Detroit Plastic Molding Co.

National Labor Relations Board - Board Decisions

Mar 23, 1977

228 N.L.R.B. 1030 (N.L.R.B. 1977)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Detroit Plastic Molding Co. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case 7-
CA-13556
March 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on November 30, 1976, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
Detroit Plastic Molding Co., herein called the Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
7, issued a complaint on December 13, 1976, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing 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 were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 6, 1976,
following a Board election in Case 7-RC-11911 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 July 16, 1976, 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 December 22, 1976, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On January 7, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 27,
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 Summary
Judgment should not be granted. Respondent there-
after 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
Official notice is taken of the record in the representation proceeding,
Case 7-RC-11911, 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 Electrosystenss, Inc., 166 NLRB 938 (1%7), enfd . 388 F .2d 683 (C.A. 4,
1%8); Golden Age Beverage Co., 167 NLRB 151 (1%7), enfd . 415 F.2d 26
228 NLRB No. 113
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, the Respondent admits all of the
factual allegations of the complaint except those
relating to the appropriateness and scope of the
collective-bargaining unit, which it denies. In its
response to Notice To Show Cause, the Respondent
contends that the Regional Director departed from
Board precedent in the representation proceeding,
Case 7-RC-11911, when he determined that an
overall unit comprised of the Respondent's two
separate plants was an appropriate unit for purposes
of collective bargaining. The Respondent contends
that only separate plant bargaining units are appro-
priate.
The Respondent filed a request for review of the
Regional Director's Decision and Direction of Elec-
tion, which issued on October 24, 1973, contesting the
appropriateness of the unit. The Board denied such
request on November 20, 1973, stating that it raised
no substantial issues warranting review. Consequent-
ly, in support of the Motion for Summary Judgment,
the General Counsel argues and the Respondent
admits that the Respondent does not raise any issues
not previously litigated.
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.2
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the 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 the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding.
In its response to the Notice To Show Cause,
Respondent contends that the Board's rule of refus-
ing to consider issues raised in a proceeding alleging a
violation of Section 8(a)(5) which were or could have
been raised in a prior representation proceeding, and
(C.A. 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.
2 See Pittsburgh Plate Glass Co v. N.LRB., 313 U.S. 146, 162 ( 1941);
Rules and Regulations of the Board, Secs. 102.67(t) and 102 .69(c).
DETROIT PLASTIC MOLDING CO.
Section 102.67(f) of the Board's Rules and Regula-
tions, which provides that denial of a request for
review shall preclude relitigating any issues raised in
any related subsequent unfair labor practice proceed-
ing, is contrary to Section 5 of the Administrative
Procedure Act. Respondent contends that, under that
Act, it is now entitled to a hearing conducted by an
Administrative Law Judge. However, the Adminis-
trative Procedure Act does not entitle the Respon-
dent to an evidentiary hearing as a matter of statutory
right in an unfair labor practice case where, as here,
there are no substantial or material issues of fact for
determination. The Board, with judicial approval, has
so held; 3 and in such cases, summary judgment is
appropriate. We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Michigan corporation, is engaged in
the manufacture, sale, and distribution of plastic and
related products at East Detroit, Michigan, and
Roseville, Michigan. During the past calendar year,
which period is representative of its operations during
all times material hereto, Respondent purchased and
caused to be transported and delivered at its East
Detroit and Roseville plants directly from points
located outside the State of Michigan certain goods
and materials valued in excess of $50,000, and
Respondent sold and distributed at its East Detroit
and Roseville plants directly to points outside the
State of Michigan certain of its products valued in
excess of $50,000.
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
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
1031
The following employees of the Respondent consti-
tute 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 including shipping and
receiving employees and truck drivers employed
by the Employer at its plants located at 18125 Ten
Mile Road, East Detroit, Michigan, and 15201
Eleven Mile Road, Roseville, Michigan; but
excluding all professional employees, office cleri-
cal employees, guards and supervisors as defined
in the Act.
2. The certification
On February 26, 1975, 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 7 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 July 6, 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 July 9, 1976, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about July 16, 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 representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since July 16, 1976, 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(a)(5) and (1) of the
Act.
3 Locust Industries, Inc., 221 NLRB 604 (1975), Reeves-Bowman, Division
of Cyclops Corporation, 194 NLRB 155 (1971 ); Crest Leather Manufacturing
Company, 167 NLRB 1085 ( 1967), and cases cited therein at 1086, fn. 1.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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 obstructing com-
merce 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.
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 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);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1%5).
The Board, upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Detroit Plastic Molding Co. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), 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 including shipping and
receiving employees and truck drivers employed by
the Employer at its plants located at 18125 Ten Mile
Road, East Detroit, Michigan, and 15201 Eleven
Mile Road, Roseville, Michigan; but excluding all
professional employees, office clerical employees,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since July 6, 1976, 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 July 16, 1976, 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 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
meaning 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that, the Respondent,
Detroit Plastic Moldilig Co., East Detroit, Michigan,
and Roseville, Michigan, its officers, agents , succes-
sors, and assigns, shallt
1. Cease and desist; from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees including shipping and
receiving employees and truck drivers employed
by the Employer at its plants located at 18125 Ten
Mile Road, East Detroit, Michigan, and 15201
Eleven Mile Road, Roseville, Michigan; but
excluding all professional employees, office cleri-
cal employees, guards and supervisors 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:
DETROIT PLASTIC MOLDING CO. 1033
(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 plants in East Detroit and Roseville,
Michigan, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms provid-
ed by the Regional Director for Region 7, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, 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
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join , or help unions
To act together for collective bargaining
or other mutual aid or protection
To bargain collectively through represen-
tatives of their own choosing
To refuse to do any or all of these things.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), as the exclusive representative of the
employees in the bargaining unit described 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 representative 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 agreement. The bar-
gaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees including
shipping and receiving employees and truck
drivers employed by the Employer at its
plants located at 18125 Ten Mile Road, East
Detroit, Michigan, and 15201 Eleven Mile
Road, Roseville, Michigan; but excluding all
professional employees, office clerical em-
ployees, guards and supervisors as defined in
the Act.
DETROIT PLASTIC
MOLDING CO.