Electra-Food Machinery, Inc.

National Labor Relations Board - Board Decisions

May 2, 1979

241 N.L.R.B. 1232 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electra-Food Machinery, Inc. and Sheet Metal Work-
ers' International Association, Local No. 75, AFL-
CIO. Case 21-CA-17128
May 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
Upon a charge filed on October 2, 1978, by Sheet
Metal Workers' International Association, Local No.
75, AFL-CIO, herein called the Union, and duly
served on Electra-Food Machinery, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 21, issued a complaint on November
21, 1978, against Respondent, alleging that Respon-
dent 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, 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 com-
plaint alleges, in substance that on January 4, 1978,
following a Board election in Case 21-RC-15320 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate.' Thereafter, on Sep-
tember 6, 1978, Respondent and the Union reached
oral agreement on all terms of a collective-bargaining
agreement covering the wages, hours, and working
conditions of the employees in said unit. Commenc-
ing on or about September 6, 1978, the Union re-
quested, and has continued to request, that Respon-
dent execute the above collective-bargaining
agreement, but as of September 21, 1978, Respondent
has refused, and continues to date to refuse, to do so.
On November 28, 1978, Respondent filed its an-
swer to the complaint, admitting in part, and denying
in part, the allegations in the complaint. It alleged
that it is not legally obligated to execute the negoti-
ated agreement because the agreement contains an
open-shop clause which the Union had no authority
to accept because of a prohibition against such
clauses in its constitution.
I Official notice is taken of the record in the representation proceeding.
Case 21 RC 15320. as the term "record" is defined in Sees. 102.68 and
102.6 9(:,) of the Board's Rules and Regulations. Series 8. as amended. See
LTV Electro*sem.r, Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968): Glden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th (ir. 1969): Interype C,,. v. Pene/lo. 269 F.Supp. 573 (D.C.Va.. 1967);
Fo/lerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA. as amended.
Subsequently, on January 12, 1979, the Acting Re-
gional Director for Region 21 issued an Order post-
poning hearing indefinitely. Thereafter, on January
23, 1979, counsel for the General Counsel filed di-
rectly with the Board a Motion for Summary Judg-
ment. Subsequently, on January 31, 1979, 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. Thereafter, on February 5, 1979, Respon-
dent filed an opposition to the Motion for Summary
Judgment, and on February 8, 1979, the Charging
Party filed a brief in support of the General Counsel's
Motion for Summary Judgment.
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 in its opposition
to the Motion for Summary Judgment, Respondent,
with the one exception discussed below, does not con-
trovert the factual allegations concerning the matters
set forth above; therefore, these allegations of the
complaint will be deemed admitted and found to be
true.2 This exception involves Respondent's denial
that a complete oral agreement was reached, based
on the fact that there was no meeting of the minds
between the parties on the issue of union security.
Respondent argues that on the basis of its interpre-
tation of the Union's constitution the Union was pre-
cluded from accepting Respondent's final contract of-
fer which included an open-shop provisions
Respondent further claims that if it had been aware
of the prohibition against such a provision it would
not "necessarily" have made such an offer to the
Union. Thc'efore, Respondent claims no valid oral
agreement was reached; thus, no duty to execute that
agreement has arisen, and no violation of Section
8(a)(5) and (I) of the Act has occurred through its
2Sec. 102.20 of the Board's Rules and Regulations, Series 8. as amended.
'The provision in the Union's constitution cited by Respondent as limit-
ing the Union's authority to contract regarding the issue of union security
reads as follows:
Section I Union Employer
Sec. I I. No shop. plant, facility or subdivision thereof shall be consid-
ered "Union" u '.s t' employer is a party to a collective bargaining
agreement with this Association or one of its affiliated local unions
which provides that all employees in the collective bargaining unit shall
become and remain members of this Association except that, in those
states in which a union shop agreement is contrary to law, the require-
ments of this Section will be satisfied if all employees within the unit
have voluntarily become and remain members of this Association.
241 NLRB No, 194
1232
ELECTRA-FOOD MACHINERY
refusal to memorialize and sign that agreement. We
find no merit in this contention.
Contrary to Respondent and in agreement with the
General Counsel, we find that Respondent acknowl-
edges that the parties did reach oral agreement on the
complete terms of the contract. Respondent admits
that it made a final offer which included an open-
shop provision, and that the Union accepted this of-
fer. It is well settled that where parties have reached
an agreement as to the terms and conditions of em-
ployment, the refusal by one of the parties to reduce
to writing and to sign said agreement constitutes a
violation of the Act.4
Further, in view of the Board's holdings that inter-
nal union matters cannot affect the validity of collec-
tive-bargaining agreements, Respondent's argument
that the Union's constitution voids its offer and the
Union's acceptance thereof, and hence eliminates its
duty to execute the oral agreement, has no merit.5
Accordingly, based on the discussion set out above,
we find that by refusing to execute the oral agreement
of September 6, 1978, Respondent has refused to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
Further, Respondent requests that the Regional
Director for Region 21 be directed to reinstate the
postponed hearing for the taking of evidence on the
factual issues allegedly remaining to be determined
herein. The Board was held, with judicial approval,
that evidentiary hearings are not required in unfair
labor practice cases and summary judgment is appro-
priate where, as here, there are no substantial or ma-
terial facts to be determined. 6 Accordingly, we grant
the General Counsel's Motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF I-ACt
I. TIE BUSINESS OF RESPONDENT
Respondent. a California corporation. is engaged
in the manufacture of food processing equipment and
operates facilities located in El Monte. California.
I H. J Hein (mpanv v. L. R. B., 311 U.S. 514 (1941 ): K Mart Corpora-
tion. 238 NLRB No. 166 (19781: Maurt ' Fluorescent Appliance Senrice.
226 NIRB 1290 (1976).
'See, e.g.. 4M d& Oldsmohile, In(., 156 NLRB 903 (1966); Houlhens
3UarAet of Eli:abeihtoin. Inc., 155 NLRB 729 (1965).
In addition. while we are not relying on our interpretation of the constitu-
tional provision In question to reach our decision herein, an examination of
the pertinent clause docs not persuade us that Respondent's interpretation
thereof is correct. Moreover. the Board and the courts have held that it is for
a union and not fir a company or others to interpret a union's constitution
Such interpretations have been held to be generally binding if they are fair
and reasonable. See North Country otor. Ltd. 146 NLRB 671. 674(1964):
'e.rtal . Hiofa. 451 F 2d 706. 709 (6th Cir. 1971).
6 Hand, HIlrdlorI W'holerle Inc. 222 NlRB 373 (1976). and cases cited
therein.
During the past year, a representative period. Re-
spondent sold and shipped goods and products val-
ued in excess of $50,000 directly to customers located
outside the State of California.
We find, on the basis of the foregoing, that Respon-
dent 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. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association,
Local 75, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. 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,
installers, shipping and receiving employees,
warehouse employees and truck drivers of Elec-
tra-Food Machinery, Inc. located at 3700 Pine
Avenue, El Monte, California, 3704 Pine Ave-
nue, El Monte, California, 11312 Orchard Street,
El Monte, California, 11309 Orchard Street, El
Monte, California and 11307 Orchard Street, El
Monte, California; excluding all engineers and
draftsmen, expediters, purchasing agents, assist-
ant purchasing agents, sales personnel, office
clericals, professional employees, guards, watch-
men and supervisors as defined in the Act.
2. The certification
On December 23, 1977, 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 21, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on January 4, 1978, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.'
7 In its answer Respondent denies the validity of the certification based on
the fact that a majority of the bargaining unit did not designate the Union as
their representative. Subsequently, in its opposition to the Motion lor Sum-
mary Judgment. Respondent concedes that it is well settled that a respon-
dent is not entitled to relitigate matters. such as this one. which were or could
have been litigated in the prior representation proceeding. See Pittsburgh
(Continued)
1233
I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's Refisal
Commencing on or about September 6, 1978, and
at all times thereafter, the Union has requested Re-
spondent to execute a written collective-bargaining
agreement embodying the terms of the collective-bar-
gaining agreement orally agreed to by the parties on
that date. Commencing on or about September 21,
1978, Respondent refused and has continued to refuse
to execute said agreement.
Accordingly, we find that by its refusal to execute
said agreement Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. TI EFFECT ()F IE UNFAIR LABOR PRACTI(ES
UPON (CO()MMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. 'IHE REMEDY
Having found that Respondent unlawfully refused
on and after September 21, 1978, to execute the
agreement reached on September 6, 1978, in violation
of Section 8(a)(5) and (I) of the Act, we shall order
that it cease and desist therefrom, and, upon request,
execute a written collective-bargaining agreement
embodying the oral agreement reached by the parties
on September 6, 1978, as of September 21, 1978, and
give retroactive effect to the agreement from the Sep-
tember 21. 1978, effective date and make the employ-
ees whole for any' losses, if any, they may have suf-
fered as a result of the failure to execute the
agreement, plus interest accrued and paid in the man-
ner prescribed in F. W. Woolworth Compan, 90
NLRB 289 (1950), and FHorida Steel Corporation, 231
NLRB 651 (1977).8
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CO()N(CI.lSIONS OF L.AW
I. Electra-Food Machinery, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
Pluat' Glls (' v. NI.. R , 313 U.S. 146, 162 (1941). Rules and Regulations
of the Board. Secs 102 67(f) and 1026 9 (c) Accordingly, in view of Respon-
dent's psition. and in the absence of any newly discovered or previously
unavailable evidence or any special circumstances requiring reexamination
herein, we find that Respondent has not raised an issue which is properly
litigable in this unfair labor practice proceeding
ISee. generally. Ii Plunhmbing and Illing (o., 138 NI.RB 716 (1962).
2. Sheet Metal Workers' International Association,
Local No. 75, AFL CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees, in-
stallers, shipping and receiving employees, warehouse
employees, and truckdrivers of Electra-Food Machin-
ery, Inc., located at 3700 Pine Avenue; 3704 Pine
Avenue; 11312 Orchard Street; 11309 Orchard
Street: and 11307 Orchard Street, El Monte, Califor-
nia: excluding all engineers and draftsmen, expedit-
ers, purchasing agents, assistant purchasing agents,
sales personnel, office clericals, professional employ-
ees, guards, watchmen, 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 January 4, 1978, 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 September 21, 1978,
and at all times thereafter, to execute a written collec-
tive-bargaining agreement embodying the oral agree-
ment reached by the parties on September 6, 1978,
covering the employees in the above unit, Respon-
dent 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 conduct described in paragraph
5. above, Respondent has interfered with, restrained,
and coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights guar-
anteed 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 Rela-
tions Board hereby orders that the Respondent, Elec-
tra-Food Machinery, Inc., El Monte, California. its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to execute the collective-bargaining
agreement covering wages, hours, and working condi-
tions of the unit employees, which it orally agreed to
on September 6, 1978, and which it refused to execute
on September 21, 1978, with Sheet Metal Workers'
International Union. L.ocal 75. AFL CIO, as the ex-
1234
ELECTRA-FOOD MACHINERY
clusive bargaining representative of its employees in
the following appropriate unit:
All production and maintenance employees,
installers, shipping and receiving employees,
warehouse employees and truck drivers of Elec-
tra-Food Machinery, Inc. located at 3700 Pine
Avenue; 3704 Pine Avenue: 11312 Orchard
Street: 11309 Orchard Street: and 11307 Or-
chard Street, El Monte, California; excluding all
engineers and draftsmen. expediters, purchasing
agents, assistant purchasing agents, sales person-
nel, office clericals, professional employees,
guards, watchmen 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:
(a) Upon request, execute the collective-bargaining
agreement described in paragraph (a), above, and
give retroactive effect to it from the September 21.
1978, effective date and make whole employees for
any losses suffered as a result of the failure to execute
it in the manner set forth in the section of this deci-
sion entitled "The Remedy."
(b) Post at its El Monte, California, facilities copies
of the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional
Director for Region 21, 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 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.
I In the event that this Order is enforced by a Judgment of a Unitcd States
court of appeals. the words in the notice reading "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order o the National
Labor Relations Board."
(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.
APPEN D)IX
No rl(E To EMPI.OYTIis
Pos lEI) BY ORDF.R OF liili;
NAIIONAI. LABOR RI.AII()NS BOARI)
An Agency of the United States Government
WE WII. NOT refuse to execute the collective-
bargaining agreement covering wages, hours,
and working conditions of the unit employees,
which we orally agreed to on September 6, 1978,
and which we refused to execute on September
21, 1978, with Sheet Metal Workers' Interna-
tional Association, Local No. 75, AFL-CIO,
covering the following appropriate unit:
All production and maintenance employees,
installers, shipping and receiving employees,
warehouse employees and truck drivers of
Electra-Food Machinery, Inc. located at 3700
Pine Avenue; 3704 Pine Avenue: 11312 Or-
chard Street; 11309 Orchard Street; and 11307
Orchard Street. El Monte, California; exclud-
ing all engineers and draftsmen, expediters,
purchasing agents, assistant purchasing
agents, sales personnel, office clericals, profes-
sional employees, guards, watchmen and su-
pervisors as defined in the Act.
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 XVILL, upon request, execute the collective-
bargaining agreement described above as of Sep-
tember 21, 1978, and give retroactive effect to the
agreement from that effective date.
WE WILL make whole any losses our employ-
ees may have suffered from our refusal to sign
the said collective-bargaining agreement. plus in-
terest.
EI.E(CIRA-FooD MA(ICHINEIRY. IN('.
123S5