Klingler Electric Corporation

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1247 (N.L.R.B. 1979)

KLINGLER ELECTRIC CORPORATION
Klingler Electric Corporation, Klingler Electronics Di-
vision, and Klingler Manufacturing Division and In-
ternational Union of Electrical, Radio & Machine
Workers, AFL-CIO-CLC. Case 15-CA 7347
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge and amended charge filed on July 5
and 16, 1979,1 respectively, by International Union of
Electrical, Radio & Machine Workers, AFL-CIO-
CLC, herein called the Union, and duly served on
Klingler Electric Corporation, Klingler Electronics
Division, and Klingler Manufacturing Division,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 15, issued a complaint and notice of
hearing on July 17 against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair 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 com-
plaint alleges in substance that on May 31 following a
Board election in Case 15-RC-6310 Union was duly
certified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit
found appropriate 2' and that, commencing on or
about June 13 and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so; and that,
commencing on or about June 13, and at all times
thereafter, Respondent has refused, and continues to
refuse, to supply the Union with information about
the composition of the.bargaining unit, the vacation,
holiday, pension, insurance, and other benefits en-
joyed by the employees in the certified unit, and a
copy of the plant rules applicable to the employees.
On July 30, Respondent filed its answer to the com-
All dates hereinafter are in 1979, unless otherwise specified.
Official notice is taken of the record in the representation proceeding,
Case 15-RC-6310, 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
LTV Electrosysrems, Inc., 166 NLRB 938 (1967), enfd, 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (D.C,Va., 1967):
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
plaint admitting in part, and denying in part, the alle-
gations in the complaint and stating its affirmative
defense. Respondent admits service, jurisdiction, and
the Union's labor organization status. It also admits
that on July 28, 1978, an election was conducted un-
der the supervision of the Acting Regional Director
for Region 15, and that on May 31 the Board issued a
Decision and Certification of Respresentation certify-
ing the Union as the exclusive collective-bargaining
representative of all the employees in the unit. It fur-
ther admits that on January 30 and June 6 the Union
requested that Respondent meet and bargain collec-
tively with the Union as the exclusive bargaining rep-
resentative of all employees in the unit, and that Re-
spondent furnish the Union with certain specified
information. Finally, Respondent admits that by a
letter dated June 13 it advised the Union as follows:
Please be advised tht Klingler Electric Corpo-
ration believes the National Labor Relations
Board decision overruling the Company's objec-
tions and certifying the results of the election
was erroneous. It is the Company's desire to
have the validity of said decision reviewed by a
federal court. Accordingly, your request that the
Company recognize and bargain with your or-
ganization is denied.
On August 6, counsel for the General Counsel filed
directly with the Board a Motion for Summary Judg-
ment, with appendixes attached. Subsequently, on
August 17, 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 there-
after 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 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 answer to the complaint, and in its response
to the Board's Notice To Show Cause, Respondent
admits the request and refusal to bargain, and admits
the request and refusal to supply the Union with cer-
tain information concerning employees in the bar-
gaining unit.3 However, Respondent asserts the the
I The information requested was a list of names, hiring dates, rates of pay.
and job classifications for all employees in the unit; a compilation of vaca-
tion and holiday policies for unt employees; copies of the pension plan and
all insurance policies, including but not limited to sickness, accident, medi-
cal, surgical and hospitalization. and life insurance covenng employees in the
(Continued)
245 NLRB No. 159
1247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's Certification of Representative is erroneous
and invalid on the basis that the results of the election
were improperly influenced by certain objectionable
conduct.
Our review of the record herein, including the rec-
ord in Case 15-RC 6310, indicates that on May 26,
1978, the Union filed a petition in which it sought to
represent certain of Respondent's employees. On
June 30, 1978, the Acting Regional Director issued
his Decision and Direction of Election. Thereafter, on
July 20, 1978, Respondent filed a request for review.
On July 27, 1978, the Board denied the request for
review, but concluded that a substantial issue was
raised concerning the supervisory status of eight lead
persons and amended the Acting Regional Director's
decision to permit them to vote under challenge.
On July 28, 1978, an election was conducted pursu-
ant to the decision, as amended, resulting in a vote of
32 to 15 in favor of the Union, with 9 nondetermina-
tive challenges. On August 3, 1978, Respondent filed
timely objections to conduct affecting the results of
the election.4
On September 26, 1978, the Acting Regional Direc-
tor issued a Supplemental Decision and Certification
of Representative overruling Respondent's objection
and certifying the Union.5
certified unit: a list of other benefits enjoyed by unit employees; and a copy
of applicable plant rules.
It is well settled that the collective-bargaining representative is entitled to
information relevant to its discharge of its collective-bargaining obligation.
Vertol Division, Boeing Company, 182 NLRB 421 (1970). Certain informa-
tion, specifically wage and related information pertaining to employees in
the bargaining unit, is presumptively relevant to the collective-bargaining
representative's statutory duty to represent employees. NL.R.B v. Curtiss-
Wright Corporation, Wright Aeronautical Division, 347 F.2d 61 (3d Cir. 1965).
4Specifically, Respondent claimed that () the Union improperly solicited,
recruited, and used the leadpersons-supervisors for prounion activities dur-
ing the election campaign:; (2) the Union improperly selected a leadperson-
supervisor as its observer during the election; (3) the NLRB agent conduct-
ing the election improperly permitted said leadperson-supervisor to serve as
the Union's election observer; (4) the Board's failure to timely notify Re-
spondent of its decision to permit the leadpersons to vote under challenge
created an impression that Respondent's position with respect to them was in
error and that the Board had decided this issue in the Union's favor; and (5)
employees were subjected to threats of economic and physical retaliation if
they did not join, support, or select the Union as their representative. Also,
dunng the investigation of the objections, Respondent contended that the
election should be set aside because during the election a leadperson called
the company observer a name and downgraded Respondent in the presence
of voters; the Union paid a day's wages to employees who attended the
NLRB hearing in the representation case; and the Board agent who con-
ducted the election substantially departed from the election schedule. For
convenience these last three allegations were labeled Objections 8, 9, and 10.
Respondent's Objection 6, which alleged misrepresentations by union agent,
and Objection 7, which was a general and imprecise allegation, were over-
ruled by the Acting Regional Director in his September 26. 1978, Supple-
mental Decision. As no request for review was filed regarding this action.
Objections 6 and 7 were waived from further consideration before the Board.
See Board's Rules 102.67(f) and 102.69(c).
On August 3, 1978, Respondent filed alternative motions to transfer the
case to the Board, to the General Counsel, or to another region, and a
motion to postpone investigation of the objections until the challenges were
resolved. The Acting Regional Director denied the motions on August 7,
1978, as lacking merit, but advised that he would reconsider the motion to
transfer upon completion of the investigation. Said motion was again denied
On October 17, 1978, Respondent filed with the
Board a request for review of the supplemental deci-
sion. On December 6, 1978, the Board granted Re-
spondent's request with respect to Objection 1, which
related to the alleged supervisory status and conduct
of Respondent's leadpersons; directed the Regional
Director to conduct a further investigation and to is-
sue a report on objection: stayed the Certification of
Representative; and denied Respondent's request in
all other aspects.
On January 25, 1979, the Acting Regional Director
issued his Report on Objection wherein he recom-
mended that Respondent's Objection I be overruled
in its entirety and that the Union be certified as the
exclusive representative of Respondent's employees
in the appropriate unit. On February 21, Respondent
filed its exceptions to the Report on Objection, and,
on March 29, filed a motion to consolidate the repre-
sentation case with pending unfair labor practice pro-
ceedings.
On May 31 the Board issued its Decision and Cer-
tification of Representative where it (1) adopted the
Acting Regional Director's finding that the allega-
tions in Objection I raised no substantial issues which
warrant setting aside the election, (2) found that Re-
spondent's allegations of bias and prejudice on the
part of the Acting Regional Director were lacking in
merit, (c) denied the Respondent's motion to consoli-
date the cases, and (d) certified the Union as the em-
ployees' bargaining representative.
In both its answer to complaint and its response to
the Board's Notice To Show Cause, Respondent as-
serts that affidavits obtained during the objections in-
vestigation are part of the record in the underlying
representation case, that they are "expressly incorpo-
rated" in Respondent's response and answer by a ref-
erence to them, and that the Board should examine
each affidavit adduced by Respondent's witnesses.
These assertions are contrary to the Board's Rules
and Regulations, Section 102.68, which defines what
constitutes the "record" in a representation case, and
to case law. E.g.. Prestolite Wire Division, Eltra Cor-
poration, 226 NLRB 327 (1976). Documents such as
affidavits which were related to the representation
case and were before the Acting Regional Director in
his disposition of election objections, are not part of
the record either in the representation case or in the
related unfair labor practice proceedings. E.g.. Presto-
lite, and Golden Age Beverage Company, supra. We
also find that such affidavits are not included in the
term "documentary evidence" as used in Section
102.69(g), of the Board's rules, which refers only to
"documentary evidence" submitted by. the parties
in the Acting Regional Director's September 26, 1978, supplemental deci-
sion.
1248
KLINGLER ELECTRIC CORPORATION
during the course of a hearing, and there was none
here. Prestolite, supra. Further, we respectfully dis-
agree with the Fifth Circuit's holding in N.L.R.B. v.
Osborn Transportation, Inc., 589 F.2d 1275, 1281-82
(1979), where the court held that affidavits submitted
in support of the employer's objections should be for-
warded to the Board as part of the record in the case,
and we respectfully decline to follow it. Moreover,
under the provisions of the Board's Rules, Section
102.69(g), Respondent could have submitted, but did
not submit, to the Board its affidavits supplied to the
Acting Regional Director, by attaching them to its
exceptions to the Acting Regional Director's Report
on Objection. In any event, the contents of the affida-
vits were fully set forth in Respondent's exceptions.
Where, as here, it appears from the Acting Regional
Director's Supplemental Decision and Report on Ob-
jection, and from the briefs in support of the request
for review and the exceptions that no substantial and
material issues exist, it was a proper exercise of our
discretion to deny the request for review and the ex-
ceptions on that basis. This finding is supported by
the Act's policy of expeditiously resolving questions
concerning representation. See, e.g., Trustee of Boston
University, 242 NLRB 110 fn. 4 (1979).
Finally, Respondent's assertions that it should have
an opportunity to examine all affidavits obtained dur-
ing the Region's investigation of the objections, and
that its due process rights were violated by the proce-
dure followed during the representation case, are
clearly without merit, for the history of the case
shows that at all stages due consideration was given
to Respondent and ample opportunity was afforded
Respondent to present its evidence and contentions.
Accordingly, we hereby deny Respondent's renewed
request to consolidate the instant case with currently
pending unfair labor practice proceedings as Respon-
dent has not asserted the existence of issues in com-
mon, or any other basis for consolidation.
It is well settled that in the absence of newly dis-
covered 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.6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
'See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we 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 RESPONDENT
Klingler Electric Corporation, Klingler Electronics
Division, and Klingler Manufacturing Division, a
Mississippi corporation with offices and a place of
business located in Jackson, Mississippi, is engaged in
the manufacture of electronic 'jig" boards for har-
nesses and in sheet metal fabrication. During the past
12 months, which period is representative of all times
material herein, Respondent, in the course and con-
duct of its business operations, purchased and re-
ceived goods and materials valued in excess of
$50,000 directly from points located outside the State
of Mississippi.
We find, on the basis of the foregoing, that Respon-
dent 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
International Union of Electrical, Radio & Ma-
chine Workers, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceedings
1. The unit
The following employees of the Respondent consti-
tutes a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All production and maintenance employees
employed by Respondent as its Jackson, Missis-
sippi, facility; excluding office clerical employ-
ees, guards, and supervisors as defined in the
Act.
2. The certification
On July 28, 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
1249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector for Region 15, designated the Union as their
representative 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 May 31, 1979, and the Union contin-
ues 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 June 6 and at all times
thereafter, the Union has requested the Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit, and has requested that Re-
spondent supply it with information about the com-
position of the bargaining unit, benefits presently re-
ceived by employees in the bargaining unit, and a
copy of the applicable plant rules. Commencing on or
about June 13 and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit, and to supply the Union
with the requested information, which is relevant to
the Union's duties as bargaining representative of the
employees in said unit.
Accordingly, we find that the Respondent has,
since June 13 and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit and has refused to supply the Union with the
requested relevant information. By such refusals, Re-
spondent 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
111, above, occurring in connection with the opera-
tions described in section I, above, have a close, inti-
mate, 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
We shall further order that Respondent, upon re-
quest, supply the Union with the requested informa-
tion.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Comany d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817: Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CoNt.usloNS OF LAW
1. Klingler Electric Corporation, Klingler Elec-
tronics Division, and Klingler Manufacturing Divi-
sion is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Electrical, Radio & Ma-
chine Workers, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Jackson, Mississippi, fa-
cility; excluding office clerical 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 31, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about June 13, 1979, 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 Re-
spondent in the appropriate unit, and to supply it
with the requested relevant information, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 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
1250
KLINGLER ELECTRIC CORPORATION
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 Rela-
tions Board hereby orders that the Respondent.
Klingler Electric Corporation, Klingler Electronics
Division, and Klingler Manufacturing Division, Jack-
son, Mississippi, 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 con-
ditions of employment with International Union of
Electrical, Radio & Machine Workers, AFL-CIO-
CLC, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees
employed by Respondent at its Jackson, Missis-
sippi, facility; excluding office clerical employ-
ees, guards, and supervisors as defined in the
Act.
(b) Refusing to furnish the International Union of
Electrical, Radio & Machine Workers, AFL-CIO-
CLC, with information pertaining to the unit compo-
sition, benefits currently received by employees in the
unit, and a copy of plant rules applicable to employ-
ees in the certified unit.
(c) 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Upon request, bargain collectively with the
above-named labor organization by furnishing the
said labor organization with the information re-
quested pertaining to unit employees, their benefits
and plant rules.
(c) Post at its Jackson, Mississippi, facility copies
of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
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."
Director for Region 15, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous 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.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
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 of Electrical, Radio & Machine
Workers, AFL-CIO-CLC, as the exclusive rep-
resentative of the employees in the bargaining
unit described below.
WE WILL NOT refuse to furnish the Union with
information necessary and relevant to the
Union's performance of its collective-bargaining
functions.
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 de-
scribed 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 bargaining unit is:
All production and maintenance employees
employed by the Employer at its Jackson,
Mississippi, facility; excluding office clerical
employers, guards and supervisor as defined in
the Act.
WE WILL, upon request, furnish the Union
with information concerning the composition of
the unit and benefits currently received by em-
ployees in the unit, and a copy of plant rules
applicable to employees in the certified unit.
KLINGLER ELECTRIC CORPORATION. KLING-
I.ER ELECTRONICS DIVISION, AND KLINGLER
MANUFACTURING DIVISION
1251