FDI, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1010 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FDI, Inc. and International Union, United Automo-
bile, Aerospace and Agricultural Implement Work-
ers of America-UAW. Case 21-CA-15602
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY AND
WALTHER
Upon a charge filed on April 1, 1977, by Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America-UAW
herein called the Union, and duly served on FDI,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 21, issued a
complaint on April 6, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 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 December 7,
1976, following a Board election in Case 21-RC-
14566 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 2 and that,
commencing on or about March 30, 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 2, 1977, Respondent filed its
answer to the complaint, admitting in part, and
denying in part, the allegations in the complaint and
alleging certain affirmative defenses.
On June 9, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 20, 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. 3
I On May 20, 1977, the Regional Director for Region 21 issued an order
postponing hearing in which he ordered that the hearing, heretofore set for
July 6, 1977, be postponed indefinitely.
2 Official Notice is taken of the record in the representation proceeding,
Case 21-RC 14566, as the term "record" is defined in Secs. 102.68 and
102 6
9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
L 7 Eleciros"stems, 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): Intert)pe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
231 NLRB No. 168
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 opposition to
the General Counsel's Motion for Summary Judg-
ment, Respondent admits the complaint's jurisdic-
tional and procedural allegations, and its refusal of
the Union's postcertification request for bargaining.4
However, Respondent denies the material allegations
of the complaint (including the appropriateness of
the bargaining unit) and sets forth several affirmative
defenses, all of which relate to its contentions that,
because of certain factual or procedural errors in the
underlying representation proceeding, the Union was
improperly certified. On December 17, 1976, Re-
spondent timely filed a request for review of the
Regional Director's Second Supplemental Decision
and Certification of Representative. The Board by
telegraphic order dated February 2, 1977, denied
Respondent's request for review in its entirety, as it
raised "no substantial issues warranting review."
As the Board stated in Frito-Lay, Inc., 161 NLRB
950 at 952-953 (1966):
It is well settled that, in the absence of any
evidence unavailable at the time of the represen-
tation proceeding or any newly discovered evi-
dence, the Board will not reconsider in a
subsequent refusal-to-bargain proceeding matters
which have been disposed of in a prior, related
representation case. This is equally true where the
representation proceeding was processed under
Section 3(b) of the Act, especially where the
Board has denied a request for review of the
Regional Director's decision. [Footnotes omitted.]
As noted above, it is well settled that in the absence
of newly discovered or previously unavailable evi-
dence 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
Follen Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec.
9(d) of the NLRA, as amended.
:' The response is entitled "Motion in Opposition to General Counsel's
Motion for Summary Judgment."
I Respondent's March 30, 1977, letter to the Union stated that the
"Company position remains that ... the National Labor Relations Board
improperly certified your Union as the bargaining representative of
employees employed at the Company."
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FDI, INC.
have been litigated in a prior representation proceed-
ing.5
All issues raised by the Respondent in this
proceeding 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.6
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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation, is engaged in the
manufacture of air and industrial filter equipment at
its facility in City of Industry, California. In the
normal course and conduct of its business operations
described above, Respondent 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
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.
, See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f and 102.69(c).
i Respondent contends, inter alia, that the Regional Director erred in
declining to enforce a subpoena duces tecum seeking voluminous information
as to "ant allegations of discriminatory conduct based on sex, age, race or
national origin" made against the Union, "regardless of whether the
allegation resulted in a determination favorable or unfavorable" to the
Union. Respondent further contends that the Hearing Officer acted "in an
unlawful manner" by ruling that the evidence sought by Respondent was
not relevant. The Hearing Officer based his ruling upon a record showing(l)
that the Union involved (Region 6 of the International) includes in its wide
jurisdiction the States of Alaska, Arizona. California, Hawaii, Idaho.
Nevada. Oregon. Utah, and Washington; (2) that the Union does not
maintain a hiring hall, and union membership is thus obtained through
voluntary means or through union-security clauses requiring membership by
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees,
including all production workers, material han-
dlers, machinists, machine operators, the return
merchandise and inspection employee, the screw
machine set-up employee, the screw machine
helper, warehousemen, and janitors employed by
the Employer at its 18421 East Railroad Street,
City of Industry, California, facility; excluding all
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2. The certification
On June 3, 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 the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 7, 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 March 15, 1977, and at
all times thereafter, the Union has requested the
Respondent 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 March 30, 1977, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
employees hired by various employers; (3) that the Union does not maintain
an apprenticeship program: and (4) that in the past 5 years only one such
charge had been filed against the Union. and that charge had been
withdrawn. Thus, even under the Board's Decisions in Grant Furniture
Plaza. Inc., 213 NLRB 410 (1974), and Bekins Moving d Storage Co. of
Florida, Inc., 211 NLRB 138 (1974), the Hearing Officer's rulings herein
were clearly correct, as affirmed by the Regional Director and by the Board
when it subsequently denied Respondent's request for review on this issue.
Moreover, as the Board recently stated in Bell d Howell Company. 230
NLRB 420 (1977), issues involving alleged invidious discrimination by a
labor organization "are prematurely raised in a representation proceeding or
in a proceeding, such as this, where the employer refuses to bargain in order
to test the underlying certification." (See also Handy Andy, Inc., 228 NLRB
447, overruling Bekins. supra.) Member Jenkins does not rely on Bell &
Howell or Handy Andy, Inc.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 March 30, 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, Respon-
dent 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, FDI, Inc., set forth in
section III, above, occurring in connection with its
operations 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 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, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. FDI, Inc., is an employer engaged in com-
merce 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 production and maintenance employees,
including all production workers, material handlers,
machinists, machine operators, the return merchan-
dise and inspection employee, the screw machine set-
up employee, the screw machine helper, warehouse-
men, and janitors employed by Respondent at its
18421 East Railroad Street, City of Industry, Califor-
nia, facility; excluding all office clerical employees,
professional employees, guards, 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 December 7, 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 March 30, 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 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,
FDI, Inc., City of Industry, California, 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
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 production and maintenance employees,
including all production workers, material han-
dlers, machinists, machine operators, the return
1012
FDI, INC.
merchandise and inspection employee, the screw
machine set-up employee, the screw machine
helper, warehousemen, and janitors, employed by
the Employer at its 18421 East Railroad Street,
City of Industry, California, facility; excluding all
office clerical employees, professional 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:
(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 City of Industry, 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 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 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 Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Ameri-
ca-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 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 employees,
including all production workers, material
handlers, machinists, machine operators, the
return merchandise and inspection employ-
ee, the screw machine set-up employee, the
screw machine helper, warehousemen, and
janitors, employed by the Employer at its
18421 East Railroad Street, City of Industry,
California, facility; excluding all office
clerical employees, professional employees,
guards, and supervisors as defined in the
Act.
FDI, INC.
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