Data Printer Corp

National Labor Relations Board - Board Decisions

Jun 11, 1976

224 N.L.R.B. 682 (N.L.R.B. 1976)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Data Printer Corp and Local 1499, International
Brotherhood of Electrical Workers, AFL-CIO.
Case 1-CA-11413
June 11, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on February 5, 1976, by Local
1499, International Brotherhood of Electrical Work-
ers, AFL-CIO, herein called the Union, and duly
served on Data Printer Corp, herein called the Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 1, issued a complaint and notice of hearing
on March 4, 1976, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Sections 8(a)(5) and (1) and 2(6) and (7)
of the National Labor Relations Act, as amended
Copies of the charge, complaint, and notice of hear-
ing before an Administrative Law Judge were duly
served on the parties to this proceeding
With respect to the unfair labor practices, the rec-
ord shows that on January 22, 1976, following a
Board election in Case 1-RC-13979 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 February 1, 1976, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so On
March 15, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint
On March 29, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment Subsequently, on April 12, 1976, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted Respondent thereafter filed a
response to Notice To Show Cause
'Official notice is taken of the record in the representation proceeding
Case 1-RC-13979 , 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
(CA 5, 1969), Intertype Co v Penello 269 F Supp 573 (D C Va , 1967)
Follett Corp 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968) Sec
9(d) of the NLRA, as amended
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 and opposition to
the motion for summary judgment, Respondent de-
nies the representative status of the Union based on
its election objections and contends that the Board's
denial of a hearing was a denial of due process and
that it is entitled to a hearing in this proceeding on
the issues raised by its objections and in its motion
for rehearing Counsel for the General Counsel ar-
gues in her motion for summary judgment that Re-
spondent does not raise litigable issues requiring a
hearing and that summary judgment is appropriate
We agree
Review of the record herein, including that of the
underlying representation proceeding in Case 1-RC-
13979, reveals that, upon a Stipulation for Certifica-
tion Upon Consent Election, an election was held on
September 26, 1975 The tally showed that the Union
won, with 72 votes cast for the Union, 70 against,
and no challenged ballots Respondent filed timely
objections and a request for a hearing thereon, alleg-
ing that the conduct of a free and fair election was
precluded by (1) a last-minute misleading union
handbill which characterized the wage scale and cer-
tain job grading practices as fraudulent, and (2)
Board failure to assist voters with language barriers
by furnishing language assistance or a bilingual no-
tice and ballot On October 31, 1975, the Acting Re-
gional Director issued his Report on Objections rec-
ommending that the objections be overruled, the
hearing request denied, and the Union certified
With respect to the first objection, the Acting Re-
gional Director found (1) that Respondent had am-
ple time to respond to the wage scale issue since the
Union had raised the issue of its existence earlier,
and (2) that the Union's characterizations of the
Respondent's wage scale and job grading practices
did not constitute such a substantial departure from
the truth as to warrant setting aside the election As
to the second objection, the Acting Regional Direc-
tor found (1) that at the stipulation conference both
Respondent and the Union had advised the Board
agent that there was no need for bilingual or multi-
lingual notices and ballots, (2) that at the meeting
prior to the election Respondent had objected to the
Union's request to add a union observer who spoke
Italian and Spanish, that, when the Board agent ad-
224 NLRB No 85
DATA PRINTER CORP
vised that he was conversant in those languages, the
issue was not further pursued, (3) that the Board
agent explained the ballot and its purpose to one vot-
er in Italian and to another in English whereupon
each indicated that he understood the ballot, (4) that
there were no void ballots, and (5) that Respondent
presented no evidence that any employee failed to
understand the ballot and its purpose Subsequently
Respondent filed exceptions to the report and a brief
in support, basically reiterating its objections, again
requesting a hearing, and arguing that the Board
should reexamine its approach to furnishing bilingual
notices and ballots in light of the 1975 amendments
to the Voting Rights Act of 1965 On January 22,
1976, the Board, with Chairman Murphy and Mem-
ber Penello each agreeing for separate reasons, issued
its Decision and Certification of Representative in
which, after reviewing the record in light of the ex-
ceptions and brief, the Board adopted the findings
and recommendations of the report and certified the
Union
On January 28, 1976, Respondent filed a motion
for rehearing, arguing, for the first time, that, prior to
the issuance of the report on objections, it was un-
aware that the Board agent had explained the ballot
in Italian to one voter and that, since the observers
were not fluent in Italian, the failure of the agent to
use a challenged ballot deprived Respondent of the
opportunity to establish whether the voter who cast
this potentially decisive ballot understood it On
March 17, 1976, the Board denied the motion as con-
taining nothing which the Board had not previously
considered It thus appears that Respondent is at-
tempting to relitigate in this unfair labor practice
proceeding issues considered and resolved in the un-
derlying representation case
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 2
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
2 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67 (f) and 102 69(c)
683
labor practice proceeding 3 We shall, accordingly,
grant the Motion for Summary Judgment
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material
herein, a Delaware corporation with its principal of-
fice and place of business at 660 Memorial Drive,
Cambridge, Massachusetts, where it is engaged in the
manufacture, sale, and distribution of data pro-
cessing equipment Respondent in the course and
conduct of its business causes, and continuously has
caused at all times herein mentioned, large quantities
of materials used by it in the manufacture of data
processing equipment to be purchased and transport-
ed in interstate commerce from and through States
other than the Commonwealth of Massachusetts,
and caused, and continuously has caused, substantial
quantities of data processing equipment to be sold
and transported from its Cambridge, Massachusetts,
location in interstate commerce to States other than
Massachusetts Respondent annually receives direct-
ly at its Cambridge, Massachusetts, location from
points outside the Commonwealth of Massachusetts
and annually ships directly from said location to
points outside the Commonwealth of Massachusetts
goods and materials valued in excess of $50,000
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 Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assertjuris-
diction herein
II THE LABOR ORGANIZATION INVOLVED
Local 1499, International Brotherhood of Electri-
cal Workers , AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act
3 In this proceeding Respondent asserts that the Board 's failure to grant
its hearing requests was a denial of due process and that it is entitled to a
hearing in this proceeding on the issues raised by its objections and in its
motion for rehearing By its adoption of the Acting Regional Director's
report including his denial of a hearing and its denial of the Respondents
motion for rehearing , the Board, in effect, found that there were no substan-
tial and material issues requiring a hearing It is well established that, absent
a prima facie showing of substantial and material issues , a party does not
have an absolute right to a hearing on objections and that where , as here
there are no properly litigable issues of fact to be resolved , a hearing is not
required in an unfair labor practice proceeding Federal Electric Corporation,
223 NLRB 161 (1976 ), Handy Hardware Wholesale, Inc, 222 NLRB 373
(1976)
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
1 The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act
All full-time and regular part-time production
and maintenance employees of the Employer lo-
cated at its 600 Memorial Drive, Cambridge,
Massachusetts, plant, including lead operators,
shipping and receiving employees, inspectors,
andjanitors, excluding office clerical employees,
professional employees, guards and supervisors
as defined in the Act
2 The certification
On September 26, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 1, 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 January 22, 1976, 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 29, 1976, 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 February 1, 1976, 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 February 1, 1976, 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 (CA 10, 1965)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Data Printer Corp is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act
2 Local 1499, International Brotherhood of Elec-
trical Workers , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 All full-time and regular part-time production
and maintenance employees of the Employer located
at its 600 Memorial Drive, Cambridge , Massachu-
setts, plant, including lead operators, shipping and
receiving employees , inspectors , and janitors , but ex-
cluding office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act,
DATA PRINTER CORP 685
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act
4 Since January 22, 1976, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act
5 By refusing on or about February 1, 1976, 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
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
(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 Cambridge, Massachusetts, facility
copies of the attached notice marked "Appendix " 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 1, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
4In 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 "
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,
Data Printer Corp, Cambridge, Massachusetts, 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 Local 1499, Internation-
al Brotherhood of Electrical Workers, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit
All full-time and regular part-time production
and maintenance employees of the Employer lo-
cated at its 600 Memorial Drive, Cambridge,
Massachusetts, plant, including lead operators,
shipping and receiving employees, inspectors,
and janitors, but excluding office clerical em-
ployees, professional employees, guards and su-
pervisors 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
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 Local
1499, International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time production tors, but excluding office clerical employees,
maintenance employees of the Employer at its professional employees, guards and supervi-
600 Memorial Drive, Cambridge, Massachu- sors as defined in the Act
setts, plant, including lead operators, shipping
and receiving employees, inspectors, and rani- DATA PRINTER CORP