Howard Plating Industries

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1159 (N.L.R.B. 1977)

HOWARD PLATING INDUSTRIES
Howard Plating Industries, Inc. and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, UAW. Case
7-CA-14153
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on June 22, 1977, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, herein called the Union, and duly served on
Howard Plating Industries, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7. issued a complaint on June 28, 1977,
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 17, 1977,
following a Board election in Case 7-RC-13626 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about June 7, 1977, 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 July 7, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On July 18, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 26, 1977, 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. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Official notice is taken of the record in the representation proceeding.
Case 7 RC 13626, as the term "record" is defined in Secs. 102.68 and
102 69(g) of the Board's Rules and Regulations. Series 8. as amended. See
. I'L E/ec/rowriltems. Inc. 166 NLRB 938 (1967), enfd 388 F.2d 683 (C.A. 4.
231 NLRB No. 187
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 in response to
the Notice To Show Cause, Respondent contests the
validity of the certification on the grounds that the
representation election was tainted by objectionable
conduct on the part of the Union which effectively
destroyed the laboratory conditions required of
Board-conducted elections. The General Counsel
contends that Respondent's answer admits each and
every factual allegation of the complaint and that
Respondent is merely attempting to relitigate matters
which were or could have been disposed of in the
underlying representation proceeding. We agree with
the General Counsel.
Our review of the record, including that of the
underlying representation proceeding, Case 7-RC-
13626, reveals that, pursuant to a Stipulation Upon
Consent Election, an election was held on June 24.
1976, in which the Union prevailed by a vote of 27 to
21, with 3 challenged ballots. Respondent filed
timely objections, alleging, in substance, as follows:
(I) union material misrepresentations of fact con-
cerning (a) Respondent's policy regarding on-the-job
injuries and Respondent's rate of turnover in its three
area plants, (b) Respondent's amount of profit and
percentage of increased profits for selected periods,
(c) institution of union fines, assessment, and dues
liability of union members, and (d) wage rates of top
male employees and amounts received by employees
pursuant to Respondent's profit-sharing plant; (2)
union conduct including (a) threats and (b) coercion
of certain employees to quit their employment: (3)
employee conduct including (a) threats and (b)
coercion of certain employees to quit their employ-
ment; (4) that the totality of union conduct during
the critical period prior to the election effectively
foreclosed the existence of the laboratory conditions
necessary for a Board election.
Subsequently, on September 15, 1976, Respondent
requested that Objections 2 and 3 be withdrawn.
After investigation, the Regional Director, on No-
vember 17, 1976, granted the withdrawal request.
After due consideration of the remaining objections,
the Regional Director concluded that they did not
raise substantial or material issues with respect to the
election and recommended that they be overruled
and that an appropriate certification issue. The
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(C.A. 5. 1969); Intertlpe 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. 19%8; Sec.
9(d) of the N LRA. as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director was persuaded that any misrepre-
sentations or exaggerations which might have oc-
curred concerned issues not critical to the election or
involved statements which the employees could
evaluate based on their personal knowledge of their
workplace. On May 17, 1977, the Board issued a
Decision and Certification of Representative, 2 certi-
fying the Union as the collective-bargaining repre-
sentative of the employees in the appropriate unit.3
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.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, 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 require 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
proceeding. 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 RESPONDENT
Respondent is a Michigan corporation engaged in
the providing of electroplating services for various
manufacturing concerns. During the preceding cal-
endar year, it realized gross revenues in excess of
$500,000 and purchased and caused to be shipped
directly to its Madison Heights, Michigan, location
from plants located outside the State of Michigan
goods valued in excess of $50,000.
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.
Not reported in bound volumes of Board Decisions.
:' Members Penello and Walther agreed with the Regional Director that
the allegedly objectionable misrepresentations did not warrant setting the
election aside, but so found for the reasons set forth in Shopping Karl Food
Market, Inc., 228 NLRB 1311 (1977), wherein the Board majonty overruled
Hollyw ood Ceramics Company, Inc., 140 NLRB 221 (1962). Member Jenkins,
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW, is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production and maintenance employees,
including shipping and receiving employees, and
laboratory employees employed by the Employer
at its facility located at 32565 Dequindre Road,
Madison Heights, Michigan, excluding all office
clerical employees, managerial employees, guards
and supervisors as defined in the Act.
2. The certification
On June 24, 1976, 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 7, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on May 17, 1977, 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 24, 1977, and at all
times thereafter, the Union has requested Respon-
dent 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 June 7, 1977, and continuing at all times
thereafter to date, 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 Respondent has, since
June 7, 1977, and at all times thereafter, refused to
who dissented in Shopping Karl, agreed with the conclusion that the
objections should be overruled in view of the Regional Director's
application of the principles of Hollywood Ceramics.
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 102.69(c).
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HOWARD PLATING INDUSTRIES
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
II, 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, 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 (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);
Burnett 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
I. Howard Plating Industries, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including shipping and receiving employees, and
laboratory employees employed by the Employer at
its facility located at 32565 Dequindre Road,
Madison Heights, Michigan, but excluding all office
clerical employees, managerial employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since May 17, 1977, 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 7, 1977, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative 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 bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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)(l) 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 the Respondent,
Howard Plating Industries, Inc., Madison Heights.
Michigan, 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,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees,
including shipping and receiving employees, and
laboratory employees employed by the Employer
at its facility located at 32565 Dequindre Road,
Madison Heights, Michigan, excluding all office
clerical employees, managerial employees, guards
and supervisors as defined in the Act.
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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 facility located at 32565 Dequindre
Road, Madison Heights, Michigan, copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
'} 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 Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW, 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
Section 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
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 agree-
ment. The bargaining unit is:
All production and maintenance employees,
including shipping and receiving employees,
and laboratory employees employed by the
Employer at its facility located at 32565
Dequindre Road, Madison Heights, Michi-
gan, excluding all office clerical employees,
managerial employees, guards and supervi-
sors as defined in the Act.
HOWARD PLATING
INDUSTRIES, INC.
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