Gulton Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1972

195 N.L.R.B. 782 (N.L.R.B. 1972)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Luminator Division of Gulton Industries , Inc. and
International Union of Electrical , Radio and Ma-
chine Workers, AFL-CIO. Case 16-CA-4579
March 8, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a charge filed on December 8, 1971, by Inter-
national Union of Electrical, Radio and Machine
Workers, AFL-CIO, herein called the Union, and duly
served on Luminator Division of Gulton Industries,
Inc., herein called the Respondent, the General Coun-
sel of the National Labor Relations Board, by the Re-
gional Director for Region 16, issued a complaint on
December 22, 1971, against Respondent, alleging that
Respondent 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, complaint, and notice of hearing before
a Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on November 9, 1971,
following a Board election in Case 16-RC-5738 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about December 2, 1971, and at all times there-
after, 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
December 27, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On January 12, 1972, counsel for the General Coun-
sel filed directly with the Board a Motion for Summary
Judgment. Subsequently, on January 19, 1972, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a response
to Notice To Show Cause, together with an offer of
proof. A supplemental offer of proof was also filed by
Respondent, and an opposition thereto was filed by the
General Counsel.
' Official notice is taken of the record in the representation proceeding,
Case 16-RC-5738, as the "record" is defined in Secs 102 68 and 102 69(f)
of the Board's Rules and Regulations Series 8, as amended See LTV EIec-
trosystems, Inc., 166 NLRB 938, enfd 388 F.2d 683 (C A 4, 1968); Golden
AgeBeverageCo., 167 NLRB 151, IntertypeCo. v. Penello, 269 F Supp 573
(D C Va., 1967); Follett Corp., 164 NLRB 378, enfd 397 F 2d 91 (C A. 7,
1968); Sec. 9(d) of the NLRA
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 I
In its answer to the complaint and its response to the
Notice To Show Cause, Respondent admits essentially
all of the allegations of the complaint, contesting only
the validity of the representation election and the
Board's certification of the Union. Respondent's posi-
tion here is that prior to the election the Union had
misrepresented to employees wage increases to be re-
ceived by employees of Respondent's parent company
in New Jersey, and that Respondent had not had ample
time prior to the election to effectively respond to the
Union's statements. The record in Case 16-RC-5738
shows that Respondent raised this contention in its
objections to conduct affecting the results of the elec-
tion, that the Regional Director thereafter recom-
mended that the objections be overruled, that Respond-
ent filed with the Board exceptions to the Regional
Director's report, and that the Board, on November 9,
1971, found no merit in the contention of Respondent,
and further held that the exceptions raised no material
or substantial issues of fact or law warranting a reversal
of the Regional Director or requiring a hearing.
It is well settledfhat in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging 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.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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. We therefore find that
the Respondent has not raised any issue which is prop-
erly 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:
' 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)
195 NLRB No. 145
LUMINATOR DIV. OF GULTON INDUSTRIES
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware Corporation, main-
taining an office and place of,business at 1200 E. Dallas
North Parkway, Plano, Texas, where it is engaged in
the manufacturing and distributing of electrical light-
ing fixtures and related products. During the past year,
Respondent manufactured, sold, and distributed from
its Plano, Texas, plant products valued `iii excess of
$50,000, which, were shipped directly to States of the
United States other than the State of Texas.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies 'of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Ma-
chine Workers, AFL-CIO, 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees of
Respondent at its Plano, Texas, plant, including
working group leaders, shipping and receiving em-
ployees, stockmen, and truckdrivers, exclusive of
all office clerical employees, guards, laboratory
employees, engineers, draftsmen, and supervisors
as defined in the Act.
2. The certification
On July 22, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 16, designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on November 9, 1971, 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
783
Commencing on or about November 15, 1971, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about December 2, 1971, 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 bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
December 2, 1971, 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, Respondent 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 operations de-
scribed 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 commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 185; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the blIsis of the foregoing facts and
the entire record, makes the following:
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Luminator Division of Gulton Industries, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union of Electrical Radio and Ma-
chine Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of Re-
spondent at its Plano, Texas, plant, including working
group leaders, shipping and receiving employees, stock-
men, and truckdrivers, exclusive of all office clerical
employees, guards, laboratory employees, engineers,
draftsmen, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since November 9, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about December 2, 1971, 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 Respond-
ent 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, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed 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 meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Luminator
Division of Gulton Industries, Inc., 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 of Electrical,
Radio and Machine Workers, AFL-CIO, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees of Re-
spondent at its Plano, Texas, plant, including
working group leaders, shipping and receiving em-
ployees, stockmen, and truckdrivers, exclusive of
all office clerical employees, guards, laboratory
employees, engineers, draftsmen, 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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.
(b) Post at its Plano, Texas, plant copies of the at-
tached notice marked "Appendix."' Copies of said no-
tice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by Respondent immedi-
ately 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 16, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Interna-
tional Union of Electrical , Radio and Machine
Workers, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
LUMINATOR DIV. OF GULTON INDUSTRIES
the exercise of the rights guaranteed them by Sec-
tion 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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance em-
ployees of Respondent at its Plano, Texas,
plant, including working group leaders, ship-
ping and receiving employees, stockmen, and
truckdrivers, exclusive of all office clerical
employees, guards, laboratory employees, en-
gineers, draftsmen, and supervisors as defined
in the Act.
785
LUMINATOR DIVISION OF
GULTON INDUSTRIES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Office Building, Room 8A24, 819 Tay-
lor Street, Fort Worth, Texas 76102, Telephone 817-
334-2921.