El Monte Tool and Die Casting

National Labor Relations Board - Board Decisions

Sep 22, 1977

232 N.L.R.B. 267 (N.L.R.B. 1977)

EL MONTE TOOL AND DIE CASTING
El Monte Tool and Die Casting, Inc. and Sheet Metal
Workers' International Association, Local Union
No. 170, AFL-CIO. Case 21-CA-15683
September 22, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on May 2, 1977, by Sheet
Metal Workers' International Association, Local
Union No. 170, AFL-CIO, herein called the Union,
and duly served on El Monte Tool and Die Casting,
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 21, issued a complaint
on May 6, 1977, 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
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 15,
1977, following a Board election in Case 21-RC-
14876, 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 April 26, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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 May 17, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On June 28, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 11, 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 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
Official notice is taken of the record in the representation proceeding,
Case 21-RC-14876, 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
232 NLRB No. 27
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 complaint and in its response to
the General Counsel's motion for Summary Judg-
ment, Respondent denies that the Union represents a
majority of its employees in an appropriate unit. It
also denies the validity of the Union's certification
on the grounds that the Union made improper
misrepresentations which interfered with the conduct
of the election. Moreover, it contends that the Board
erred in retroactively applying the standards enunci-
ated in Shopping Kart Food Market, Inc.,2 to the
conduct of the election rather than the then existing
Hollywood Ceramics Company, Inc.,3 election stan-
dards. Thus it seeks reconsideration of its objections
to the election in light of the Hollywood Ceramics
standards. Counsel for the General Counsel, on the
other hand, argues that there are no litigable issues
warranting a hearing because all issues concerning
the Union's certification in an appropriate unit have
been fully litigated and determined in the underlying
representation case. We agree with the General
Counsel.
A review of the record herein, including that in
representation Case 21-RC-14876, discloses that,
after a hearing, the Regional Director for Region 21
issued on December 23, 1976, a Decision and
Direction of Election in the unit found appropriate
which excluded, inter alia, eight leadmen whom he
found to be supervisors within the meaning of
Section 2(11) of the Act. Respondent timely filed a
request for review of the Regional Director's Deci-
sion, contending that the eight leadmen were not
supervisors and should be included in the unit. By
wire dated January 18, 1977, the Board denied the
Employer's request for review on the ground that it
raised no substantial issues warranting review.
Thereafter, in the election conducted on January 21,
1977, the Union prevailed by a vote of 43 to 35, with
3 ballots challenged. Following the election, Respon-
dent filed timely objections to the election alleging
that the Union made material misrepresentations
concerning Respondent's medical plan for employees
and in asserting that Respondent in the past made
reductions in wages. Respondent also alleged that the
Union implicitly promised that employees would
automatically receive wage increases if the Union
(C.A. 5. 196%9); Intertype Co. v. Penelo, 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.
2 228 NLRB 131 1(1977).
3 140 NLRB 221 (1962).
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
won the election, and that it improperly promised to
waive initiation fees for those employees who voted
for the Union. After an investigation, during which
both parties were afforded the opportunity to present
evidence, the Regional Director issued a Supplemen-
tal Decision and Certification of Representative on
March 15, 1977, overruling all of the objections4 and
certifying the Union.
Respondent filed a timely request for review of the
Regional Director's Supplemental Decision, alleging
that the Regional Director made clearly erroneous
factual findings departing from precedent, thus
raising a substantial question of law or policy. It
further contended that the Regional Director's
reliance on Hollywood Ceramics in support of his
conclusions concerning the alleged misrepresenta-
tions was misplaced and further argued that the
Board should either eliminate or modify the Holly-
wood Ceramics rule. By a wire dated April 27, 1977,
the Board denied Respondent's request for review on
the grounds that it raised no substantial issues
warranting review, relying on its recent decision in
Shopping Kart. Chairman Fanning, while adhering to
his dissent in Shopping Kart, nonetheless joined in
denying review on the ground that the conduct
alleged did not violate Hollywood Ceramics stan-
dards. 5
In the instant proceeding, Respondent is attempt-
ing once more to raise matters which were fully
litigated in the underlying representation case. This it
may not do.
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.6
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:
4 The Regional Director found that the alleged misrepresentations were
not objectionable under Hollywood Ceramics, supra, and that there was no
unlawful waiver of initiation fees under the Supreme Court's decision in
N.L.R.B, v. Savair Manufacturing Co., 414 U.S. 270(1973).
- Respondent's contention in its opposition to General Counsel's Motion
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation located in
El Monte, California, and is engaged in die casting
and in the production of metal products. Annually, it
sells and ships goods valued in excess of $50,000 to
customers located within the State of California, each
of which in turn annually sells and ships goods
valued in excess of $50,000 directly to customers
located outside the State of California.
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
Sheet Metal Workers' International Association,
Local Union No. 170, AFLCIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. 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 production and maintenance employees,
shipping and receiving employees, lead persons,
and truckdrivers employed by the Employer at its
facility located at 2425 North Tyler Avenue, El
Monte, California; excluding all office clerical
employees, guards, professional employees, fore-
persons, and supervisors as defined in the Act, as
amended.
2. The certification
On January 21, 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 21, 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 March 15, 1977, and the Union
for Summary Judgment that the Hollywood Ceramics, and not the Shopping
Karl, standard is applicable is without ment.
6 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(0f and 102.69(c).
268
EL MONTE TOOL AND DIE CASTING
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 April 22, 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. Commencing on
or about April 26, 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 exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
April 26, 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(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,
intimate, 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 com-
merce.
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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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. El Monte Tool and Die Casting, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers' International Associa-
tion, Local Union No. 170, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
shipping and receiving employees, lead persons,
and truckdrivers employed by the Employer at its
facility located at 2425 North Tyler Avenue, El
Monte, California; excluding all office clerical
employees, guards, professional employees, fore-
persons, and supervisors as defined in the Act, as
amended.
4. Since March 15, 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 April 26, 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 the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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(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,
269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
El Monte Tool and Die Casting, Inc., El Monte,
California, its officers, agents, successors, and as-
signs, 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 Sheet Metal Work-
ers' International Association, Local Union No. 170,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees,
shipping and receiving employees, lead persons,
and truckdrivers employed by the Employer at its
facility located at 2425 North Tyler Avenue, El
Monte, California; excluding all office clerical
employees, guards, professional employees, fore-
persons, and supervisors as defined in the Act, as
amended.
(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:
(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 2425 North Tyler Avenue, El Monte,
California, facility copies of the attached notice
marked "Appendix."7 Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by Respondent's represen-
tative, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
7 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 Sheet
Metal Workers' International Association, Local
Union No. 170, AFL-CIO, 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 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 production and maintenance employ-
ees, shipping and receiving employees, lead
persons, and truckdrivers employed by the
Employer at its facility located at 2425
North Tyler Avenue, El Monte, California;
excluding all office clerical employees,
guards, professional employees, forepersons,
and supervisors as defined in the Act, as
amended.
EL MONTE TOOL AND
DIE CASTING, INC.
270