Cerlo Mfg. Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1978

234 N.L.R.B. 397 (N.L.R.B. 1978)

CERLO MANUFACTURING CORPORATION
Cerlo Manufacturing Corporation and Warehouse,
Mall Order, Office, Technical and Professional
Employees Union Local No. 743, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 13-CA-16562
January 24, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on June 13, 1977, by Ware-
house, Mail Order, Office, Technical and Profession-
al Employees Union Local No. 743, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Cerlo Manu-
facturing Corporation, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13,
issued a complaint on July 12, 1977, which was
amended on August 22, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 before an Adminis-
trative 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 May 20, 1977,
following a Board election in Case 13-RC-14151, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about June 9, 1977, and at all times
thereafter, Respondent has refused, and continues 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 July 25, 1977, Respondent filed its answer to the
complaint and on September 2, 1977, its answer to
the amended complaint, admitting in part, and
denying in part, the allegations in the complaint.
In its answers to the complaints, Respondent sets
forth an affirmative defense in which it alleges that
the first election conducted on October 6, 1976, was
I Official notice is taken of the record in the representation proceeding,
Case 13-RC-14151, 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., 1967);
Follett Cor., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
234 NLRB No. 61
erroneously set aside by the Board, and therefore, the
second election conducted on May 12, 1977, was
"without legal effect."
On September 21, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 4,
1977, the Board issued an order transferring the
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 Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 amended complaint and
response to the Notice To Show Cause, Respondent
admits its refusal to bargain, but denies that it
thereby violated Section 8(aX5) and (1) of the Act.
Specifically, Respondent attacks the Union's certifi-
cation on the basis that in the representation election
conducted on October 6, 1976, the Union failed to
gain a majority of the votes cast in a unit of
Respondent's employees appropriate for collective
bargaining, that said election was erroneously set
aside by the Board, and that, therefore, the second
election held on May 12, 1977, was without legal
effect.
Counsel for the General Counsel argues that the
affirmative defense set forth in Respondent's answer
constitutes an attempt to relitigate issues that were
raised and determined by the Board in the underly-
ing representation case.
A review of the record herein, including the record
in Case 13-RC-14151, shows that on September 2,
1976, the Regional Director for Region 13 approved
a Stipulation for Certification Upon Consent Elec-
tion, which had been executed by Respondent and
the Union on the same date. 2 On October 6, 1976, an
election by secret ballot was conducted under the
direction and supervision of the Regional Director
among the employees in the unit set forth in the
Stipulation for Certification Upon Consent Election
described above. The tally of ballots issued after the
election shows that of approximately 21 eligible
2 The stipulated unit is: Al full-time and regular part-time warehouse,
production, and maintenance employees employed at the Employer's
facility located at Ith Street and Commerce Avenue, Lockport, Illinois
60441, but excluding all office clerical employees and salesmen and all
guards and supervisors, including leadmen, as defined in the Act.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voters 21 cast ballots, of which 8 were cast for, and 9
were cast against, the Union. There were four
challenged ballots, a number sufficient to affect the
results of the election.
On October 13, 1976, timely objections to conduct
affecting the results of the election were filed by the
Union and, on December 3, 1976, the Regional
Director issued a Report on Challenges and Objec-
tions, in which he recommended, inter alia, that one
of the Union's aforesaid objections be sustained and
that a second election be directed by the Board. In
the alternative, the Regional Director recommended,
inter alia, that a hearing be directed with regard to six
other objections filed by the Union. On or about
December 16, 1976, Respondent filed with the Board
exceptions to the Regional Director's Report on
Challenges and Objections and a brief in support
thereof. Respondent excepted, inter alia, to the
Regional Director's determination that Objection 9
be sustained. Objection 9 read as follows:
9. Prior to the election, the employer did not
post any National Labor Relations-Board notices,
announcing the filing of the petition, name of
petitioner, date, time and place of the election,
thereby depriving employees of an opportunity to
be informed of a forthcoming election.
On or about December 23, 1976, the Union filed
with the Board its reply to Employer's exceptions to
the Regional Director's Report on Challenges and
Objections. Thereafter, on February 9, 1977, Respon-
dent filed a motion for leave to file a reply brief and a
reply brief in support of Employer's exceptions. On
or about February 11, 1977, the Union filed a letter
with the Board in which it requested that the Board
deny Respondent's aforesaid motion for leave to file
a reply brief.
In a letter dated February 14, 1977, the Board, by
its Deputy Executive Secretary, denied Respondent's
motion for leave to file a reply brief. On April 7,
1977, the Board issued a Decision and Direction of
Second Election (not reported in volumes of Board
decisions) in which it adopted, inter alia, the Region-
al Director's recommendation to sustain the Union's
Objection 9. On April 20, 1977, the Regional Direc-
tor issued a Notice of Second Election and, pursuant
thereto, a second election was conducted on May 12,
1977, among the employees in the unit described
above. At the conclusion of the second election, a
tally of ballots was prepared and served on the
parties which showed that of approximately 21
eligible voters 21 cast ballots, of which 15 were cast
for, and 6 against, the Union. Thereafter, on May 20,
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
1977, the Regional Director issued a Certification of
Representative, certifying the Union as the exclusive
bargaining agent of the employees in the aforemen-
tioned stipulated unit.
By letter to Respondent, dated June 1, 1977, the
Union requested that Respondent bargain collective-
ly with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment of employees in the unit. By separate
letter of the same date, the Union also requested that
Respondent furnish it with the names, rates of pay,
job classifications, hiring dates, and present benefits
of all employees in the unit. By letter dated June 9,
1977, Respondent stated that it refused to bargain
collectively with, or provide the requested informa-
tion to, the Union. Respondent based its refusal on
the ground that the Union "failed to achieve certifi-
cation as the collective bargaining representative
pursuant to the representation election of October 6,
1976, which election subsequently was erroneously
set aside by the. . . Board."
Respondent contends that its failure to post the
notice of election prior to the first election was due to
the Board agent's failure to provide it with copies of
such notice and, in any event, did not interfere with
laboratory conditions. This contention was fully
considered and disposed of by the Board in the
underlying representation proceeding. Thus, in its
Decision and Direction of Second Election, the
Board adopted the Regional Director's report recom-
mending that the Union's Objection 9 be sustained.
It thus appears that Respondent is attempting to
raise herein issues which were raised and determined
in the underlying representation case.
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding. 3
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
398
CERLO MANUFACTURING CORPORATION
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in
the manufacture of copper wire. Respondent annual-
ly purchases and receives goods and materials valued
in excess of $50,000 directly from suppliers located
outside the State of Illinois. It also annually derives
gross revenues in excess of $900,000.
We find, on the basis of the foregoing, that
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
Warehouse, Mail Order, Office, Technical and
Professional Employees Union No. 743, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5)
of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time warehouse,
production, and maintenance employees em-
ployed at the Employer's facility located at 11th
Street and Commerce Avenue, Lockport, Illinois
60441, but excluding all office clerical employees
and salesmen and all guards and supervisors,
including leadmen, as defined in the Act.
2. The certification
On May 12, 1977, 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 bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 20, 1977, 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 June 1, 1977, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit and to furnish
certain information pertaining to the wages and
terms and conditions of employment of the employ-
ees in said unit. Commencing on or about June 9,
1977, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit or to provide it with the
requested information.
Accordingly, we find that Respondent has, since
June 9, 1977, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX5) and (1) of the
Act.
We further find that Respondent has, since June 9,
1977, and at all times thereafter, refused to furnish
information necessary and relevant to the Union in
the performance of its bargaining obligation, includ-
ing such information as was requested in the Union's
letter of June 1, 1977, and that, by such refusal,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(aX5)
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,
intimate, and substantial relationship to trade, traff-
ic, 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
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.
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also having found that Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing to
furnish the Union with certain information, we shall
order that it cease and desist therefrom and, upon
request, furnish the Union such information as is
necessary and relevant for the proper performance of
its bargaining obligation, including such information
as was requested in the Union's letter of June 1, 1977.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett 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
I. Cerlo Manufacturing Corporation is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Warehouse, Mail Order, Office, Technical and
Professional Employees Union Local No. 743, affili-
ated with International 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 and regular part-time warehouse,
production, and maintenance employees employed
at the Employer's facility located at I th Street and
Commerce Avenue, Lockport, Illinois 60441, but
excluding all office clerical employees and salesmen
and all guards and supervisors, including leadmen, 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 May 20, 1977, 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 June 9, 1977, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By refusing on or about June 9, 1977, and at all
times thereafter, to furnish information, necessary
and relevant to the above-named labor organization
in the performance of its bargaining obligation,
including such information as was requested in the
Union's letter of June 1, 1977, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX5) of the Act.
7. By the aforesaid refusals to bargain and to
provide information necessary and relevant to the
Union in the performance of its bargaining obliga-
tion, Respondent 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 engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX I) of the
Act.
8. 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
Relations Board hereby orders that the Respondent,
Cerlo Manufacturing Corporation, Lockport, Illi-
nois, 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 Warehouse, Mail
Order, Office, Technical and Professional Employees
Union Local No. 743, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time warehouse,
production, and maintenance employees em-
ployed at the Employer's facility located at 11th
Street and Commerce Avenue, Lockport, Illinois
60441, but excluding all office clerical employees
and salesmen and all guards and supervisors,
including leadmen, as defined in the Act.
(b) Refusing to furnish information necessary and
relevant to the Union in the performance of its
bargaining obligation, including such information as
was requested in the Union's letter of June 1, 1977.
400
CERLO MANUFACTURING CORPORATION
(c) 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) Upon request, furnish information necessary
and relevant to the Union in the performance of its
bargaining obligation, including such information as
was requested in the Union's letter of June 1, 1977.
(c) Post at its facility located at 11th Street and
Commerce Avenue, Lockport, Illinois, 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 Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure 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 herewith.
4 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 Ware-
house, Mail Order, Office, Technical and Profes-
sional Employees Union Local No. 743, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of our
employees in the bargaining unit described below.
WE WILL NOT refuse to furnish the above-
named Union with information necessary and
relevant in the performance of its bargaining
obligation, including such information as was
requested in the Union's letter of June 1, 1977.
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 representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time ware-
house, production, and maintenance em-
ployees employed at the Employer's facility
located at I th Street and Commerce Ave-
nue, Lockport, Illinois 60441, but excluding
all office clerical employees and salesmen
and guards and supervisors, including lead-
men, as defined in the Act.
WE WILL, upon request, furnish the above-
named Union with information necessary and
relevant in the performance of its bargaining
obligation, including such information as was
requested in the Union's letter of June 1, 1977.
CERLO MANUFACTURING
CORPORATION
401