General Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Feb 4, 1976

222 N.L.R.B. 723 (N.L.R.B. 1976)

GENERAL TIRE & RUBBER CO.
General Tire & Rubber Company and United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO. Case 11-CA-6209
February 4, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
. Upon a charge filed on August 4, 1975, by United
Rubber, Cork , Linoleum and Plastic Workers of
America, AFL-CIO, herein called the Union, and
duly served on General Tire & Rubber Company,
herein called the Respondent , the Acting General
Counsel of the National Labor Relations Board,
herein called the General Counsel, by the Regional
Director for Region 11, issued a complaint on Octo-
ber 16 , 1975, against Respondent , alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing 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 hear-
ing 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 July 9 , 1975, fol-
lowing a Board election in Case 11-RC-4004 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent 's employees
in the unit found appropriate ;' and that , commenc-
ing on - or about October 7 , 1,975, 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 October 28, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 13, 1975, counsel for the , General
Counsel filed directly, with the Board a Motion for
Summary Judgment , and a memorandum in support
thereof with exhibits attached . Subsequently, on No-
vember 25 , 1975, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel 's Motion for
Summary Judgment should not be , granted . Respon-
' Official notice is taken of the record in the representation proceeding,
Case l 1-RC-4004, 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 (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 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
723
dent thereafter filed a response to Notice To Show
Cause and an amended answer to 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 and amended answer to the com-
plaint and response to the Notice To Show Cause
Respondent in substance attacks the Union's certifi-
cation on the basis of its objections to the election in
the underlying representation case and requests
either a hearing on its objections or Summary Judg-
ment in its favor. The General Counsel contends that
Respondent is attempting to relitigate matters con-
sidered and disposed of in the prior representation
proceedings and this it may not do. We agree.
Review of the record herein, including that in Case
11-RC-4004, establishes that, pursuant to a Stipula-
tion for Certification Upon Consent Election, an
election was held on April 24, 1975. The tally of bal-
lots showed 13 votes were cast for the Union, 11
against, and 4 challenged ballots. Thereafter, Re-
spondent filed timely objections to conduct affecting
the results of the election contending in substance
that a letter mailed by the Union to employees mis-
represented the wage structure negotiated by the
Union at another company. ,After investigation, the
Acting Regional Director on May 21, 1975, issued
his Report on Objections and Challenges finding that
the Union's statement was, an "imprecise expression"
and not a misrepresentation under Hollywood Ceram-
ics Company, Inc., 140 NLRB 221 (1962), recom-
mending that Respondent's objections be overruled,
that the challenges be sustained as was agreed by
both parties, and that the Union be certified. Re-
spondent filed exceptions to the report and a brief
basically reiterating its objections and alternatively
requesting a hearing. After reviewing the record in
light of the exceptions and brief, the Board on July 9,
1975, issued its Decision and Certification of Repre-
sentative in which it adopted the recommendations
of the Acting Regional Director and certified the
Union. Respondent filed a motion for reconsidera-
tion and brief in support thereof objecting to the
Board's adoption of the Acting Regional Director's
finding that the union statement was an "imprecise
expression" and not a misrepresentation and con-
tending that the Board decision is contrary to ex-
isting precedent. On September 2, 1975, the Board
denied Respondent's motion as lacking in merit.
222 NLRB No. 115
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
deny Respondent's request for Summary Judgment
and grant the General Counsel's Motion for Summa-
ry Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
tion 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 the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All quality control inspectors and lab techni-
cians employed at the Respondent's Charlotte,
North Carolina, plant located at 1100 Continen-
tal Blvd., in the Arrowood Industrial Park, ex-
cluding all production and maintenance em-
ployees, janitors, maintenance laborers, office
clerical employees, professional employees, pro-
duction control employees, setup men, inspec-
tors, checkers, all other job classifications pres-
ently paid on a salary basis, guards, and
supervisors as defined in the Act.
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation engaged in the
manufacture of rubber tires at its Charlotte, North
Carolina, plant, the only facility involved in these
proceedings. During the past 12 months, a represen-
tative period, Respondent manufactured, sold, and
shipped from its North Carolina facility products
valued in excess of $50,000 to points directly outside
the State of North -Carolina and purchased from
points directly outside the State of North Carolina
materials valued in excess, of $50,000.
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 assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber , Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor organiza-
2 See Pittsburgh Plate Glass Co v NLRB, 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c)
3 As to Respondent's request for a hearing on these issues , we note that
the Respondent has made such a request in the representation proceeding
and that it was not granted . Further, it is established that no hearing is
required where, as here, there are no properly litigable issues of fact to be
resolved Locust Industries, Inc, 221 NLRB No. 85 (1975), Janler Plastic
Mold Corporation, 191 NLRB 162 (1971).
2. The certification
On April 24, 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 11, 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 July 9, 1975 , 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 September 9, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about October 7, 1975, 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 October 7, 1975, 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-
GENERAL TIRE & RUBBER CO.
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 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.
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. General Tire & Rubber Company is an employ-
er engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All quality control inspectors and lab techni-
cians employed at the Respondent's Charlotte, North
Carolina, plant located at 1100 Continental Blvd., in
the Arrowood Industrial Park, excluding all produc-
tion and maintenance employees, janitors, mainte-
nance laborers, office clerical employees, profession-
al employees, production control employees, setup
725
men, inspectors, checkers, all other job classifications
presently paid on a salary basis, guards, and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since July 9, 1975, the above-named labor orga-
nization has been and now is the certified and exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about October 7, 1975, 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, Gener-
al Tire & Rubber Company, Charlotte, North Caroli-
na, 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 United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All quality control inspectors and lab techni-
cians employed at the Respondent's Charlotte,
North Carolina, plant located at 1100 Continen-
tal Blvd., in the Arrowood Industrial Park, ex-
cluding all production and maintenance em-
ployees, janitors, maintenance laborers, office
clerical employees, professional employees, pro-
duction control employees, setup men, inspec-
tors, checkers, all other job classifications pres-
ently paid on a salary basis, guards, and
supervisors as defined in the Act.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 Charlotte, North Carolina, plant,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Re-
gional Director for Region 11, after being duly
signed by Respondent's representative, shall be post-
ed 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4In 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 Unit-
ed Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, 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 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
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All quality control inspectors and lab techni-
cians employed at the Respondent's Char-
lotte, North Carolina, plant located at 1100
Continental Blvd., in the Arrowood Industrial
Park, excluding all production and mainte-
nance employees, janitors, maintenance la-
borers, office clerical employees, professional
employees, production control employees, set-
up men, inspectors, checkers, all other job
classifications presently paid on a salary basis,
guards, and supervisors as defined in the Act.
GENERAL TIRE & RUBBER COMPANY