Franklin Art Glass Studios

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 675 (N.L.R.B. 1980)

FRANKLIN ART GLASS STUDIOS
Franklin Art Glass Studios, Inc. and United Glass
and Ceramic Workers of North America, AFL-
CIO-CLC. Case 9-CA-14869
July 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on February 7, 1980, by
United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, herein called the
Union, and duly served on Franklin Art Glass Stu-
dios, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 9, issued a com-
plaint on February 29, 1980, 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
and complaint and notice of hearing before an ad-
ministrative 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 January 17,
1980, following a Board election in Case 9-RC-
12972 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about January 31, 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 March 12, 1980,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On April 14, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and Motion to Strike. Subse-
quently, on April 18, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed a response to
Notice To Show Cause.
Official notice is taken of the record in the representation proceed-
ing, Case 9-RC-12972, as the term "record" is defined in Secs 10268
and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended
See LTV Electroystemrs. Inc. 166 NLRB 938 (1967), enfd 388 F 2d 683
(4th Cir. 1968)}; Golden .4ge Beverage Co.. 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969), Interrype Co. v Penello, 269 F Supp 573
(DC.Va. 1967); Folle'i Corp. 164 NLRB 378 (1967), enfd 397 F2d 91
(7th Cir 1968). Sec 9(d) of the NL.RA, as amended
250 NLRB No. 95
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 re-
sponse to the Notice To Show Cause, Respondent
admits that the Union has demanded bargaining
and that it has refused to bargain, but denies the
validity of the Board's certification of the Union in
the underlying representation case. It asserts, inter
alia, that the Board certification was improper be-
cause the Board failed to conduct a hearing on
three challenged ballots and because the Union
breached an alleged private settlement agreement
which Respondent contends is newly discovered
and previously unavailable evidence.
The General Counsel contends that Respondent's
contentions are merely an attempt to relitigate mat-
ters in a complaint proceeding which have been
previously litigated and decided in a representation
proceeding and that any alleged breach of a pur-
ported private settlement agreement would have no
bearing on the issue involved in this proceeding.
We agree with the General Counsel.
A review of the record herein, including the
record in Case 9-RC-12972, shows the following:
on June 11, 1979, the Union filed a petition seeking
certification as the collective-bargaining representa-
tive of Respondent's production, maintenance, and
installation employees. Pursuant to a Stipulation for
Certification Upon Consent Election, an election
was conducted in which 13 ballots were cast for
the Union, 10 ballots were against the Union, and 7
ballots were challenged, a sufficient number to
affect the result. No objection to the conduct of
the election or to conduct affecting the results of
the election were filed by either party. After inves-
tigation of the challenged ballots the Regional Di-
rector, on September 27, 1979, issued a Report on
Challenged Ballots and Recommendations to the
Board in which he recommended that the chal-
lenge to one ballot be sustained, that the challenges
to three other ballots be overruled and the ballots
opened and counted, and that a hearing be held on
the remaining challenged ballots if they still were
determinative. Thereafter, Respondent filed excep-
tions to the Regional Director's report. On Decem-
ber 19, 1979, the Board issued a Decision and Di-
rection 2 adopting the Regional Director's findings
and recommendations, with the exception of his
2 Not reporteid i) hiound rolume, of Board decisiions
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendation sustaining a challenged ballot,
which the Board would have sent to hearing had it
become determinative. On January 4, 1980, the Re-
gional Director opened and counted the three
overruled challenged ballots and issued a revised
tally of ballots which showed conclusively that the
Union received a majority of the votes cast regard-
less of the undetermined challenged ballots. Conse-
quently, the Regional Director, on behalf of the
Board, issued a Certification of Representative on
January 17, 1980. On January 31, 1980, the Union,
in writing, requested Respondent to bargain collec-
tively. 3 Since that time Respondent has failed and
refused to bargain with the Union.
In its answer to the Notice To Show Cause Re-
spondent contends that after it had filed its excep-
tions to the Regional Director's report that the
"union approached the employer [Respondent] and
attempted to see if the matter could be resolved by
inter alia, the Company withdrawing its objections
[exceptions] to the report of the Regional Director.
The Union, in turn, would withdraw some unfair
labor practice charges." Respondent states that it
forwarded an executed settlement agreement to the
Union; however, after the Board issued its Deci-
sion and Direction the Union advised Respondent
that it would not execute the settlement agreement.
Respondent contends that as a result of the alleged
breach of the settlement agreement the certification
is improper. We find no merit in Respondent's con-
tention. The issue at hand is whether Respondent
was justified in refusing to bargain with the Union.
Even if we were to assume that the alleged settle-
ment had been executed and subsequently ap-
proved by both parties, the terms of the settlement
would not have had a bearing on the Respondent's
obligation to recognize and bargain with the
Union, the Union still would have been certified as
the collective-bargaining representative of Re-
spondent's employees. In other words, regardless
of whether Respondent had withdrawn its excep-
tions and whether the Union had agreed to with-
draw its unfair labor practice charges, the Union
would have still received a majority of the ballots
cast in the election. Thus, Respondent's allegation
that the Union breached a purported settlement
agreement is immaterial to the issues involved in
this case and does not justify Respondent's refusal
to bargain 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-
3 The complaint further alleged, and Respondent denied, that the
Union, by telephone, requested bargaining on January 30, 1980. As Re-
spondent does not deny that a written request was made on January 31.
1980, we find that the issue of whether an oral request was made the pre-
ceding day is not material.
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. 4
All issues raised by Respondent in this proceed-
ing, except for those involving the alleged settle-
ment agreement, discussed above, were or could
have been litigated in the prior representation pro-
ceeding, and 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 re-
quire 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 pro-
ceeding. Accordingly, we grant the Motion for
Summary Judgment. 5
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, an Ohio corporation with an office and
place of business in Columbus, Ohio, where it is
engaged in the manufacture, retail, and nonretail
sales of stained and leaded glass products. During
the past 12 months, a representative period, Re-
spondent, in the course and conduct of its business
operations purchased and received products, goods,
and materials in excess of $50,000 directly from
suppliers located outside the state of Ohio.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
4 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 102.6 9(c)
5 In its answer to the complaint, Respondent admits the factual allega-
tions of commerce but denies the allegation that it is an employer en-
gaged in commerce within the meaning of Sec 2(6) and (7) of the Act,
on the ground that such allegation states a legal conclusion However, by
admitting the facts of commerce Respondent has in effect admitted both
the statutory and discretionary jurisdiction of the Board and there is,
therefore. nothing further to litigate with respect to the issue of jurisdic-
tion Further, Respondent did not contest jurisdiction in the representa-
tion case but stipulated to it and it had presented newly discovered or
previously unavailable evidence. or asserted any special circumstances,
which would require the Board to allow relitigation of the jurisidictional
issue in this proceeding Travel Rest, Inc., d/b/a Gateway Motor Lodge,
222 NLRB 851 (1967).
Respondent also denies that Gary Helf is a supervisor within the mean-
ing of Sec. 2( 11) of the Act and/or that he is an agent within the mean-
ing of Sec. 2(13) of the Act. We find it unnecessary to make a finding on
this issue as the position held by Gary Helf is immaterial to this proceed-
ing. Finally, Respondent denies that the Union is now and has been at all
times since January 17, 1980, the representative of the employees in the
stipulated unit. However, the Board, in its previously referred to Deci-
sion and Direction, disposed of this issue and it therefore cannot be reliti-
gated herein. Teledyne, Landis Machine, 212 NLRB 73 (1974)
In view of our conclusions herein and our decision to grant the Gener-
al Counsel's Motion for Summary Judgment, we find it unnecessary to
pass upon the General Counsel's motion to strike portions of Respond-
ent's answer
676
FRANKLIN ART GLASS STUDIOS
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 INVOI VED
United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
II1. 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 production employees, maintenance em-
ployees and installation employees employed
by Respondent at its Columbus, Ohio facility,
excluding all office clerical employees, profes-
sional employees, guards and supervisors as
defined in the Act.
2. The certification
On August 14, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 9, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on January 17, 1980, and
the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 31, 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 January 31, 1980, 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
January 31, 1980, 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 THF 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:
CONCI USIONS OF LAW
1. Franklin Art Glass Studios, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Glass and Ceramic Workers of North
America, AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production employees, maintenance em-
ployes, and installation employees of Respondent at
its Columbus, Ohio, facility, excluding all office
clericals, professional employees, guards, and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
677
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Since January 17, 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 January 31, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive 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,
Franklin Art Glass Studios, Inc., Columbus, Ohio,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Glass and
Ceramic Workers of North America, AFL-CIO-
CLC, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production employees, maintenance em-
ployees and installation employees employed
by Respondent at its Columbus, Ohio facility,
excluding all office clerical employees, profes-
sional employees, guards, and supervisors as
defined in 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 office and place of business in Co-
lumbus, Ohio, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms pro-
vided 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 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
(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 Ihe e vcnl Ihl till, ()rder iS eClforcCd by ,a Judgment of a United
Stlitcs CLurt of Apperls, the words ill the notice reading "Posted by
()rder (of the Natilnal Labor Rclationns Iloaard" shall read "P:osted P'ursu
-
,ant to ; Juldgmlerlt (if he Unied Stilltc Courl of Appekals I nforcing all
()rder of the Natilonal labor Relaltionls HIoa;rd
APPENDIX
NoIIC 10-ro EMPI.OYtIES
POSTED BY ORI)rR OF THEI
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 United Glass and Ceramic Workers of
North America, AFL-CIO-CLC, as the exclu-
sive representative of the employees in the
bargaining unit described below.
Wt wit.I. NOTr 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 WIL.L, 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 employees, maintenance em-
ployees and installation employees at our
Columbus, Ohio facility, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
FRANKI.IN ART GLASS STUDIO, INC.
678