Hydro Conduit Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1996

278 N.L.R.B. 1121 (N.L.R.B. 1996)

HYDRO CONDUIT CORP.
Hydro Conduit Corporation and General Teamsters
Local 137, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America. Case 20-CA-17091
24 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed by the Union 12 May 1982,
the General Counsel of the National Labor Rela-
tions Board issued a complaint 22 June 1982 against
the Company, the Respondent , alleging that it has
violated Section 8(a)(5) and ( 1) of the National
Labor Relations Act.
The complaint alleges that on 31 March 1982,
following a Board election in Case 20-RC-15340,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate . (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board 's Rules and
Regulations , Secs . 102.68 and 102. 69(g), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 19 April 1982 the Company
has refused to bargain with the Union . The Compa-
ny filed an answer dated 6 July 1982 admitting in
part and denying in part the allegations in the com-
plaint.
On 1 December 1983 the General Counsel filed a
Motion for Summary Judgment . On 7 December
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Company's answer to the complaint admits
its refusal to bargain , but attacks the validity of the
Union's certification. The record, including the
record in Case 20-RC-15340, reveals that an elec-
tion was held pursuant to a Stipulated Election
Agreement on 23 July 1981. The tally of ballots
showed that of approximately 43 eligible voters, 21
voted for the Union and 20 against . There was one
challenged ballot. The Company filed an objection
to the election alleging that a ballot cast for the
Union should not have been counted because it
was marked on the back . The Regional Director
issued a report 20 August 1981 recommending that
both the challenge and the Company 's objection be
1121
sustained and that the results of the election be cer-
tified according to a revised tally of ballots show-
ing that the election had ended in a 20-20 tie. The
Union filed exceptions to the Regional Director's
recommendation . On 31 March 1982 the Board
adopted pro forma the Regional Director's recom-
mendation that the single challenge be sustained,
but reversed his conclusion that the ballot marked
on the back should not be counted. The Board
found that the "si" marking on the back of the
ballot unambiguously expressed the assent of the
Spanish-speaking voter to representation by the
Union. It therefore certified the Union according
to a second revised tally showing that the Union
had won the election by one vote. 260 NLRB 1352
(1982).
In its answer to the complaint and brief in oppo-
sition to the Motion for Summary Judgment, the
Company asserts that the Union 's certification is in-
valid because the Board failed to examine the con-
tested back-marked ballot before deciding to count
it as the winning vote for the Union . It bases this
assertion on the following grounds : ( 1) By failing
to examine the contested ballot, the Board abdicat-
ed its responsibility under the Act to review the
evidence relied on by the Regional Director in his
investigation of objections ; (2) the Board could not
find that the ballot was unamibiguous without actu-
ally seeing it.- For example, the "si" may have been
written within the outline of the "no" box showing
through from the front and therefore the ballot ar-
guably may have conveyed an intent to vote "no";
(3) the word "si" without an accent means "if" in
Spanish and the ballot would not therefore be an
unequivocal expression of voter assent if the accent
were missing; (4) the ballot tended to reveal voter
identity because it was marked in Spanish and only
a few of the Employer's employees are Spanish-
speaking.
The Board issued an Order 25 April 1984 direct-
ing the Regional Director for Region 20 to for-
ward the contested ballot to the Board. By 10 May
1984 letter, the Acting Regional Director for
Region 20 responded that all the ballots in Case
20-RC-15340, except the sustained challeged
ballot, had been destroyed according to standard
procedure in the Region . The Company is appar-
ently correct , therefore , in asserting that the Board
did not examine the contested back-marked ballot
in the underlying representation proceeding and
cannot do so now.
The Board 's Rules provide that when , as here,
the Regional Director disposes of objections and
challenges without a hearing and the case comes
before the Board , the Regional Director shall
transmit to the Board any documentary evidence
278 NLRB No. 155
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relied on in his report. 29 CFR §§ 102.69 (g)(1)(ii)
and (g)(2). We nevertheless conclude that the Re-
gion's failure to forward the contested ballot in the
underlying representation case does not invalidate
the election because the Company has not demon-
strated that it has been prejudiced by this omission.
The Company did not contest in its brief in opposi-
tion to the Union's exceptions ' in the representation
case that the "si" marking meant "yes" in Spanish.
The only argument the Company makes concern-
ing the ambiguity of the ballot in the present pro-
ceeding that it also raised in the prior representa-
tion proceeding rests on the Company's speculation
that the "si" was written within the outline of the
"no" box showing through from the front of the
ballot. Even assuming that the ballot was semitran-
sparent and the "si" was situated as the Company
speculates, we would not find this sufficient to cast
doubt on the Board's original conclusion that the
voter's assent to representation was clearly mani-
fested by the plain meaning of the Spanish word
for "yes" written on the ballot. The Company's re-
maining contentions are untimely.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations. The Company's contentions
concerning the presence or absence of an accent
mark and the tendency of the ballot to reveal voter
identity could have been litigated in the prior rep-
resentation proceeding. The Company does not
offer to adduce at a hearing any newly discovered
or previously unavailable evidence, and we have
held that it has not alleged any special circum-
stances that would require the Board to reconsider
the decision made in the representation proceeding.
Accordingly, we grant the Motion for Summary
Judgment.'
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, manu-
factures concrete pipe at its facility in Orland, Cali-
fornia, where it annually purchases products,
Member Babson did not participate in the underlying representation
proceeding . He joins his colleagues in granting the General Counsel's
Motion for Summary Judgment because the Respondent is not entitled to
litigate in this proceeding issues that were or could have been litigated in
the underlying representation proceeding.
goods, and materials valued over $50,000 directly
from outside the State. We find that the Company
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 23 July 1981, the
Union was certified 31 March 1982 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed by the
Hydro Conduit Corporation at its Highway
32, Orland, California plant, but excluding
office clerical employees, quality control em-
ployees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 13 April 1982, the Union has requested the
Company to bargain, and since 19 April 1982, the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 19 April 1982 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union and, if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
HYDRO CONDUIT CORP. 1123
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Hydro Conduit Corporation,
Orland, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with General Teamsters
Local 137, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica as the exclusive bargaining representative of the
employees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time production
and maintenance employees employed by the
Hydro Conduit Corporation at its Highway
32, Orland, California plant, but excluding
office clerical employees, quality control em-
ployees, guards and supervisors as defined in
the Act.
(b) Post at its facility in Orland, California,
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Re-
gional Director for 'Region 20, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with General
Teamsters Local 137, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America as the exclusive representative of the
employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All full-time and regular part-time production
and maintenance employees employed by the
Hydro Conduit Corporation at its Highway
32, Orland, California plant, but excluding
office clerical employees, quality control em-
ployees, guards and supervisors as defined in
the Act.
HYDRO CONDUIT CORPORATION
2 If 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 Nation-
al 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."