Hemco Corp.

National Labor Relations Board - Board Decisions

Dec 10, 1973

207 N.L.R.B. 764 (N.L.R.B. 1973)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hemco Corporation and District Lodge No. 71,
International Association of Machinists and Aero-
space Workers , AFL-CIO. Case 17-CA-5655
December 10, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on June 11, 1973, by District
Lodge No. 71, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, herein
called the Union, and duly served on Hemco
Corporation, herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 17,
issued a complaint on June 29, 1973, 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 an Administrative 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 May 15, 1973,
following a Board election in Case 17-RC-6481 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 June 1, 1973, 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, and to
supply certain information, although the Union has
requested and is requesting it to do so. On July 9,
1973, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On August 20, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 28,
1973, the Board issued an order transferring 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-
dent thereafter filed a response, entitled "Answer to
Notice To Show Cause."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
1 Official notice is taken of the record in the representation proceeding,
Case 17-RC-6481 , 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, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968);
207 NLRB No. 119
National Labor Relations Board has delegated its
authority 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 response to the
Notice To Show Cause, Respondent attacks determi-
nations made in the underlying representation Case
17-RC-6481. In particular, Respondent contends
that (1) the Board erred in setting aside the first of
the two elections herein, (2) the unit in the second
election should have been a two-plant unit including
employees of the Respondent's Windsor, Missouri,
plant, and (3) the Union's challenges to nine
employees found to be supervisors should have been
overruled and not sustained.
Our review of the record indicates that on October
27, 1970, during the course of the hearing in Case
17-RC-6481, the Respondent and the Union entered
into a Stipulation for Certification Upon Consent
Election, which provided for an election among the
employees in the stipulated production and mainte-
nance unit excluding, inter alia, supervisors at
Respondent's Independence, Missouri, plant. The
election was conducted on November 19, 1970, and
the tally of ballots indicated that of approximately 39
eligible employees, 18 cast ballots for, and 20 against,
the Union. The Union timely filed 10 objections.
After an investigation of the objections and the
report by the Regional Director and exceptions
thereto, the Board, on March 17, 1971, directed a
hearing. After issuance of the Hearing Officer's
report and the filing of exceptions thereto by the
Respondent, the Board, on October 4, 1971, issued
its Decision, Order, and Direction of Second Elec-
tion, in which it sustained the Union's Objection 6
(in part), set aside the first election, and, in accord
with its normal practice, directed that the second
election be conducted in the same unit.
The second election, which had been postponed
pending the processing of a related unfair labor
practice case,2 was conducted on June 16, 1972. The
tally of ballots indicated that of approximately 65
eligible employees, 28 voted for, and 18 against, the
Union and 11 ballots were challenged. As the
challenges were determinative, the Regional Director
conducted an investigation and, on November 15,
1972, issued his Report on Challenged Ballots in
which he recommended sustaining 10 of the chal-
lenges , 9 on supervisory grounds, and another
Golden Age Beverage Co., 167 NLRB 151, 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, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
2 Hemco Corporation, 194 NLRB 789, enfd. 471 F.2d 656 (C.A. 8, 1972).
HEMCO CORPORATION 765
because the employee was first employed after the
eligibility cutoff date. He also overruled the chal-
lenge to the 11th ballot, but recommended that it not
be opened and counted because it would not affect
the results of the election. Respondent again filed
timely exceptions to the Regional Director's report.
On May 15, 1973, the Board issued its Supplemental
Decision and Certification of Representative in
which it found that Respondent's exceptions raised
no material or substantial issues of fact or law which
would require a hearing, adopted the Regional
Director's report, sustained the challenges, and
certified the Union.
With respect to the Respondent's argument that
the Board erred in setting the first election aside, we
note that the United States Court of Appeals for the
Eighth Circuit has held that the same acts, upon
which the Board relied, constituted a violation of
Section 8(a)(1).3 With respect to its current conten-
tion that the original single-plant unit excluding the
Windsor plant is now inappropriate, the Respondent
stipulated to the contrary before the first election and
other than the bald assertions in its answer to the
complaint and response to the Notice To Show
Cause, it has made no offer of proof of intervening
facts which might support its present contention.
Finally, with respect to its argument that the Board
erred in sustaining the challenges to the ballots of
nine supervisors, we note (1) that Respondent took
the position at the preelection hearing that eight of
the nine were supervisors, (2) that the Regional
Director's report indicated that the evidence contem-
poraneous with the second election sustained his
supervisory findings, and, finally, (3) that the Board's
Supplemental Decision determined, in effect, that the
mere assertion in its exceptions to the Regional
Director's report that a newly hired personnel and
production manager had assumed the supervisory
duties of all nine raised no issues requiring a hearing.
However, the Respondent now urges that, even if
supervisory, the nine should be permitted to vote
because they spend the bulk of their time performing
unit work and because the Union has indicated that
it may accordingly require them to join it. We find
no merit in this argument. Only employees may vote
in a Board election and the Congress has conferred
no power upon the Board to enfranchise individuals,
such as supervisors who, by statute, are excluded
from the definition of "employee." 4
It thus appears that, except as discussed above, the
3 Hemco Corporation, supra. The Board has held that conduct violative of
Sec. 8(a)(I) is a fortiori conduct which interferes with an election . Dal-Tex
Optical Company, Inc., 137 NLRB 1782, 1786.
4 See Sees. 2(3), 9, and 14(a) of the Act
5 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).
6 The answer denies the allegation of the complaint that Respondent's
Respondent is attempting to relitigate issues herein
which were raised or could have been raised in the
underlying representation case.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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.5
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation 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 properly litigable in this unfair
labor practice proceeding.6 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Hemco Corporation, is now, and
at all times material herein has been, a Missouri
corporation engaged in the manufacture and distrib-
ution of molded fiberglass products at its plant
located in Independence, Missouri. In the course and
conduct of its business , Respondent annually sells
and distributes products valued in excess of $50,000
directly to customers located outside the State of
Missouri.
We find, on the basis of the foregoing, that
Respondent 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.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 71, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
"sole objective" in refusing to bargain was to test the validity of the
Certification of Representative But the June 1, 1973, letter to the Union,
appended to its answer , states "Your request [to bargain ] is denied we do
not believe that the Machinists Union has been properly certified . ." By
this clear admission, we find that Respondent has refused to bargain on the
grounds that the Board allegedly erred in certifying the Union.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of
the Employer's Independence , Missouri, plant
including truckdrivers, excluding office clerical
employees, professional employees, guards, and
supervisors as defined in the Act.
2. The certification
On June 16 , 1972, a majority of the employees of
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 17 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 May 15, 1973, 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 May 22, 1973, and at all
times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective -bargaining representative of all
the employees in the above-described unit. As
alleged in the complaint and admitted in the answer,
as an incident to such request hereof, the Union also
requested in said letter of May 22, 1973, that
Respondent furnish and supply the Union with
certain information necessary and relevant for
intelligent collective bargaining , to wit: ( 1) names
and addresses of all employees in the bargaining unit
with dates of hire , rates of pay, age, and sex; (2)
classifications and job descriptions of such employ-
ees; (3 ) a list and description of all fringe benefits
and copies of all benefit plans including cost figures;
(4) shift schedules and hours of work; (5) method of
computing overtime pay, incentive bonuses, profit
sharing plans , and pension plans; (6) information
and data concerning safety programs and safety
regulations ; and (7) copy of all existing plant rules
and regulations.
Commencing on or about June 1 , 1973, 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 and to supply any of the
information or data described above.
Accordingly , we find that the Respondent has,
since June 1, 1973, 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 , Respon-
dent 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 opera-
tions described 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 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, provide the requested and other
necessary and relevant information and data and
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
appropriate unit will be accorded the services of their
selected 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5,
1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, 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. Hemco Corporation is an employer engaged in
HEMCO CORPORATION
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District Lodge No. 71, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees of
the Employer's Independence, Missouri, plant in-
cluding truckdrivers, excluding office clerical em-
ployees, professional employees, 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 May 15, 1973, 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 June 1, 1973, and at all
times thereafter, to provide information necessary
and relevant for intelligent collective bargaining and
to bargain collectively with the above-named labor
organization as the exclusive bargaining representa-
tive of all the employees of Respondent 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 provide information
and 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 meaning 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
Relations Board hereby orders that Respondent,
Hemco Corporation, Independence, Missouri, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to provide information necessary and
relevant for intelligent collective bargaining and to
bargain collectively concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment with District Lodge No. 71, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
767
All production and maintenance employees of
the Employer's Independence, Missouri, plant
including truckdrivers, 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, provide information necessary
and relevant for intelligent collective bargaining and
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 understanding in a signed agreement.
(b) Post at its Independence, Missouri, plant copies
of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
Director for Region 17, 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
r 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 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 District
Lodge No . 71, International Association of
Machinists and Aerospace Workers , AFL-CIO,
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
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL , upon request , provide information
necessary and relevant for intelligent collective
bargaining and 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
understanding in a signed agreement . The bar-
gaining unit is:
All production and maintenance employ-
ees of the Employer 's Independence, Mis-
souri, plant including truckdrivers , excluding
office clerical employees , professional em-
ployees , guards, and supervisors as defined
in the Act.
HEMCO CORPORATION
(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 compli-
ance with its provisions may be directed to the
Board's Office , 616-Two Gateway Center, Fourth
at State, Kansas City , Kansas 64101 , Telephone
816-374-4518.