the Board's delay in directing a
hearing on its objection, the Company presented no argument in its brief
in support of that exception
BELL FOUNDRY CO. 283
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(fj 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
circumstances3 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.4 -
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company is a California corporation en-
gaged in the operation of a foundry in South Gate,
California. In the course and conduct of its busi-
ness, the Company annually purchases and receives
goods and products valued in excess of $50,000 di-
rectly from suppliers located outside the State of
California. We find that the Company is` an em-
ployer engaged 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 Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held on 23 October 1981,
the Union was certified on 26 June 1985 as the col-
lective-bargaining representative of the employees
in the following appropriate unit:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men and truck drivers employed by the Em-
3 The Company's contention, that it is entitled to a hearing to deter-
mine if the Union still retains a majority support due to an alleged high
turnover rate among unit employees, is without merit. A union's contin-
ued majority status is conclusively presumed' to exist for 1 year from the
date of certification and employee turnover does not justify an employ-
er's refusal to bargain Washington Street Foundry, 268 NLRB 338 (1983),
Golden Coach, 266 NLRB 62, 64 (1983)
4 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, to the extent that the
Company attacks the underlying representation proceeding, it is not enti-
tled to litigate in this proceeding issues which could have been or were
litigated in the underlying proceeding
`ployer at its facilities located in South Gate,
California ; excluding all- other employees,
office clerical employees , professional employ-
ees, 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 .9 July 1985 the Union has requested the
Company to bargain, and since 15 July 1985 the
Company has refused. We find that this refusal
constitutes an-unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 15 July 1985 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, 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.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shalt 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, Bell Foundry Company, South
Gate, California, its officers , agents , successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Wholesale Delivery
Drivers and Salesmen Local 848, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America as the exclusive bar-
gaining representative of the employees- in the bar-
11 1gaining unit. 1
284 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
(b) 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 production and maintenance employees,
shipping and receiving employees, warehouse-
men and truck drivers employed by the Em-
ployer at its facilities located in South Gate,
California; excluding all other employees,
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
(b) Post at its facility in South Gate, California,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, 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
to ensure that the notices are not-altered, defaced,
or covered by any other material.
5 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 Nation-
al 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 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 Wholesale
Delivery Drivers and Salesmen Local 848, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen & Helpers of America as the exclusive
representative of the' employees in the bargaining
unit.
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 production and maintenance employees,
shipping and receiving employees, warehouse-
men and truck drivers employed by the Em-
ployer at its facilities located in South Gate,
California; excluding all other employees,
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
BELL FOUNDRY COMPANY