Firestone Wire & Cable Co.

National Labor Relations Board - Board Decisions

May 1, 1980

249 N.L.R.B. 218 (N.L.R.B. 1980)

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firestone Wire & Cable Co., A Division of Firestone
Tire & Rubber Company and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW.
Case 9-CA-14642
May 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on December 12, 1979, by
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW, herein called the Union, and duly
served on Firestone Wire & Cable Co., A Division
of Firestone Tire & Rubber Company, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 9, issued a complaint on January
9, 1980, against Respondent, alleging that Respond-
ent 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on November 7,
1979, following a Board election in Case 9-RC-
12796, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
27, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On January
21, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint. Respondent admits re-
ceipt of the charge filed by the Union on Decem-
ber 12, 1979, and that it meets the Board's jurisdic-
tional standards. Respondent admits the supervi-
sory status of A. L. Sardone, plant manager. Re-
spondent further admits that the following employ-
Official notice is taken of the record in the representation proceed-
ing. Case 9-RC-12796 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). end. 388 F.2d 683 (4th
Cir 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp 573
(D C.Va. 1967); Follett Corp.., 164 NLRB 378 (1967), enfd. 397 F 2d 91
(7th Cir 1968); Sec 9(d) of the NLRA, as amended
249 NLRB No. 49
ees constitute an appropriate unit for collective
bargaining:
All production, maintenance and shipping and
receiving employees employed by Employer at
its Danville, Kentucky location, including
store attendants in Department 714, tool and
die-B employees in Department 841, job set-
ters in Department 020, building services in
Department 736, shipping and receiving lead-
men in Department 791-901, the expediter-
driver and temporary hourly fill-in supervisors;
but excluding all office clerical employees,
technical employees, including laboratory per-
sonnel and PP & D employees, material con-
trol analysts in Department 936, professional
employees, guards, probationary hourly super-
visors, permanent salaried supervisors and all
other supervisors as defined in Section 2(11) of
the Act.
Respondent admits that on November 7, 1979, the
Union was certified by the National Labor Rela-
tions Board as the collective-bargaining representa-
tive of the employees in the above-described unit,
but denies that the certification was issued in ac-
cordance with applicable law. Respondent alleges
that the Board violated Section 9(c) of the Act by
failing to set aside the results of the April 4 and 5,
1979, representation election and by failing and re-
fusing to conduct a hearing into the Union's con-
duct during the campaign. Respondent admits that
the Union has requested and is requesting it to bar-
gain collectively with the Union and that it has re-
fused to do so, but denies the conclusory 8(a)(5)
and (1) allegations.
On February 11, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February
20, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. The Union
filed a response supporting the Motion for Sum-
mary Judgment and Respondent thereafter also
filed a response to the Notice To Show Cause and
a motion to dismiss the complaint.
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 its response to
the Notice To Show Cause, Respondent attacks the
Union's certification on the basis that the Regional
FIRESTONE WIRE CABLE CO. 219
Director failed to conduct a hearing on Respond-
ent's objections to the conduct of the election.
Review of the record herein reveals that in Case
9-RC-12796 the Union filed the petition on Febru-
ary 6, 1979. The Regional Director approved the
parties' Stipulation for Certification Upon Consent
Election on March 19, 1979. The election took
place on April 4 and 5, 1979, and the tally of bal-
lots revealed that, of approximately 364 eligible
voters, there were 183 ballots cast for, and 176 cast
against, the Union. There were no challenged bal-
lots. Respondent filed timely objections to the con-
duct of the election on April 11, 1979, alleging that
union adherents threatened employees who did not
support the Union with physical harm to them-
selves and their automobiles, that several auto-
mobiles were actually damaged, and that, thereby,
the "laboratory conditions" for a fair election were
destroyed. In support of these objections, Respond-
ent submitted signed statements from employees.
The Regional Director conducted an investigation
of the issues raised by the objections and on May
30, 1979, issued his report and recommendations
overruling the objections. Respondent filed excep-
tions to the Regional Director's report, contending
that the issues raised by the objections can best be
resolved by a hearing. On November 7, 1979, the
Board issued its Decision that Respondent's excep-
tions raised no material or substantial issues of fact
or law warranting reversal or a hearing and certi-
fied the Union.
Following the Union's request, on November 9,
1979, that Respondent engage in collective-bargain-
ing negotiations with the Union, Respondent, on
November 27, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union.
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. 2
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.
2 See Pittsburgh Plate Glass Co. v. .L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f and 102.69(c)
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation engaged in
the manufacture of bead wire and steel wire cord
at its Danville, Kentucky, facility. In the course of
its business operations at the Danville, Kentucky,
location, Respondent annually sells and ships prod-
ucts, goods, and materials valued in excess of
$50,000 directly to points outside the Common-
wealth of Kentucky.
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.
11. 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. THIE 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 production, maintenance, and shipping and
receiving employees employed by the Employ-
er at its Danville, Kentucky location, including
store attendants in Department 714, tool and
die-B employees in Department 841, job set-
ters in Department 020, building services in
Department 736, shipping and receiving lead-
men in Department 791-901, the expediter-
driver and temporary hourly fill-in supervisors;
but excluding all office clerical employees,
technical employees, including laboratory per-
sonnel and PP & D employees, material con-
trol analysts in Department 936, professional
employees, guards, probationary hourly super-
visors, permanent salaried supervisors and all
other supervisors as defined in Section 2(11) of
the Act.
2. The certification
On April 4 and 5, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
FIRESTONE WIRE &CABLE CO.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballot election conducted under the supervision of
the Regional Director for Region 9, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on Novem-
ber 7, 1979, and the Union continues to be such ex-
clusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 9, 1979, 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 November 27, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
November 27, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 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 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 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. Firestone Wire & Cable Co. , A Division of
Firestone Tire & Rubber Company, is an employer
engaged in commerce within the meaning of Sec-
tion 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, maintenance, and shipping and
receiving employees employed by the Employer at
its Danville, Kentucky location including store at-
tendants in Department 714, tool and die-B em-
ployees in Department 841, job setters in Depart-
ment 020, building services in Department 736,
shipping and receiving leadmen in Department
791-901, the expediter-driver and temporary hourly
fill-in supervisors; but excluding all office clerical
employees, technical employees, including labora-
tory personnel and PP & D employees, material
control analysts in Department 936, professional
employees, guards, probationary hourly supervi-
sors, permanent salaried supervisors and all other
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since November 7, 1979, 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 November 27, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
FIRESTONE WIRE & CABLE CO. 221
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)(1) 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,
Firestone Wire & Cable Co., A Division of Fire-
stone Tire & Rubber Company, Danville, Ken-
tucky, 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 Agri-
cultural Implement Workers of America, UAW, as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production, maintenance, and shipping and
receiving employees employed by the Employ-
er at its Danville, Kentucky location, including
store attendants in Department 714, tool and
die-B employees in Department 841, job set-
ters in Department 020, building services in
Department 736, shipping and receiving lead-
men in Department 791-901, the expediter-
driver and temporary hourly fill-in supervisors;
but excluding all office clerical employees,
technical employees, including laboratory per-
sonnel and PP & D employees, material con-
trol analysts in Department 936, professional
employees, guards, probationary hourly super-
visors, permanent salaried supervisors and all
other supervisors as defined in Section 2(11) 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 Danville, Kentucky, place of busi-
ness copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, on forms provided by
the Regional Director for Region 9, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, 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 Uniled States Court of Appeals Enforcing iln
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.
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 production, maintenance, and shipping
and receiving employees employed by the
Employer at its Danville, Kentucky loca-
tion, including store attendants in Depart-
ment 714, tool and die-B employees in De-
partment 841, job setters in Department 020,
building services in Department 736, ship-
ping and receiving leadmen in Department
FIRESTONE WIRE &CABLE CO
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
791-901, the expediter-driver and temporary
hourly fill-in supervisors; but excluding all
office clerical employees, technical employ-
ees, including laboratory personnel and PP
& D employees, material control analysts in
Department 936, professional employees,
guards, probationary hourly supervisors,
permanent salaried supervisors and all other
supervisors as defined in Section 2(11) of the
Act.
FIRESTONE WIRE & CABLE Co., A
DIVISION OF FIRESTONE TIRE &
RUBBER COMPANY