Eltra Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 1 (N.L.R.B. 1976)

PRESTOLITE WIRE DIVISION, ELTRA CORPORATION I
Prestolite Wire Division , Eltra Corporation and Inter-
national Union , United Automobile , Aerospace and
Agricultural Workers of America (UAW). Case 7-
CA-12848
June 24, 1976
DECISION AND ORDER
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 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:
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on March 17, 1976, by Inter-
national Union, United Automobile, Aerospace and
Agricultural Workers of America, (UAW), herein
called the Union, and duly served on Prestolite Wire
Division, Eltra Corporation, herein called the Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 7, issued a complaint and notice of hearing
on March 26, 1976, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 no-
tice 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 30, 1976,
following a Board election in Case 7-RC-13057, 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 February 13, 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 April 9, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 19, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 23, 1976, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
Official notice is taken of the record in the representation proceeding,
Case 7-RC-13057, 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 Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (CA 7 , 1968), Sec
9(d) of the NLRA, as amended
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent denies the valid-
ity of the certification and requests a hearing based
on certain of its election objections, the closeness of
the vote, and the denial of a hearing on its objections
which is alleged to be a violation of due process.
Counsel for the General Counsel contends in the
Motion for Summary Judgment that Respondent is
attempting to relitigate issues which were litigated in
the representation case. We agree.
Review of the record, including the representation
proceeding in Case 7-RC-13057, shows that, pur-
suant to a Stipulation for Certification Upon Con-
sent Election, an election was held on July 3, 1975,
which the Union won, 59 to 55, with no challenged
ballots. Respondent filed timely objections in sub-
stance alleging (a) that the Union had engaged in
improper conduct by (1) an election-day threat of
bodily violence toward employees who did not vote
for the Union; (2) misrepresentations regarding
monthly bonus payments; (3) coercion regarding the
signing of authorization cards; (4) compensation of
union organizers beyond expenses undisclosed to
employees; and (5) misrepresentations concerning
insurance fringe benefits negotiated by the Union at
another facility of the Respondent; and (b) that there
was improper conduct of the election by the Board
agent who allowed (1) employees to congregate
around the ballot box thus obscuring it from the view
of the agent and observers; (2) employees who were
union organizers to make excessive noise in the line
near the voting booth; and (3) an employee who had
voted to speak with a union observer in view of em-
ployees waiting to vote. After an investigation the
Regional Director issued his Report and Recommen-
dations on Objections on September 11, 1975, in
which he recommended that the Respondent's objec-
tions be overruled in their entirety and the Union
certified. With respect to union conduct he found
that (1) the alleged election-day threat was isolated;
(2) even if the statements about bonus statements
were misrepresentations, Respondent had presented
a detailed rebuttal; (3) the authorization card coer-
225 NLRB No. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cion was prepetition conduct; (4) the alleged com-
pensation of union organizers was not improper elec-
tioneering; and (5) the misrepresentation concerning
the negotiation of insurance fringe benefits by the
Union at another facility of the Respondent was
slight. With respect to the Board agent's conduct, he
found that the need for the agent and observers to
reposition themselves during the course of the voting
to observe the ballot box was not unusual and that
laboratory conditions were not impaired by the
amount and volume of conversation in the voting
line nor by the conversation between one employee
and the union observer. Respondent filed timely ex-
ceptions to the Regional Director's report and a brief
in support contending that the election should be set
aside in view of the closeness of the vote and the
objections relating to the election-day threat, the mis-
representations, and the Board agent's conduct of the
election. Alternatively Respondent requested a hear-
ing on those objections. On January 30, 1976, the
Board issued its Decision and Certification of Repre-
sentative in which, after considering the Regional
Director's report, the exceptions and brief, and the
entire record, it adopted the Regional Director's re-
port and certified the Union. The Board specifically
stated that, while it did not condone the noisy and
somewhat disruptive manner in which the election
was conducted, Respondent's exceptions relating
thereto raised no issue warranting reversal of the Re-
gional Director's findings and recommendations.
In this proceeding Respondent argues that the cer-
tification is void ab initlo for the reasons set forth in
its exceptions to the Board, including the closeness of
the election. It thus appears that Respondent is at-
tempting to relitigate issues raised and resolved in the
representation case. In addition, Respondent con-
tends that the certification is void ab initio because
the failure to grant a hearing on its objections was a
denial of due process. We find no merit in this con-
tention. In adopting the Regional Director's recom-
mendation that Respondent's objections be over-
ruled in their entirety, the Board necessarily found
that there were no substantial or material issues war-
ranting a hearing.' It is well established that parties
do not have an absolute right to a hearing and the
denial of a hearing where the objections raise no sub-
stantial or material issues does not constitute a denial
of due process.' We likewise find no merit in
Respondent's request for a hearing in this proceeding
as evidentiary hearings are not required in unfair la-
bor practice cases and summary judgment is appro-
priate where, as here, there are no properly litigable
issues of fact to be resolved 4
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.'
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
labor practice proceeding. 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, Prestolite Wire Division , Eltra Cor-
poration , a New York corporation , is engaged in the
manufacture of automotive wiring at its facility lo-
cated in Rose City , Michigan . During the calendar
year ending December 31, 1975, Respondent shipped
products manufactured at its Rose City, Michigan,
plant valued in excess of $50 ,000 to points located
outside the State of Michigan.
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.
11. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Workers of America, (UAW),
is a labor organization within the meaning of Section
2(5) of the Act.
2 Pointe Enterprises, Inc, 223 NLRB 822 (1976) ° Locust Industries, Inc, 221 NLRB 604 (1975), Janler Plastic Mold Corpo-
3 GTE Lenkurl, Incorporated, 218 NLRB 929 (1975), Heavenly Valley Ski ration, 191 NLRB 162 (1971)
Area, a California Corporation, and Heavenly Valley, a Partnership, 215 5 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162 (1941),
NLRB 734 (1974) Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c)
PRESTOLITE WIRE DIVISION, ELTRA CORPORATION 3
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:
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.
All production and maintenance employees
employed by the Employer at its facility located
at Rose City, Michigan; but excluding all office
clerical employees, plant clerical employees,
technical employees, professional employees,
confidential employees, foremen, assistant fore-
men, guards and supervisors as defined in the
Act.
2. The certification
On July 3, 1975, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector 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 January 30, 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 February 4, 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 13, 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 13, 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.
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 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Prestolite Wire Division , Eltra Corporation, is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Workers of America, (UAW),
is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees em-
ployed by the Employer at its facility located at Rose
City, Michigan ; but excluding all office clerical em-
ployees, plant clerical employees, technical employ-
ees, professional employees, confidential employees,
foremen , assistant foremen, guards and supervisors
as defined in the Act, constitute a unit appropriate
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 30, 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 13, 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Pres-
tolite Wire Division, Eltra Corporation, Rose City,
Michigan, 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 International Union,
United Automobile, Aerospace and Agricultural
Workers of America, (UAW), as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All production and maintenance employees
employed by the Employer at its facility located
at Rose City, Michigan; but excluding all office
clerical employees, plant clerical employees,
technical employees, professional employees,
confidential employees, foremen, assistant fore-
men, 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:
(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 Rose City, Michigan, facility, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 7, 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 no-
tices to employees are customarily posted. Reason-
able 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 Inter-
national Union, United Automobile, Aerospace
and Agricultural 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 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
PRESTOLITE WIRE DIVISION , ELTRA CORPORATION 5
reached , embody such understanding in a signed
agreement . The bargaining unit is:
All production and maintenance employees
employed by the Employer at its facility locat-
ed at Rose City, Michigan ; but excluding all
office clerical employees , plant clerical em-
ployees, technical employees, professional
employees, confidential employees, foremen,
assistant foremen, guards and supervisors as
defined in the Act.
PRESTOLITE WIRE DIVISION, ELTRA
CORPORATION