Hamilton Electronics Co.

National Labor Relations Board - Board Decisions

Mar 7, 1972

195 N.L.R.B. 716 (N.L.R.B. 1972)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton Electronics Company and International
Union of Electrical , Radio and , Machine Workers,
and its Local 679, AFL-CIO-CLC. Case 6-CA-
5738
March 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on November 11, 1971, by Inter-
national Union of Electrical, Radio and Machine
Workers, and its Local 679, AFL-CIO-CLC, herein
called the Union, and duly served on Hamilton Elec-
tronics Company, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 6, issued
a complaint on November 23,.1971,'against Respond-
ent, 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 Sec-
tion 2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and no-
tice 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 October 7, 1971,
following a Board election in Case-RC-5741, 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 October 18, 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 6, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On December 17, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 23,
1971, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the General Counsel's Motion for Summary Judgment
should not be granted. The Union and Respondent
thereafter filed responses to Notice To Show Cause.
' Official notice is taken of the record in the representation proceeding,
Case 6-RC-5741 as the term "record" is defined in Secs 102 68 and
102.69(f) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrosystems, Ina, 166 NLRB 938, enfd. 388 F.2d 683 (CA 4,
1968); Golden Age Beverage Co., 167 NLRB 151, Intertype Co 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
In its response to the Notice To Show Cause, as in
its answer-to the complaint, the Respondent contends
that the certified Union has not been designated and
selected by an.uncoerced majority of the employees in
the appropriate unit as their exclusive collective-bar-
gaining representative and that it has been denied a
hearing on its objections which raise the issue of
whether the Union represents an uncoerced majority of
employees.
The record in Case 6-RC-5741 shows that an elec-
tion was conducted on April 23,, 1971, pursuant to a
Stipulation_ for Certification Upon Consent Election.
Following the election which was won by the Union,
the Respondent filed timely objections alleging,,in sub-
stance, ,that the Union threatened employees with loss
of jobs if they did not join or vote for the Union, threat-
ened employees with physical harm or violence if they
did not vote for the Union, and made material misstate-
ments offact and information to which the Respondent
has no opportunity to reply. After an investigation the
Regional Director, on June 30, 1971, issued and served
upon the parties his Report on Objections in which he
found that the Respondent's objections did not raise
any substantial or material issues with respect to the
election and recommended that the objections be over-
ruled. The Respondent filed timely exceptions with the
Board arguing that its objections did raise substantial
and material issues warranting the setting aside of the
election and the ordering of a new election or, in the
alternative, the direction of a hearing. The Board con-
sidered the entire record, including the Regional Direc-
tor's report and the Respondent's exceptions, and in its
Decision and Certification of Representative of Octo-
ber 7, 1971, was of the opinion that the exceptions
raised no material or substantial issues of fact or law
warranting a hearing. Accordingly, the Board adopted
the Regional Director's findings and recommendations
and certified the Union. The contentions and argu-
ments advanced by the Respondent in the unfair labor
practice proceeding are identical to those which it ad-
vanced in the underlying representation case, which the
Board had previously considered and denied.
It is well settled that 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
195 NLRB No. 129
HAMILTON ELECTRONICS COMPANY
issues which were or could have been litigated in a prior
representation proceeding.2
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 issued which is
properly litigable in this unfair labor practice proceed-
ing. We shall, accordingly, grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a West Virginia corporation with
principal office and plant located in Carolina, West
Virginia, is there engaged in the manufacture and non-
retail sale of electronic component parts. During the
past 12-month period, the Respondent shipped
products valued in excess of $50,000 from its Carolina,
West Virginia, plant direct to points outside the State
of West Virginia.
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,and its Local 679, AFL-CIO-CLC, 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 at the
Respondent's Carolina, West Virginia location, exclud-
ing office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
2 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(1) and 102.69(c)
2. The certification
717
On April 23, 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 6 designated the Union as their representa-
tive 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 October 7, 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
Commencing on or about October 18, 1971, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the' above-described unit. Commencing on or
about October 18, 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
October 18, 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.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 785; 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).3
The Board , upon the basis of the foregoing facts and
the entire record , makes the following:
CONCLUSIONS OF LAW
1. Hamilton Electronics Company 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, and its Local 679, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees at the
Respondent 's Carolina, West Virginia, location, ex-
cluding office clerical employees , professional em-'
ployees, guards , and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act.
4. Since October 7, 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 October 18, 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 to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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.
' The Union's request for a make-whole remedy is denied for the reasons
set forth in ExCell-O Corporation, 185 NLRB No 20.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act , as amended , the National Labor Relations
Board hereby orders that Respondent, Hamilton Elec-
tronics Company , 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 , and its ,Local 679, AFL-
CIO-CLC, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All production and maintenance employees at the
Respondent's Carolina , West Virginia, location,
excluding 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 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 Carolina , West Virginia, plant, copies
of the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 6, after being duly signed by Respond-
ent's representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notice to employees
are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered , defaced , or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing , within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event 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 "
HAMILTON ELECTRONICS COMPANY
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, and its Local 679, AFL-CIO-CLC, 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 Sec-
tion 7 of the Act.
WE WILL upon request bargain with the above-
named Union, as the exclusive representative 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 under-
standing in a signed agreement. The bargaining
unit is:
719
All production and maintenance em-
ployees at the Respondent's Carolina, West
Virginia, location , excluding office clerical
employees , professional employees, guards,
and supervisors as defined in the Act.
HAMILTON
ELECTRONICS
COMPANY
(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, 1536 Federal Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone 412-644-
2977.