Facet Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jan 8, 1981

253 N.L.R.B. 1127 (N.L.R.B. 1981)

FACET ENTERPRISES, INC.
Facet Enterprises, Inc., Motor Components Division
and International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW). Case 3-CA-9846
January 8, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on June 13, 1980, by Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served
on Facet Enterprises, Inc., Motor Components Di-
vision, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 3, issued a com-
plaint on July 10, 1980, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (I) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 April 28,
1980, following a Board election in Case 3-RC-
7606,' the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about May 13, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On July 25, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On September 4, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment.2 Subsequently, on September
Official notice is taken of the record in the representation proceed-
ing, Case 3-RC-7606, as the term "record" is defined in Sees. 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 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended
2 In his Motion for Summary Judgment, the General Counsel moved
to amend the complaint to (I) conform the allegations with respect to ju-
risdiction to the facts as set forth in Respondent's answer and (2) to cor-
rect the date of the election. In the absence of any objection from Re-
spondent, the General Counsel's motion to so amend the complaint is
granted
253 NLRB No. 152
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed an opposition to the General Coun-
sel'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 Respondent
admits its refusal to bargain, but denies that it
thereby violated Section 8(a)(5) and (1) of the Act.
Specifically Respondent attacks the Union's certifi-
cation on the basis that, in the underlying represen-
tation proceeding, the Board erred in concluding
that the buyer, buyer associate, accounting asso-
ciate, and accounting specialist classification were
nontechnical positions, and by excluding employees
holding those positions from the bargaining unit of
technical employees as defined in this case.3 Fur-
ther, Respondent contends that the Board should
have sustained the challenges to the ballots of em-
ployees Howard Day, Edward Huddelson, Philip
K. Humphrey, and Gregory Stattine; and that these
ballots are sufficient to affect the outcome of the
election. In its response to the show-cause order,
Respondent reiterates these contentions, and fur-
ther contends that the Board erred in refusing to
permit the four employees named above to inter-
vene and file exceptions to the Regional Director's
Report on Challenges.
Counsel for the General Counsel argues that Re-
spondent is attempting to relitigate the identical
issues that were raised and determined by the
Board in the underlying representation case. We
agree.
A review of the record herein, including the
record in Case 3-RC-7606 shows the following:
On November 16, 1979, the Acting Regional Di-
rector for Region 3 issued a Decision and Direc-
tion of Election. On November 28, 1979, Respond-
ent filed a request for review and a motion to am-
plify the record in which it contended, inter alia,
that the above-described four classifications and the
employees filling them were improperly excluded
from the unit found appropriate.
C The unit is:
All technical employees employed y the Employer at its Mtor
Components Division located at Elmira. New York. excluding pro-
duction and maintenance employees. managerial employees,. ffice
clerical employees, confidential employees. professional emploees.
guards and supervlsors w ithin the meaning of the AlI
1 127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By telegraphic order, dated December 14, 1979,
the Board denied Respondent's request for review
of the Acting Regional Director's Decision and Di-
rection except that it amended the Acting Regional
Director's Decision to permit production control
planners senior and production control planners to
vote under challenge, and corrected an inadvertent
error in that decision by deleting sales engineers
and sales representatives from the excluded classifi-
cations.
On December 14, 1979, an election by secret
ballot was conducted among the employees in the
appropriate unit.4 The tally of ballots showed that
of approximately 42 eligible voters, 47 cast ballots,
of which 23 were cast for, and 14 were cast
against, International Union United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW); there were 10 challenged ballots,
a number sufficient to affect the results of the elec-
tion.
On January 29, 1980, the Regional Director
issued a Report on Challenged Ballots, in which he
recommended that the challenges to the ballots of
Howard Day, Edward Huddelson, Philip K. Hum-
phrey, and Gregory Stattine be sustained, and that
the challenges to the ballots of Claude M. Thorn-
ton, Henry Margeit, Edward W. Harris, Jr.,
Thomas M. Chimileski, Theodore Malone, and
Charles Spencer be overruled. Since the overruled
challenges were no longer determinative, the Re-
gional Director recommended that a Certification
of Representative issue.
On February 11, 1980, Respondent filed timely
exceptions and brief to the Regional Director's
Report on Challenged Ballots contending that the
Regional Director erred in recommending that the
challenges to the ballots of Howard Day, Edward
Huddelson, Philip K. Humphrey, and Gregory
Stattine be sustained. No exceptions were filed as
to the other recommendations of the Regional Di-
rector.
Subsequently, Howard Day, Edward Huddelson,
Philip K. Humphrey, and Gregory Stattine sent
separate letters protesting the Regional Director's
determination that they be excluded from the bar-
gaining unit. By letter dated February 20, 1980, the
Associate Executive Secretary of the National
Labor Relations Board informed these employees
that they were ineligible to file exceptions under
Section 102.69 of the Board's Rules and Regula-
' As requested by the counsel for the General Counsel in his Motion
to Transfer Proceeding to the Board, and for Summary Judgment and Is-
suance of Board's Decision and Order, we hereby correct our Decision
and Certification of Representative (not reported in volumes of Board
Decisions) issued in Case 3-RC-7606 by substituting December 14, 1979,
for November 21, 1979, as the date of the representation election con-
ducted therein.
tions, and therefore their letters would not be con-
sidered or forwarded to the Board; and that excep-
tions to the Regional Director's Report on Chal-
lenged Ballots had been filed by the Employer ap-
pealing the recommended disposition of their chal-
lenged ballots and thus his recommendations would
be considered in light of the arguments advanced
in the exceptions, the supporting brief, and any
statement in opposition.
On April 28, 1980, the Board issued a Decision
and Certification of Representative, 5 which adopt-
ed the findings and recommendations contained in
the Regional Director's Report on Challenged Bal-
lots and certified the Union, the Petitioner therein,
as the exclusive bargaining representative of the
unit of Respondent's employees described above.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
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. Accordingly, we 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 RESPONDENT
Respondent admits that it has maintained its prin-
cipal office and place of business at 7030 South
Yale, Suite 800, Tulsa, Oklahoma, and further
admits that its Motor Components Division has
maintained an office and place of business at 18th
and Oakwood Avenue in the city of Elmira and
State of New York and is, and has been at all times
material herein, engaged at said plant and location
in the manufacture, sale, and distribution of auto-
motive components and related products.
Annually, Respondent, in the course and conduct
of its business operations, has purchased, trans-
ferred, and delivered to its Elmira, New York,
' Not reported in olumes of Board Decisions.
' See Pirtsburgh Plate Glusi Co v . .L.R.B., 313 U.S. 146. 162 (1941);
Rules and Regulations ot the HBoard Sees 102.67(f) and 12.6
9
(c)
1128
FACET ENTERPRISES, INC.
plant goods and materials valued in excess of
$50,000, which goods and materials were transport-
ed to said plant directly from States of the United
States other than New York.
We find, on the basis of the foregoing, that Re-
spondent 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
America (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
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All technical employees employed by the Em-
ployer at its Motor Components Division lo-
cated at Elmira, New York; excluding produc-
tion and maintenance employees, managerial
employees, office clerical employees, confiden-
tial employees, professional employees, guards
and supervisors within the meaning of the Act.
2. The certification
On December 14, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 3, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 28, 1980, 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 April 28, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 13, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, 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 Respondent has, since
May 13, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE R.MEI)Y
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Facet Enterprises, Inc., Motor Components
Division, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 technical employees employed by the Em-
ployer at its Motor Components Division located
at Elmira, New York; excluding production and
maintenance employees, managerial employees,
office clerical employees, confidential employees,
professional employees, guards and supervisors
within the meaning of the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since April 28, 1980, 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 May 13, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 the Respondent,
Facet Enterprises, Inc., Motor Components Divi-
sion, Elmira, New York, its officers, agents, succes-
sors, and assigns, 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 International
Union, Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All technical employees employed by the Em-
ployer at its Motor Components Division lo-
cated at Elmira, New York; excluding produc-
tion and maintenance employees, managerial
employees, office clerical employees, confiden-
tial employees, professional employees, guards
and supervisors within the meaning of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facility located at 18th and Oak-
wood Avenue in Elmira, New York, copies of the
attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 3 after being duly signed by Re-
spondent'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. 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 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' 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 Pursu-
ant 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 International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America (UAW), as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
1130
FACET ENTERPRISES, INC.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All technical employees employed by the
Employer at its Motor Components Division
located at Elmira, New York; excluding
production and maintenance employees,
managerial employees, office clerical em-
ployees, confidential employees, professional
employees, guards and supervisors within
the meaning of the Act.
FACET ENTERPISES, INC., MOTOR
COMPONENTS DIVISION
113.11