Kal-Equip Co.

National Labor Relations Board - Board Decisions

Aug 16, 1977

231 N.L.R.B. 488 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kal-Equip Company and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW). Case 7-CA-
13918
August 16, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on March 28, 1977, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
Kal-Equip Company, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7, issued
a complaint and notice of hearing on April 8, 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 February 25,
1977, following a Board election in Case 7-RC-
13790, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about March 22, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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 April 18, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 28, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 6, 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 entitled "Respondent's
Response and Brief in Opposition to General
Counsel's Summary Judgment Motion."
' Official notice is taken of the record in the representation proceeding,
Case 7-RC-13790. as the term "record" is defined in Sees. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Elecirosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
231 NLRB No. 73
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 contests the
validity of the certification on the basis of its
objections to the election in the underlying represen-
tation case (7-RC-13790), and requests that the
Board reconsider its February 25, 1977, Decision and
Certification of Representative 2 on the basis of its
submission of December 21, 1976. The General
Counsel contends that Respondent is attempting to
relitigate matters which were or could have been
considered and disposed of in the prior representa-
tion proceeding and this it may not do. We agree
with the General Counsel.
A review of the record, including that of the
underlying representation case, reveals that an
election was held on October 20, 1976, pursuant to a
Stipulation for Certification Upon Consent Election,
in which the union prevailed by a vote of 185 to 163,
with no void or challenged ballots. Respondent filed
timely objections, alleging in substance union elec-
tioneering and misrepresentations, improper Board
agent conduct, and inadequate notice of election. On
October 27, 1976, after investigation, the Regional
Director directed a hearing on the issues of substan-
tial and material facts raised by the objections. After
a hearing was held on December 10, 1976, the
Hearing Officer issued a Report and Recommenda-
tions on Objections in which he found all the
objections to be without merit and recommended
that they be overruled and that the appropriate
certification issue. Respondent filed with the Board
exceptions and brief in support, reiterating its
objections, alleging that the Hearing Officer's report
failed to consider the cumulative effect of the
objected-to incidents which were substantial and
could have materially affected the conduct or result
of the election, and requesting that the election be set
aside and that a new one be held. On February 25,
1977, the Board, upon the entire record of the case,
issued a Decision and Certification of Representative
adopting the Hearing Officer's findings and recom-
mendations and certifying the Union. It thus appears
that Respondent is attempting to relitigate issues that
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Folletrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the N LRA, as amended.
2 Not reported in bound volumes of Board decisions.
488
KAL-EQUIP COMPANY
were considered and determined by the underlying
representation case and which do not warrant
reconsideration of the Board's Decision and Certifi-
cation of Representative.
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.3
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. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation duly organized under
the laws of the State of Michigan, at all times
material herein, has maintained its principal office
and place of business at 411 Washington Street,
Otsego, Michigan, the Main Plant, and maintains
another facility at the same location called the
Advance Meter Plant. Respondent is, and has been
at all times material herein, engaged in the manufac-
ture, sale, and distribution of automotive electronic
testing devices and related products. During the
preceding year, a representative period, Respondent,
in the course and conduct of its business operations,
purchased and caused to be transported and deliv-
ered to its Otsego, Michigan, plants goods and
materials valued in excess of $50,000, which were
transported and delivered to said plants directly from
points located outside the State of Michigan. During
the same period, Respondent, in the course and
conduct of its business operations, manufactured,
sold, and distributed at said plants products valued
in excess of $50,000, which were shipped from said
plants directly to points located outside the State of
Michigan.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
3 See Piulsburgh 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).
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
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.
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 full-time and regular part-time production
and maintenance employees employed by the
Employer at its facilities located in Otsego,
Michigan, including production technicians, tool-
room employees, and truckdrivers; but excluding
engineering technicians, office clerical employees,
customer service clerks, shipping secretaries,
production control clerks, Advance Meter depart-
ment clericals, professional employees, guards
and supervisors as defined in the Act.
2. The certification
On October 20, 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 the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on February 25, 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 March 3, 1977, 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. Com-
mencing on or about March 22, 1977, and continuing
at all times thereafter to date, the Respondent has
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since March 22, 1977, 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, 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
1. Kal-Equip Company 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 full-time and regular part-time production
and maintenance employees employed by the Em-
ployer at its facilities located in Otsego, Michigan,
including production technicians, toolroom employ-
ees, and truckdrivers; but excluding engineering
technicians, office clerical employees, customer
service clerks, shipping secretaries, production con-
trol clerks, Advance Meter department clericals,
professional 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 February 25, 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 March 22, 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)(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 the Respondent,
Kal-Equip Company, Otsego, 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 (UAW), as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
490
KAL-EQUIP COMPANY
All full-time and regular part-time production
and maintenance employees employed by the
Employer at its facilities located in Otsego,
Michigan, including production technicians, tool-
room employees, and truckdrivers; but excluding
engineering technicians, office clerical employees,
customer service clerks, shipping secretaries,
production control clerks, Advance Meter depart-
ment clericals, 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
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 Otsego, Michigan, facilities copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Director for Region 7, 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 thereaf-
ter, 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 (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 full-time and regular part-time pro-
duction and maintenance employees em-
ployed by the Employer at its facilities
located in Otsego, Michigan, including
production technicians, toolroom employ-
ees, and truckdrivers; but excluding engi-
neering technicians, office clerical employ-
ees, customer service clerks, shipping secre-
taries, production control clerks, Advance
Meter department clericals, professional
employees, guards and supervisors as de-
fined in the Act.
KAL-EQUIP COMPANY
491