C & D Batteries, Division of Eltra Corporation (Chicago Branch)

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1373 (N.L.R.B. 1982)

C & D BATTERIES
C & D Batteries, Division of Eltra Corporation (Chi-
cago Branch) and DuPage County General
Teamsters and Chauffeurs Local Union No. 673,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 13-CA-21673
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMIERMAN
Upon a charge filed on October 22, 1981, by
DuPage County General Teamsters and Chauffeurs
Local Union No. 673, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the
Union, and duly served on C & D Batteries, Divi-
sion of Eltra Corporation (Chicago Branch), herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 13, issued a complaint on No-
vember 5, 1981, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
28, 1982, following a Board election in Case 13-
RC-15709, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about October
13, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On Novem-
ber 23, 1981, Respondent filed its answer to the
complaint admitting in part, and denying in part,
the allegations in the complaint.
On December 15, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
29, 1981, the Board issued an order transferring the
Official notice is taken of the record in the representation pro(eed-
ing, Case 13 RC 15709, 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 Electrosysiemrn Inc., 166 NLRB 938 (1967), enfd 38R F2d 683
(4th Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F 2d 26 (5th Cir 1969): Interrype Co. v Penello, 269 F.Supp 573
(DC.Va. 1967); Iollert Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91
(7th Cir 1968); Sec 9(d) of the NLRA, as amended
261 NLRB No. 186
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a 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
In its answer to the complaint, Respondent as-
serts that the National Labor Relations Board's fail-
ure to hold a hearing on Respondent's objections
or review the entire administrative record deprived
Respondent of due process of law. Respondent also
denies that the requested wage, fringe benefit, and
employment data, which it refused to furnish, are
necessary for and relevant to the Union's function
as exclusive collective-bargaining representaive.
In his Motion for Summary Judgment, the Gen-
eral Counsel argues that all issues raised by Re-
spondent were or could have been litigated in the
prior representation proceeding and a hearing is
not necessary in this matter, that Respondent's ob-
jections do not raise substantial or material issues
which would warrant a hearing, and that there was
no arbitrary action that would deprive Respondent
of due process. With respect to Respondent's refus-
al to furnish wage, fringe benefit, and employment
data, the General Counsel contends that such infor-
mation is presumptively relevant and must be pro-
vided upon request unless the employer submits
evidence sufficient to rebut the presumption. The
General Counsel points out that in this case Re-
spondent did not rebut the relevance of the infor-
mation sought, and submits that Respondent's
denial raises no genuine issue of material fact
which would warrant a hearing.
Our review of the record herein, including the
record in Case 13-RC-15709, discloses that the
Union filed a petition on March 16, 1981. The par-
ties entered into a Stipulation for Certification
Upon Consent Election agreement. The election
was held on May 8, 1981. The tally of ballots
shows that four votes were cast for, and two votes
were cast against, the Union with no challenged
ballots. Respondent thereafter filed timely objec-
tions to the election and on June 12, 1981, the
Union filed a motion to dismiss the Employer's ob-
jections. On June 24, 1981, the Regional Director
for Region 13 issued his Report on Objections in
which he recommended that Respondent's objec-
tions be overruled and that a certification of repre-
1373
DECISIONS OF NATIONAL. I ABOR RELATIONS BOARD
sentative issue. On or about July 6, 1981, Respond-
ent filed exceptions to the Regional Director's find-
ings and recommendations.
Following a request by the Union by letter dated
October 5, 1981, that Respondent engage in collec-
tive-bargaining negotiations with the Union, and
provide the Union with certain wage, fringe bene-
fit, and employment data, Respondent, by letter
dated October 13, 1981, refused to provide the re-
quested information or to recognize and bargain in
good faith with the Union as the exclusive bargain-
ing representative of its employees in the certified
unit.
On December 29, 1981, the proceeding was
transferred to the Board with a Notice To Show
Cause why summary judgment should not issue.
To this Respondent filed an answer dated January
11, 1982, urging denial of summary judgment and
dismissal of the complaint because its objections to
the election were valid and the Board had denied
Respondent due process by failing to hold a hear-
ing on the objections or to review the entire ad-
ministrative record. Assuming that the Board does
not dismiss the complaint, Respondent urges the
Board to hold a hearing or at least review the
entire administrative record.
Respondent cites N.L.R.B. v. Claxton Manufac-
turing Company, Inc., 613 F.2d 1364 (5th Cir. 1980).
There the court held that summary judgment was
.iiproperly granted where no hearing was conduct-
ed and the employer made sufficient showing of an
atmosphere of fear and coercion which would tend
to interfere with the election. In this case, howev-
er, Respondent has failed to show that an atmos-
phere of fear and coercion existed such as to re-
quire a hearing, based as it is on the assertion that
an employee was coerced to change his vote in the
election when he overheard two other employees
say that the Employer had bribed him to vote
against the Union in a prior election and would
probably bribe him again.
Citing N.L.R.B. v. North Electric Company, Plant
No. 10, 644 F.2d 580 (6th Cir. 1981), Respondent
argues that it was denied due process when the
Board issued its Decision and Certification of Rep-
resentative 2 without reviewing statements taken by
the Regional Director. But as the Regional Direc-
tor noted in his Report on Objections, the remarks
of the two employees, even if made as claimed by
the employee who asserted that he changed his
vote, cannot reasonably be construed as a threat. A
de novo review would, therefore, not be appropri-
ate in this case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
2 Not reported in volumes of Board Decisions
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.3
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
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 OI FACT
1. I HI. HUSINISS OF RIFSPONI)N I
Respondent is a New York corporation maintain-
ing an office and place of business in Lombard, Illi-
nois, where it is engaged in the sale, distribution,
and service of industrial lift truck batteries and
chargers. In the course and conduct of its business
operations, Respondent purchases and receives at
its Lombard, Illinois, location goods and materials
valued in excess of $50,000 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. THI I.ABOR ORGANIZATION INVOI VEt)
DuPage County General Teamsters and Chauf-
feurs Local Union No. 673, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
111. TH1F UNFAIR LABOR PRACTICEIS
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
:' See Pittshurgh Pl/at, Glass o. v N. L.R B., 313 UIS 146, 162 (1941);
Rules and Rcgulations of the Board, Secs 102 67(1 and 102.
6 9
(c)
1374
C & D BATTERIES
purposes within the meaning of Section 9(b) of the
Act:
All full-time field representatives "B" em-
ployed by the Employer at its present location
of 10 Eisenhower, Lombard, Illinois, but ex-
cluding office clerical employees, sales per-
sons, office manager, service manager, branch
manager, temporary and casual employees,
guards and supervisors as defined in the Act.
2. The certification
On May 8, 1981, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 13, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on September 28, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 5, 1981, 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 October 13, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
October 13, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of C & D Batteries, Division of
Eltra Corporation (Chicago Branch), set forth in
section III, above, occurring in connection with its
operations described in section 1, above, have a
close, intimate, and substantial relationship to trade,
traffic, 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 REMEI)DY
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:
CONCI.USIONS OF LAW
1. C & D Batteries, Division of Eltra Corpora-
tion (Chicago Branch), is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. DuPage County General Teamsters and
Chauffeurs Local Union No. 673, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time field representatives "B" em-
ployed by the Employer at its present location of
10 Eisenhower, Lombard, Illinois, but excluding
office clerical employees, sales persons, office man-
ager, service manager, branch manager, temporary
and casual employees, 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 September 28, 1981, 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 October 13, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive 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, C
& D Batteries, Division of Eltra Corporation (Chi-
cago Branch), Lombard, Illinois, 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
conditions of employment with Dul'age County
General Teamsters and Chauffeurs Local Union
No. 673, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time field representatives "B" em-
ployed by the Employer at its present location
of 10 Eisenhower, Lombard, Illinois, but ex-
cluding office clerical employees, sales per-
sons, office manager, service manager, branch
manager, temporary and casual employees,
guards and supervisors as defined in the Act.
(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) Upon request, furnish the above-named labor
organization with wage, fringe benefit, and em-
ployment data concerning bargaining unit employ-
ees.
(c) Post at its Lombard, Illinois, facility copies of
the attached notice marked "Appendix."4 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
noties to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(d) 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.
4 In the elven that this Order is enrfi rced hy a Judgmenl of a United
States C'ourt ll' Appeals, the words il the lotice reading "P'osted hb
Order of the National lahor Relations Board" shall read "Posted P1ursu
init to ai Judglnetlt of Ihe L 'ited States Court of Appeals E nforcing anl
)rdcr of the Niioiwlal I ahor Relatiuils IIoard
APPENDIX
Norilci To EMPI.OYI-ES
POSTI'D BY ORDI)R 01 IHI.
NATIONAI. LABOR R:I.ATIONS 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 DuPage County General Teamsters and
Chauffeurs Local Union No. 673, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the
employees in the bargaining unit described
below.
WEI WIL . 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 wiI.i., 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 full-time field representatives "B" em-
ployed by us at our present location of 10
Eisenhower, Lombard, Illinois, but exclud-
1376
C & D BATTERIES
ing office clerical employees, sales persons,
office manager, service manager, branch
manager, temporary and casual employees,
guards and supervisors as defined in the Act.
WE WI l., upon request, furnish the above-
named Union with wage, fringe benefit, and
employment data concerning bargaining unit
employees.
C & D BATTERIFS, DIVISION OF
ELTRA CORPORATION (CHICAGO
BRANCH)
1377